State v. Carnes, 70069
| Decision Date | 13 May 1997 |
| Docket Number | No. 70069,70069 |
| Citation | 945 S.W.2d 594 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Antwon CARNES, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
David C. Hemmingway, Asst. Sp. Public Defender, St. Louis, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa A. Fischer, Asst. Atty. Gen., Jefferson City, for Respondent.
Antwon Carnes (defendant) appeals from his sentence of five years imprisonment following a jury's verdict finding him guilty of carrying a concealed weapon.
On appeal, defendant contends the trial court erred in: (1) denying his motion to strike juror Murphy for cause based upon her statements that police start off with extra credibility when they take the stand compared to non-police witnesses; (2) denying his objection when the state used five of its six peremptory strikes on black jurors because the state gave a pretextual reason in that the jurors lacked a stake in the court proceedings based upon "transitory employment" and (3) allowing the evidence to be admitted that defendant had in his possession $202.00 when taken into custody because this invited inflammatory speculation that defendant committed uncharged crimes.
Defendant does not contest the sufficiency of the evidence. In a light most favorable to the jury's verdict the record indicates that on January 5, 1995, Officers Hines, Stokes and Davis set up a Street Corner Apprehension Team (SCAT) unit around the area of Angelica and 21st Street. Officer Hines was the designated undercover agent and the other officers were in "rover" and arrest units. Officer Hines asked a woman if she knew where he could buy "a twenty."
The woman got into the unmarked police car with Hines and directed him to a house on 21st Street. Hines gave the woman a twenty dollar bill and she exited the vehicle. The woman approached three individuals standing on the front porch of the house. Two of the individuals went inside but the third, defendant, stayed on the porch. Officer Stokes, who was parked in another unmarked vehicle, testified that the woman and defendant exchanged something in a "hand to hand transaction." After the transaction, the woman brought "a twenty" piece of "crack" cocaine back to Hines who was still sitting in his vehicle. Hines then signaled to the other SCAT units in the area. The woman, defendant and the other two individuals were arrested. A loaded .38 revolver and $202.00 were recovered from defendant.
He was charged with one count of distribution of a controlled substance and one count of carrying a concealed weapon. The state presented the testimony of numerous police officers and a police criminologist. Defendant did not testify but presented the testimony of one witness, Officer Mueller. Officer Mueller prepared the police report of the incident which resulted in defendant's arrest. On direct, Mueller stated that the report showed the "hand-to-hand" transaction occurring between the woman and a third party, not the defendant. On cross, Officer Mueller noted that a mistake had been made and that a correction to the report had been issued to the circuit attorney's office.
The jury found defendant guilty of carrying a concealed weapon, but was unable to reach a verdict as to the distribution charge. Defendant was sentenced to five years imprisonment.
In his first point on appeal, defendant contends the trial court erred in denying his motion to strike venireperson Murphy for cause. Venireperson Murphy answered questions concerning the defendant's right not to testify and the presumption of defendant's innocence. Subsequently, the following colloquy occurred between defense counsel and venireperson Murphy:
[Defense]: ... I would like to know how many of you are related or have friends that are police officers ... Miss Murphy?
[Murphy]: Yes, My cousin is a police officer and then I have friends that are police officers.
* * *
[Defense]: Would anything about that or any knowledge that you have, something about that, affect you in this case?
[Murphy]: No, I would hope not, no.
[Defense]: You would hope not. You're not sure?
[Murphy]: No, I'm not sure.
[Defense]: How would it affect you?
[Murphy]: I often only hear one side of the story from them, and these are people that I know and trust so I would believe it to be true.
[Defense]: And even though you haven't heard any evidence in this case, you think it could have an effect on you?
[Murphy]: Yes.
[Defense]: ... Would [the police] be more apt to tell the truth than somebody else who testifies?
[Murphy]: No.
* * *
[Defense]: Okay. Do you think that they have special abilities which would make them better at remembering things or--
[Murphy]: I think that they're in situations, often in situations often where this is their job, this is what they're supposed to do, so, you know, they would be more attuned to what's going on than say someone--Am I making sense? I mean this is what they get paid to do. Let's hope they do it well.
[Defense]: So when a police officer testifies you're going to add some credibility to his testimony because he is a police officer? ...
[Murphy]: I really don't know if I would go that far ...
[Defense]: Would you assume they do their job well?
[Murphy]: Yes.
[Defense]: Could you consider that a police officer would lie?
[Murphy]: Sure.
[Defense]: Under oath?
[Murphy]: Yes.
* * *
[Defense]: You just said that you assumed that a police officer does his job well.
[Murphy]: Correct.
[Defense]: Would that assumption affect your determination about whether that witness is credible?
[Murphy]: Not if it was proven to me ... that they had said something that was a lie or incorrect, then, no, I wouldn't.
[Defense]: Okay. But they would kind of start with something extra?
[Murphy]: Yes.
No further questions were asked of venireperson Murphy.
Defense counsel moved to strike venireperson Murphy for cause because "she indicated that a police officer's testimony would have added credibility," and that she thought that they "would start with something extra." The trial court did not independently question venireperson Murphy and denied the motion because "she ultimately indicated that she would treat a police officer like any other witness." Murphy served on the jury.
In criminal cases, a defendant is entitled to a panel of qualified jurors. State v. Draper, 675 S.W.2d 863, 865 (Mo. banc 1984). The trial court is accorded wide discretion in ruling on challenges for cause, but also has a duty to closely evaluate, and at times, independently examine, the qualifications of potential jurors. Id. The absence of an independent examination by a trial judge justifies a more searching review by an appellate court of the challenged juror's qualifications. Id.
No clear line can be drawn as to when a challenge for cause should or should not be sustained; each case must be judged on its particular facts. Draper, 675 S.W.2d at 865. However, a venireperson is disqualified where she expresses a fixed partiality toward police officer testimony because the bias of credibility is contrary to the interest of the litigant. Id.
Although errors in the exclusion of potential jurors should always be on the side of caution, reversal is required only if the defendant has been prejudiced. Draper, 675 S.W.2d at 865. The defendant has been held not to be prejudiced when the police officer did not provide any elements of the state's case, where the more important evidence came from other witnesses and where the officer did not testify to any truly contested issues. Id. However, when the major witnesses against a defendant are the individuals the venireperson is biased towards, the venireperson should be eliminated for cause. State v. Jones, 692 S.W.2d 343, 346 (Mo.App.1985). This is especially true in a case where almost all of the state's evidence comes from police officers. Draper, 675 S.W.2d at 865.
Here, all of the state's substantive witnesses were police officers and an employee of the police department. Each officer testified that he had a different vantage point and saw certain...
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State v. Colbert
...establish "forcible compulsion," an element of all three of the offenses with which appellant was charged. See, e.g., State v. Carnes, 945 S.W.2d 594, 597 (Mo.App.1997) (stating that evidence of a separate crime is admissible if it establishes an element of the crime in question). Because t......