State v. Brandolese
| Decision Date | 30 June 2020 |
| Docket Number | No. SC 97697,SC 97697 |
| Parties | STATE of Missouri, Respondent, v. Mark C. BRANDOLESE, Appellant. |
| Court | Missouri Supreme Court |
Brandolese was represented by Amy M. Bartholow of the public defender's office in Columbia, (573) 777-9977.
The state was represented by Evan J. Buccheim of the attorney general's office in Jefferson City, (573) 751-3321.
W. Brent Powell, Judge Mark C. Brandolese appeals from the circuit court's judgment convicting him of one count of second-degree domestic assault and one count of armed criminal action. Brandolese raises six points of error, challenging the circuit court's failure to disqualify a juror, the jury instruction submitted on self-defense, the circuit court's response to the jury's question regarding the mental state for domestic assault, and two evidentiary rulings. The circuit court's judgment is affirmed.1
Brandolese and C.E. resided together as roommates. In March 2016, a neighbor called the police after C.E. appeared at the neighbor's home with blood on his face. C.E. repeatedly told the neighbor Brandolese hit him in the head with a cane.
Officer Todd Nappe responded to the neighbor's home and spoke to C.E., who appeared intoxicated. C.E. stated Brandolese cut him, and his injuries were photographed. Officer Nappe also observed a cut across C.E.’s chest. Officer Nappe followed a trail of blood from the neighbor's home to the apartment where Brandolese and C.E. resided.
When Officer Nappe spoke to Brandolese about the incident, Brandolese told Officer Nappe that, while he was asleep in a recliner, C.E. approached him and punched him in the face. Brandolese woke up, grabbed his walking cane, and hit C.E. with it. Brandolese stated the altercation moved into the bathroom, at which point Brandolese pushed C.E. into a vanity mirror, causing it to break. Brandolese admitted to Officer Nappe he "slashed" C.E. with a knife. Officer Nappe did not observe any visible marks on Brandolese consistent with his account of being punched in the face; however, Brandolese had blood on his left hand. Officer Nappe seized a blood-stained walking cane and a small folding pocket knife.
Brandolese was arrested and charged with first-degree domestic assault, armed criminal action, and unlawful use of a weapon.2 At trial, C.E. did not testify. Brandolese asserted self-defense but submitted outdated and improper self-defense instructions to the court. The circuit court submitted to the jury a self-defense instruction tendered by the State that was also an outdated version of the pattern instruction. The jury returned a verdict finding Brandolese guilty of a lesser-included offense, second-degree domestic assault, and armed criminal action. The circuit court sentenced Brandolese as a prior and persistent offender to concurrent terms of 15 years’ imprisonment for domestic assault and 10 years’ imprisonment for armed criminal action. Brandolese appeals.3
In his first point, Brandolese argues the circuit court plainly erred in failing to strike for cause Juror No. 16 because she was the sister of an assistant prosecuting attorney who participated in Brandolese's case. Brandolese claims Juror No. 16 was statutorily disqualified from serving on the jury pursuant to section 494.470.1, and the circuit court's ruling violated his right to a fair and impartial jury requiring reversal of his conviction and a new trial.
All parties agree that Juror No. 16 is related to Robert Anthony Farkas, who served as an assistant prosecuting attorney in Pettis County where Brandolese was convicted. Farkas signed the complaint charging Brandolese. Docket entries indicate Farkas appeared on the State's behalf in Brandolese's case on March 22, April 12, and May 17, 2016. On June 1, 2016, a grand jury indicted Brandolese. Docket entries do not contain any reference to Farkas participating in the matter after Brandolese's indictment was returned, and Farkas did not participate in Brandolese's trial in May 2017.
Phillip Sawyer, Pettis County's elected prosecuting attorney, represented the State at Brandolese's trial. During jury selection, Juror No. 16 responded to a question posed by defense counsel about being a crime victim. After Juror No. 16 gave her response to the question, the following exchange took place:
Neither party questioned Juror No. 16 further about her relationship with her brother, prior knowledge of the case due to the relationship, or whether the relationship would affect her ability to be fair and impartial.
