State v. Brown

• Decision Date: 14 March 1977
• Docket Number: No. 59348,59348
• Citation: 547 S.W.2d 797
• Parties: STATE of Missouri, Respondent, v. Marcella BROWN, Appellant.
• Court: Missouri Supreme Court

Page 797

547 S.W.2d 797

STATE of Missouri, Respondent, v. Marcella BROWN, Appellant.

No. 59348.

Supreme Court of Missouri, en banc.

March 14, 1977.

James C. Jones, Asst. Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.

BARDGETT, Judge.

Defendant-appellant Marcella Brown appealed to the court of appeals, St. Louis district, from her conviction of murder in the second degree and twenty-five year sentence. A three-judge panel of the court of appeals, by opinion, reversed and remanded the case for error in refusing to permit defense counsel to interrogate the jury panel on voir dire with reference to self-defense and held that defendant did not waive her objection by "accepting the jury" in the manner that appears infra, one judge dissenting. Thereafter, and on application of respondent, this court transferred the appeal pursuant to Art. V, sec. 10, Mo.Const., as amended 1970, because the opinion of the court of appeals appeared to conflict with State v. Turnbough, 498 S.W.2d 567 (Mo.1973). Much of the following opinion is taken from the court of appeals opinion of Clemens, J.

Defendant and victim Hugh Massey had occupied adjoining third-floor apartments in a converted residence in St. Louis. They shared a bathroom and defendant had complained to the apartment manager about Massey drunkenly soiling the bathroom. The manager ordered Massey to move out and locked his apartment; he told defendant not to let Massey back in. Defendant admitted to police: That night she heard someone breaking into a second-floor bathroom through an outer window; she got her shotgun and went down the hall to the bathroom; as Massey suddenly and drunkenly emerged from the bathroom she shot and killed him.

During the voir dire examination of the venire, defense counsel wanted to question the prospective jurors with regard to self-defense and accident. The court sustained the state's objection and refused to permit the interrogation. Appellant's complaint is based upon the following colloquy which took place at the bench.

"MR. ADAMS (Defense Counsel): . . . I intend to ask the jury to indicate to the jury that I anticipate that the Court may instruct the jury on the question of self-defense . . . Now with that in mind, I would ask the jury whether they could follow the law with respect to the burden of proof on (self-defense).

"MR. FRIEDMAN: (Assistant Circuit Attorney) Again, Your Honor, this is beyond the scope of voir dire examination. I object to any question the question is can you follow the law and that's the general one I asked. Everyone said he could follow the questions and the law.

"THE COURT: Sustained as to the last question (self-defense).

"MR. ADAMS: . . . It is on the State to prove beyond a reasonable doubt that . . . with respect to the question of self-defense, and the burden of proof is on the State to prove beyond a reasonable doubt that it was not self-defense. I don't want to go into the details of the case, but I think I have a right to ask the jury as to whether they would require the defense to prove self-defense . . . .

"MR. FRIEDMAN: . . . I think any speculation at this point, when no evidence is before the jury as to self-defense . . . I think is purely speculative and I think it is improper to go into at this point of the trial.

"THE COURT: Sustained." ¹

The constitutional right to a trial by jury would be a mockery of justice if it did not guarantee a jury with open minds, freely able to follow the law as declared by the trial court. Faught v. St. Louis-San Francisco Ry. Co., 325 S.W.2d 776(1) (Mo.1959). Deeply ingrained in Missouri law lies the principle that "a liberal latitude is allowed in the examination of jurors on their voir dire . . . The purpose of the examination by defendant of the panel on their voir dire is to develop, not only facts which might form the basis of a challenge for cause, but also such facts as might be useful to him in intelligently determining his peremptory challenges." State v. Granberry, 484 S.W.2d 295(4, 5) (Mo. banc 1972), citing a series of cases going back to the oft-cited case of State v. Mann, 83 Mo. 589 (1884). Specifically, a defendant has the right to discover whether prospective jurors have fixed opinions against applying the court-declared law of self-defense. Compare State v. Lassieur, 242 S.W. 900(2) (Mo.1922); State v. Dill, 282 S.W.2d 456(7-9) (Mo.1955).

