State v. Duckett, s. 16395

CourtCourt of Appeal of Missouri (US)
Citation849 S.W.2d 300
Docket NumberNos. 16395,18037,s. 16395
PartiesSTATE of Missouri, Respondent, v. Garth Wayne DUCKETT, Appellant. Garth Wayne DUCKETT, Appellant, v. STATE of Missouri, Respondent.
Decision Date17 March 1993

Judith C. LaRose, Columbia, for appellant.

William L. Webster, Atty. Gen., Aundreia R. Alexander, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Presiding Judge.

After his first trial ended in a deadlocked jury, Garth Wayne Duckett ("Appellant") was tried anew and found guilty by a jury of the class A felony of assault in the first degree, § 565.050. 1 The trial court found Appellant to be a prior offender, § 558.016.2, and a persistent offender, § 558.016.3, and imposed a 30-year sentence. Appellant brings appeal 16395 from that judgment.

While appeal 16395 was pending, Appellant commenced a proceeding per Rule 29.15 2 to vacate the judgment. After an evidentiary hearing, the motion court entered findings of fact, conclusions of law, and an order denying relief. Appellant brings appeal 18037 from that order.

We consolidated the appeals, Rule 29.15(1 ), but address them separately in this opinion.

Appeal 16395

Appellant presents two points relied on; the first avers the trial court erred in denying Appellant's request for a mistrial after a comment by a venire member during voir dire; the second asserts the trial court erred in denying Appellant's motion for new trial in that the guilty verdict resulted from perjured testimony by the victim.

Because the sufficiency of the evidence to support the verdict is unchallenged, we set forth only the evidence pertinent to Appellant's claims of error.

The victim was Gregory Wade Fosdick. On May 11, 1988, he was near Kellogg Lake in Jasper County. Several others were there, including Harry Spry and Appellant.

Fosdick testified he walked past Appellant, and shortly afterward "felt something hit me in my back." Fosdick continued:

... I turned around immediately and Garth ... had his hand behind his back and he just stood there with a sneer on his face, patting his foot ... and I--what are you doing? Why did you hit me? He didn't say nothing. I said you better explain yourself to me ... he didn't say nothing and I said you better defend yourself and I started to go to him and I took two steps and I felt something real bad and I reached around there and my finger went in a hole and just blood pouring out on me, and I said you son of a bitch, you stuck me and he said, "That's right motherf______, and I'm going to kill you," and he swung at my face with that knife again and I got out of the way and took off running....

Fosdick made his way to the home of an acquaintance; from there he was taken by ambulance to a hospital. A surgeon determined Fosdick had sustained a knife wound in his abdomen; his liver was lacerated. Following emergency surgery, Fosdick was hospitalized seven days.

During voir dire, the prosecutor was asking whether the venire knew possible witnesses. This exchange occurred:

Mr. Crandall 3: Harry Spry, I know Harry has been in Carthage for a number of years, I suspect he is a lifetime resident, anyone know Harry?

Venireman Cole: Yes.

Mr. Crandall: Mrs. Cole?

Venireman Cole: I do not know Harry, but I know his ex-wife and she and I are really good friends.

Mr. Crandall: Anything about your acquaintanceship with his ex-wife that would cause you to have a problem assessing all of the evidence as it may come from this witness stand here today?

Venireman Cole: I would have a problem believing anything that Harry said.

The Court: I couldn't hear the answer.

Venireman Cole: I would have a problem with anything that Harry Spry said.

The Court: Okay, Mrs. Cole, Miss Cole you are excused for cause. Thank you.

As Ms. Cole departed, a bench conference took place. The transcript shows:

Mr. Zuzul 4: I move for a mistrial at this point.

The Court: Why is that?

Mr. Zuzul: Your Honor, Mr. Spry is a pretty important witness and I think this juror has probably contaminated the rest of the jury panel against him.

The Court: Motion for mistrial is denied.

Appellant presented Spry as a defense witness. Spry testified he saw Fosdick turn to Appellant and say, "Did you hit me Garth?" Spry denied seeing Appellant strike Fosdick. Spry added, "Everybody down there heard it, but nobody seen it." Spry avowed he "didn't see no blood or nothing."

Spry's direct and cross-examination revealed the following convictions: 1968, "first degree armed robbery," for which he "served seven years"; 1978, felony car tampering; 1984, felony stealing; 1986, "the felony of interference with custody of a child"; and "driving while revoked." Spry acknowledged Appellant had lived with him "for periods of time," and that he (Spry) had been drinking beer and whiskey "all day" on the date of the stabbing.