While asserting challenges for cause, Brandolese made a contemporaneous objection to Juror No. 16 being seated on the jury because she was Farkas’ sister, but he did not argue or claim Juror No. 16 was statutorily disqualified as authority for striking her. The discussion was limited to Juror's No. 16's ability to be fair and impartial and included the following exchange:
Defense counsel did not use a peremptory strike to remove Juror No. 16, and she served on the jury. Brandolese's claim of error on this issue was not included in his motion for new trial and at no time during the proceedings before this appeal did Brandolese allege Juror No. 16 was statutorily disqualified from serving on the jury pursuant to section 494.070.1. Because Brandolese did not bring this alleged error to the circuit court's attention, Brandolese's claim is reviewed for plain error under Rule 30.20.5
Generally, this Court does not review unpreserved claims of error.
State v. Cella , 32 S.W.3d 114, 117 (Mo. banc 2000). Rule 30.20 alters the general rule by giving appellate courts discretion to review "plain errors affecting substantial rights may be considered in the discretion of the court ... when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20. "Plain error review is discretionary, and this Court will not review a claim for plain error unless the claimed error ‘facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted.’ " State v. Clay , 533 S.W.3d 710, 714 (Mo. banc 2017) (quoting State v. Brown , 902 S.W.2d 278, 284 (Mo. banc 1995), and Rule 30.20). "The plain language of Rule 30.20 demonstrates that not every allegation of plain error is entitled to review." State v. Nathan , 404 S.W.3d 253, 269 (Mo. banc 2013). "The plain error rule is to be used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review." State v. Jones , 427 S.W.3d 191, 195 (Mo. banc 2014). Unless manifest injustice or a miscarriage of justice is shown, an appellate court should "decline to review for plain error under Rule 30.20." Id. at 196. Finally, "the defendant bears the burden of demonstrating manifest injustice entitling him to" plain error review. State v. Oates , 540 S.W.3d 858, 863 (Mo. banc 2018) (quoting State v. Baxter , 204 S.W.3d 650, 652 (Mo. banc 2006) ).
Section 494.470.1 provides, in pertinent part, "no person who is kin to ... the injured party, accused, or prosecuting or circuit attorney in a criminal case within the fourth degree of consanguinity or affinity shall be sworn as a juror in the same cause." Brandolese argues his challenge to strike Juror No. 16 for cause should have been sustained pursuant to section 494.470.1. Brandolese contends the statute's use of "prosecuting or circuit attorney" refers to any attorney representing the State who participated in the prosecution of the case, making Juror No. 16 disqualified to serve on the jury. The State contends "prosecuting or circuit attorney" as used in section 494.470.1 applies only to the elected prosecuting attorney, not assistant prosecuting attorneys. Juror No. 16's brother was not the elected prosecutor, so the State argues the statute does not disqualify Juror No. 16.
This Court, however, need not decide whether the circuit court's failure to sustain Brandolese's challenge to strike Juror No. 16 for cause violated section 494.470.1 because Brandolese has not demonstrated the alleged error led to manifest injustice warranting plain error review. Rule 30.20. Assuming, without deciding, whether section 494.470.1 applies to the facts of this case and the circuit court erred in not striking Juror No. 16, Brandolese must still "facially establish[ ] substantial grounds for believing that manifest injustice or miscarriage of justice has resulted" to be entitled to plain error review and relief. Clay , 533 S.W.3d at 714 ; Oates , 540 S.W.3d at 863. Although Brandolese claims the circuit court's failure to disqualify Juror No. 16 pursuant to section 494.470.1 violated his right to a fair and impartial jury resulting in manifest injustice, there is no evidence or allegation beyond the alleged unpreserved error itself that Brandolese suffered an unfair or unjust trial. Brandolese, therefore, has not met his...
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