That was the issue here. At the voir dire stage the defendant intended to and by the court's later instruction did submit the issue of self-defense. The jurors would be required to apply the principle that the burden of proof on this issue would not be on the defendant to establish it but upon the state to negate it. (MAI-CR 2.40) This is an apparent departure from the principle that the party asserting an "affirmative defense" has the burden of proving it. An average juror might well have a mental attitude against the converse principle in effect here. So, the defendant had good reason to determine if any venireman had a fixed opinion against the principle of requiring the state to disprove self-defense. If so, defendant would have a good ground for challenging for cause, or at least peremptorily striking, such a venireman.

"Since bias often lies deep within the minds of prospective jurors, counsel should be allowed a wide latitude to expose that bias." Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34(3) (Mo.App.1967). The principle was applied in the factually different case of State v. Hoelscher, 217 Mo.App. 156, 273 S.W. 1098(1) (1925), discussing a defendant's rights on voir dire to explore the minds of jurors to disclose mental factors which would impede a fair trial on the law and facts of the case before them. In Hoelscher defense counsel sought to learn if the veniremen belonged to any organization, particularly the Ku Klux Klan, having for its purpose the prosecution of criminal cases. The trial court refused to allow the inquiry. In reversing, the supreme court followed State v. Mann, supra, which held a defendant ". . . is entitled to an impartial jury, and may make such inquiries as will enable him to secure that constitutional right. Must he exercise his right of peremptory challenge, without the privilege of making inquiries, except such as relate to the competency of the panel? . . . If such is the law, the right of peremptory challenge may prove a snare and, at best, is of no earthly value to the accused." And, the Hoelscher court added: ". . . But the questions asked in this case, and the information sought to be obtained, was proper if the right to trial by a fair and impartial jury is to remain inviolate. The information sought was within reasonable limits, and the trial court erred in refusing to permit counsel to examine the panel with respect to their affiliations with, or membership in, the Ku Klux Klan." The proposed inquiry here was different, but just as reasonable an effort to select a fair-minded jury.

We realize a litigant's method of challenging a trial court's ruling on permissible voir dire questions should be specific. In Littell, supra, we followed State v. Mosier, 102 S.W.2d 620(7) (Mo.1937): "The correct procedure is for counsel to ask the members of the panel whether, if the court later instructs them in a specified manner, they have any opinion or conscientious scruples such as would prevent them from returning a verdict accordingly." At 423 S.W.2d 38, we added: "The question would have been better if it had simply asked the panel whether any of them had a fixed opinion against the proposition that in a case of this kind . . ." (the burden would be on the state to show defendant did not act in self-defense).

In the instant case we cannot condemn defense counsel for not asking such a precise question because he was not permitted to ask his question. But we hold "the wide latitude allowed litigants to discover bias demanded that the defendant, in the interest of securing a fair and impartial jury, be allowed to make proper inquiry on the subject." Littell, supra, (7). By defendant's "proffer" her counsel told the trial court he proposed to ask the veniremen if they could follow the principle of the state having the burden of disproving self-defense. To this, the state objected that this had been covered by the state's previous general question about whether the veniremen can "follow the law". The state's general question did not cover defendant's proposed inquiry about the critical issue of the state's burden to disprove self-defense.

We do not have before us a specific voir dire question. But it is clear defense counsel made known to the trial court he wanted to learn if the veniremen's minds were open or closed to the principle that the burden of proof would be on the state to disprove self-defense. This was vital to the defendant's right to have an unbiased jury. The trial court erred in barring defendant from exercising this right.

After the colloquy set forth supra, the proceedings were resumed within the hearing of the jury panel, the voir dire examination completed, and the jury selected seated. Just before the jury was sworn, the record reflects the following colloquy took place which is the basis for the respondent's contention that the defendant waived her right to examine the panel reference self-defense by "accepting" the jury.

"THE COURT: Is that the accepted panel, gentlemen?

"MR. FRIEDMAN: It is, Your Honor.

"MR. ADAMS: Yes, Your Honor.

"At this time the jury panel was sworn."

The respondent contends that this constituted a waiver of any objections to the selection of the jury and that the court of appeals decision is in conflict with State v. Turnbough, 498 S.W.2d 567 (Mo.1973). In Turnbough the defendant objected to certain questions asked by the prosecutor on voir dire which the defendant claimed were intended to commit the jury to a...