State v. Carter
| Decision Date | 30 November 1976 |
| Docket Number | No. 37384,37384 |
| Citation | 544 S.W.2d 334 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jardee CARTER, Defendant-Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Timothy Braun, Asst. Public Defender, Clayton, for defendant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Sam C. Bertolet, Asst. Pros. Atty., St. Louis County, Clayton, for plaintiff-respondent.
Defendant appeals from a judgment of conviction entered upon a jury verdict finding him guilty of stealing property valued over $50, § 560.156, RSMo 1969. A sentence of five (5) years imprisonment was imposed by the trial court under the Second Offender Act, § 556.280, RSMo 1969. We reverse and remand for a new trial.
On appeal, defendant raises three basic contentions. First, he alleges error in the trial court's failure to sustain his challenge for cause of a juror. Secondly, he contends that certain comments by the prosecutor during closing argument were beyond the scope of the evidence and constituted plain error. Thirdly, appellant launches a multipronged attack on § 560.156, RSMo 1969, on the basis that the failure of the statute to define 'value' makes it unconstitutionally vague. Building on this premise, appellant argues that the vagueness should be resolved in his favor and, therefore, that only evidence as to wholesale cost rather than retail price was properly admissible. Comments in the prosecutor's closing argument, made over appellant's objections, directing the jury's attention to retail price and to merchandising costs incurred by the retail store as properly considered in establishing a 'value' of over $50 are cited as further examples of the injection of inadmissible material.
We find error in the trial court's ruling on the prospective juror and, therefore, reverse the conviction. The other contentions of appellant will be discussed summarily for purposes of retrial.
On February 22, 1975, a security guard at a Kroger grocery store observed the appellant remove five bottles of Johnny Walker Red Label Scotch and three bottles of Canadian Club whiskey from a shelf, place them under his coat, and leave the store without paying for them. The security guard took appellant into custody as soon as he left the store. Over appellant's continuing objection that evidence as to retail value was inadmissible, evidence was introduced that the retail price of the five bottles of Johnny Walker Red Label Scotch was valued at $7.19 each, that two of the three bottles of Canadian Club whiskey retailed at $7.49 each with the one remaining bottle of Canadian Club whiskey retailing at $7.29. The aggregate retail value, therefore, was $58.22. Witnesses for the state also established that the absolute 'rock-bottom' cost of the stolen liquor was $50.10. This figure was derived from wholesale cost agreements between Kroger and the liquor distributors. The cost agreements reflected wholesale costs to Kroger of $6.18 each for the Johnny Walker Red Label Scotch as of December 16, 1974 and $6.40 each for the Canadian Club whiskey as of August 19, 1974. Since Kroger utilized no serial number inventory control system for liquor, the witnesses were unable to state whether the particular bottles stolen were purchased pursuant to these particular wholesale cost agreements or at an earlier date. The witnesses noted that the wholesale cost of liquor had been rising at a rate of 4% to 5% per year and that if any of the bottles were purchased prior to the date of the wholesale cost agreements referred to, the wholesale cost would, therefore, have been lower.
In a spirited closing argument, the prosecutor, over defendant's objection, discussed with the jury not only the 'rock-bottom' wholesale cost and the retail price but also suggested that the actual cost to Kroger of the merchandise had to exceed $50.10 because Kroger incurred merchandising costs. Without objection by the defendant, the prosecutor then made reference to skyrocketing prices and the jury's opportunity to combat that problem by conviction this defendant. Also, without objection by the defendant, the prosecutor emphasized the seriousness of the offense suggesting that the security guard had been in danger while apprehending the defendant. Finally, the state's attorney noted that sympathy for the defendant was not warranted in this case because the defendant was not 'the kind of man who is down on his luck and is stealing a little money to keep his kids going.' These latter comments and others of a similar nature are cited by the defendant as improper personalization of the argument to the jury and as beyond the scope of the evidence. Relief under the plain error rule is sought.
During the voir dire examination, defendant moved to strike a juror for cause based on the following exchange. In the course of the initial general questioning of all of the jurors, the following transpired:
'Q. Mr. Whaley, how long have you been married?
'A. I've been married, let's see, 11 years.
'Q. Do you have children?
'A. I have one stepdaughter, 15.
'Q. You're personnel supervisor for General Motors on Union?
'A. Yes, sir.
'Q. Okay. Now, I'm sure in that job you run across many people with many types backgrounds. Have you ever had to talk or come across the criminal justice system in your job? I mean, talk to people, the police about people's records?
'A. Yes.
'Q. Do you have any preconceived notions about the criminal justice system that would affect your judgment here.
Later, Mr. Whaley was asked the following questions:
Later, the following occurred:
Finally, the following exchange transpired:
'MR. BRAUN: All right. Now just because the police think a man is guilty that doesn't mean he necessarily is guilty. Does anybody have any problem with that?
'MR. Whaley, would you have any problem if a policeman thought the man was guilty?
As a result of the trial court's denial of defendant's motion to strike Juror Whaley for cause, the defendant was forced to expend one of his peremptory strikes to remove the juror. It is well-established in Missouri that the defendant is entitled to a full panel of qualified jurors before the exercise of his peremptory challenges, State v. Lovell, 506 S.W.2d 441, 443 (Mo.banc 1974); State v. Land, 478 S.W.2d 290, 292 (Mo.1972). To create this panel of qualified jurors, persons within the specific statutory exclusions must, of course, be deleted, §§ 546.110, 546.120, 546.140, 546.150, RSMo 1969. The specific statutory exclusions, however, are not exhaustive, State v. DeClue, 400 S.W.2d 50, 56 (Mo.1968) and '. . . if for any reason, statutory or otherwise, a venireman is not in a position to enter the jury box with an open mind, free from bias or prejudice, he is not a competent juror . . ..' Kendall v. Prudential Life Ins. Co. of America, 319 S.W.2d 1, 5 (Mo.App.1958), rev'd on other grounds, 327 S.W.2d 174 (Mo.banc 1959). In the present case, a careful consideration of the entire voir dire examination of Whaley reveals great uncertainty in the juror's mind as to his ability to be impartial because of his past association with law enforcement. We recognize that the exclusion of jurors is a matter within the sound discretion of the trial judge, State v. Cuckovich, 485 S.W.2d 16, 22--23 (Mo.banc 1972). We also note, however, that the language of the Supreme Court in State v. Lovell, supra, at 444, is as follows:
'. . . In exercising this discretion, the decision of the trial court should rest upon the facts stated by the juror with reference to his state of mind and should not be allowed to depend upon the conclusions of the juror whether he could or would divest himself of a prejudice he admitted to exist in his mind. . . .'
From the transcript in the present case, we can discover no such basis...
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