State v. Brown, 78919
| Decision Date | 21 January 1997 |
| Docket Number | No. 78919,78919 |
| Citation | 939 S.W.2d 882 |
| Parties | STATE of Missouri, Respondent, v. Franklin D. BROWN, Appellant. Franklin D. BROWN, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
Rose M. Wibbenmeyer, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Kurt U. Schaefer, Andrew J. Lay, Assistant Attorneys General, Jefferson City, for respondent.
Franklin D. Brown was charged with two felony counts, delivery of an imitation controlled substance and trafficking drugs in the second degree. At his trial, during voir dire, the prosecutor asked the venire panel:
Has anybody here ever been involved in the prosecution or defense of a criminal case? In other words, have you ever gone to court to help a friend out, testify in a criminal case, or been a state's witness in any type of case? Anybody been called to testify? I see no hands. Is there anybody here who has a family member or close personal friend who has ever been charged or arrested or convicted of a crime?
These questions elicited responses from several venirepersons.
Some of these responses were made in open court. Some venirepersons responded at sidebar outside of the hearing of the rest of the panel. All of the responses in open court concerned arrests or convictions of friends or relatives of venirepersons. The only two responses concerning personal arrests or convictions were made at sidebar. One of the two venirepersons that approached the bench for a sidebar did not do so during the prosecutor's voir dire. After the prosecutor finished her voir dire, the court recessed. When court resumed, the venireperson asked to approach the bench. With both the prosecutor and defense counsel present, he stated:
I don't want to make an improper question on the proceedings. I heard the prosecuting attorney ask this morning if any of the prospective jurors had relatives or friends with a prior conviction. I expected that she might ask the jurors the same question and I did not hear it and I didn't know if my hearing failed me or if she didn't ask it.... I don't know if she is supposed to ask or not, but I didn't hear it.
When proceedings resumed in open court, defense counsel did not ask the venire panel about personal arrests or convictions in her voir dire.
Mr. DeShurley did not respond when the prosecutor asked about previous involvement in the prosecution or defense of a criminal case. He was selected to serve on the jury. Mr. Brown was convicted on both counts. After the trial and before the deadline for filing a motion for new trial, the court received certain information regarding Mr. DeShurley. 1 Mr. Brown's motion for new trial alleged that Mr. DeShurley had an arrest record and had been convicted of "at least one conviction with one incident dealing with a controlled substance." 2 This motion was not accompanied by any supporting exhibits or affidavits. The court overruled the motion and stated for the record that it had reviewed the voir dire portion of the transcript. Following opinion by the Missouri Court of Appeals, Eastern District, this Court granted transfer. We affirm the judgment.
When juror misconduct occurs during a felony trial, the verdict will be set aside unless the state affirmatively proves that despite the misconduct, the other jurors were not subjected to improper influences. 3 The burden of proof does not shift until misconduct is established, however. 4
The trial court found that no juror misconduct occurred at Mr. Brown's trial. Trial court decisions concerning juror misconduct will not be disturbed absent a finding of abuse of discretion on review. 5 A trial court will be found to have abused its discretion when a ruling is:
clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable [persons] can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. 6
Mr. Brown alleges that the trial court abused its discretion in finding that Mr. DeShurley's alleged failure to disclose his criminal record during the prosecutor's voir dire did not constitute juror misconduct. A venireperson cannot be found to have intentionally concealed an answer to a question that was never asked. 7 It must be established that the relevant subject matter was actually explored by counsel during voir dire before a juror's silence can be found to be an intentional concealment of the truth. 8 The record supports a finding that the questions asked did not specifically address the criminal records of the members of the venire panel.
On its face and out of context, the introductory question "Has anybody here ever been involved in the prosecution or defense of a criminal case?" could be construed to refer to prior arrests or convictions: the defense of a criminal case follows an arrest; the defense of a criminal case necessarily involves any named defendant; an unsuccessful defense results in a conviction.
When considered in context, however, it is logical to conclude that the question did not directly ask members of the venire panel if they had ever been arrested or convicted. Immediately after asking the introductory question, the prosecutor said "in other words" and then continued with more specific questions:
As evidenced by the confusion of the...
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