Appellant, testifying in his own defense, swore he neither hit nor stabbed Fosdick.

Appellant's first point maintains the comments by venire member Cole about Harry Spry tainted the entire venire and neither the trial court nor counsel "tried to rehabilitate the remaining panel of prospective jurors."

The law pertinent to Appellant's first point appears in State v. Evans, 802 S.W.2d 507 (Mo. banc 1991). There, the accused was charged with raping a nine-year-old girl. During voir dire, a venireman said, "Everybody's got some kind of thoughts, what he did to this nine year old girl." The accused's challenge for cause was granted, and the venireman was excused. The accused then moved to quash the entire venire, or alternatively for a mistrial. Both motions were denied but, at the accused's request, the trial court instructed the venire that anything said by a juror does not constitute evidence. Id. at 514. On appeal, the Supreme Court of Missouri explained:

The trial court has broad discretion in determining if a jury panel should be dismissed and its ruling should not be disturbed on appeal absent a clear abuse of discretion. State v. Cotton, 724 S.W.2d 649, 652 (Mo.App.1986). Usually, disqualification of an individual juror for bias or expression of an opinion is insufficient for challenging the entire array. State v. Weidlich, 269 S.W.2d 69, 71 (Mo.1954). To merit quashal, movant must demonstrate that the venireman's questionable responses were so inflammatory and prejudicial that it can be said a right to a fair trial has been infringed. State v. Harrell, 637 S.W.2d 752, 757 (Mo.App.1982).... In ... Weidlich, ... a venireman stated during voir dire, "I don't think I can give a thief a fair trial" and he was stricken from the panel. The trial judge admonished the remaining members to disregard comments made by one of their number as such was not evidence and ... this Court found no abuse of discretion. [269 S.W.2d] at 71.

In the present case [the venireman] was stricken and the trial judge instructed the panel to disregard his comments. The lone remark was not such as to inflame or prejudice the other prospective jurors and we find no abuse of discretion in refusing [the accused's] motion to quash or for a mistrial.

802 S.W.2d at 514-15[17-19].

In arguing the trial court committed reversible error by denying the motion for mistrial, Appellant points out that in Evans and Weidlich (Weidlich is discussed in the excerpt from Evans, above) the trial court admonished the venire to disregard the depreciatory comments. Here, that was not done. Consequently, says Appellant, we cannot assume the jurors disregarded Ms. Cole's comments "on their own volition."

Appellant did not ask the trial court to direct the jury to disregard Ms. Cole's remarks, hence any error by the trial court in failing to do so has not been preserved for review. Cf. State v. Cummings, 765 S.W.2d 366, 369 (Mo.App.1989). See also: State v. Cheatham, 340 S.W.2d 16, 20 (Mo.1960).

Furthermore, when the motion for mistrial was denied, Appellant's lawyer may have concluded it was better strategy to proceed without the trial court focusing the venire's attention on Ms. Cole's comments by an admonition to disregard them.

More importantly, however, Spry's criminal pedigree blighted his credibility far more than Ms. Cole's responses. In view of Spry's past crimes, his drinking on the date of the stabbing, and his relationship with Appellant, the effect, if any, of Ms. Cole's comments on Spry's credibility was negligible.

As explained in Evans, 802 S.W.2d at 514, a venire should be quashed only if one of its members says something so inflammatory and prejudicial that the accused's right to a fair trial is infringed. Because of what the jury learned about Spry during trial, Ms. Cole's expression of skepticism about his credibility became inconsequential and did not undermine Appellant's right to a fair trial. His first point is denied.

Appellant's second point is based on an incident that allegedly occurred hours after the verdict. Evidence about it was presented during the hearing on Appellant's motion for new trial.

Billy Joe Lesher testified he was lodged on the west side of the Jasper County Jail the day Appellant was tried. Around "dusk," said Lesher, he heard a voice outside. Through an open window, Lesher saw Fosdick "standing in the parking lot across from the jail." Lesher did not recall seeing anyone with Fosdick. Asked what he heard Fosdick say, Lesher answered:

I heard him saying that he was on the stand and he was lying. And whenever Garth was on the stand, he was telling the truth. And the whole thing was just a big blowover and Garth got convicted and it wasn't his fault. And he knew it wasn't his fault.

Lesher revealed he had pled guilty to one "bad check" felony and had two misdemeanor check convictions. On the date of Appellant's trial, Lesher and Appellant had been cellmates 30 days.

Joseph Eugene Paugh, another jail inmate, testified he saw Fosdick outside the jail the night of Appellant's trial. Paugh's version was:

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