State v. Edmonson, No. 17685

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSHRUM
Citation827 S.W.2d 243
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Michael EDMONSON, Defendant-Appellant.
Decision Date11 March 1992
Docket NumberNo. 17685

Page 243

827 S.W.2d 243
STATE of Missouri, Plaintiff-Respondent,
v.
Michael EDMONSON, Defendant-Appellant.
No. 17685.
Missouri Court of Appeals,
Southern District,
Division Two.
March 11, 1992.
Motion for Rehearing or Transfer
Denied March 30, 1992.

Page 244

Brad B. Baker, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Robert Alan Kelly, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SHRUM, Presiding Judge.

The defendant Michael Edmonson appeals his conviction, by a jury, of rape, a violation of § 566.030.3, RSMo Supp.1990, 1 and his sentence to five years' imprisonment in accordance with the jury's recommendation.

Two issues presented on appeal are whether the trial court prejudicially erred in overruling the defendant's challenge for cause of a venireperson because of her alleged equivocal answer about possible partiality toward the testimony of a police officer and whether a jury instruction defining "proof beyond a reasonable doubt" allowed the jury to convict the defendant on a degree of proof below that required by due process. Finding no reversible error, we affirm.

FACTS

Briefly, the facts relating to the offense follow. On Saturday, November 17, 1990, the victim, age 13 years, met the defendant on Main Street in Joplin. The victim knew the defendant as a friend of her brother. After they met, the victim went with the defendant to his apartment. After arriving at the apartment, the defendant had sexual intercourse with the victim.

Later that night the victim was taken to a hospital by her mother. There an emergency room doctor examined the victim, using a standard rape kit.

Pertinent facts surrounding juror qualifications follow. During voir dire the state asked the jury panel if anyone knew Officer Higginbotham. Prospective juror, June Ames, responded that she worked for the municipal court and knew who Higginbotham was but did not know him personally. No further questions were directed to Ames at that time. Later, during voir dire by the defendant's counsel, venireman Dorsey, a member of the highway patrol for 16 1/2 years, indicated that he would probably tend to believe the testimony of a law enforcement officer over somebody else if there was a discrepancy. Defense counsel Maples then asked:

MR. MAPLES: Anybody else who feels the same way as Mr. Dorsey? ... [No hands] Ms. Ames, you work down at the Joplin municipal court?

VENIREWOMAN AMES: Yes.

The defendant's counsel then elicited from Ames that her job brought her into daily contact with Joplin police officers and that she had developed a respect for police officers in general. The following then occurred.

MR. MAPLES: If the believability of a police officer became an issue in this case, do you think you would tend at all to believe the testimony of a police officer

Page 245

rather than somebody else if it came down to that?

VENIREWOMAN AMES: Probably would.

MR. MAPLES: And especially if it were a real issue?

VENIREWOMAN AMES: Yes.

MR. MAPLES: Or if there were an issue perhaps of procedure as to what should have been done or what was done, you would kind of tend to go with the police officer, other things being equal; is that right?

VENIREWOMAN AMES: Depending on the circumstances, yes.

MR. MAPLES: I'm not saying you wouldn't consider the circumstances, but you would lean toward the policeman; is that right?

VENIREWOMAN AMES: Probably.

MR. MAPLES: Okay, and, again, I don't suppose that's something that you just may not have thought about it in those terms before, but you really didn't just decide that this morning, did you?

VENIREWOMAN AMES: No, I didn't.

MR. MAPLES: Is that kind of a long-held opinion like Mr. Dorsey's?

VENIREWOMAN AMES: Yes.

No follow-up questions were asked of Ames by the state or by the trial court.

Later, when the defendant challenged prospective juror Ames "for cause," the trial court rejected the challenge, saying:

THE COURT: Well, I'm going to overrule your motion on June Ames, juror number 30. I've had a chance to observe this woman's credibility throughout your questioning, and the Court's observation of her credibility was that she could be quite fair in this case. And it would seem to me that upon your very leading questions, she reluctantly agreed with what you were saying. But this woman has been employed as a clerk in the municipal court for less than a year, and I think that for me to find that she would be prejudiced in this case for one side or the other would be stretching the matter considerably.

The defendant then used a preemptory challenge to remove Ames from the jury panel.

Four Joplin police officers, including officer Higginbotham, testified to their respective roles in maintaining a chain of custody for the rape kit. Higginbotham's role consisted of receiving the rape kit at the hospital from an attending physician or his nurse, marking it with his signature, and taking it to the police station where he deposited it in an evidence locker.

Ralph Willis, a serologist, was called to testify concerning his analysis of the rape kit. A defense objection to his testimony was overruled. The basis for the objection was that a proper chain of custody for the rape kit had not been established because of (a) the lack of testimony from the nurse who received the kit from the examining physician and then handed it to officer Higginbotham who was standing outside the emergency room door, and (b) the lack of testimony from an evidence officer who served between officer Nelson's retirement and the time when officer Holden assumed the position. Willis then testified that he analyzed the rape kit and identified the presence of sperm cells on a microscopic examination of the vaginal smears.

Regarding the instruction issue, the jury was given an instruction number 4, a faithful reproduction of MAI-CR3d 302.04, a pattern instruction that includes a definition of "proof beyond a reasonable doubt."

OVERRULING CHALLENGE FOR CAUSE

In Point I the defendant contends that the trial court committed reversible error in overruling his challenge for cause as to juror Ames. He argues that Ames expressed a bias for the credibility of police officers and when his for-cause challenge was denied, he was denied a full panel of qualified jurors from which to make his peremptory challenges.

The principles governing jury selection in this state are well established. Missouri law amply supports the right of an accused to a full panel of qualified jurors before he is required to make peremptory

Page 246

challenges. State v. Wacaser, 794 S.W.2d 190, 193 (Mo. banc 1990); State v. Hopkins, 687 S.W.2d 188, 190 (Mo. banc 1985); State v. Gary, 822 S.W.2d 448, 451 (Mo.App.1991). A venireman who expresses a bias in favor of the credibility of police officers in general, or of a police officer expected to testify for the state, is disqualified to serve as a juror. State v. Schnick, 819 S.W.2d 330, 333 (Mo. banc 1991); State v. Draper, 675 S.W.2d 863, 865 (Mo. banc 1984); State v. Williams, 643 S.W.2d 832, 834 (Mo.App.1982). Denial by a trial court of a legitimate request by an accused to excuse for cause a partial or prejudiced venireman constitutes error. Hopkins, 687 S.W.2d at 190. And, if a venireman is biased, it is error not to excuse him for cause even though the venireman does not actually serve. Schnick, 819 S.W.2d at 334; Gary, 822 S.W.2d at 451, 452.

Other applicable principles include the following. In reviewing a trial court's ruling on a for-cause challenge to a venireman, each case must be judged on its own facts. State v. Holland, 719 S.W.2d 453 (Mo. banc 1986). A trial court's determination of a venireman's qualifications necessarily involves a judgment based on observation of the venireman's demeanor. State v. Smith, 649 S.W.2d 417, 422 (Mo. banc 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). Because a judge is in a better position to make that determination than an appellate court is from the cold record, doubts as to the trial court's findings are resolved in its favor. Id.

However, the broad discretion accorded the trial court in its rulings is predicated in part upon the requirement that the trial judge carefully consider the responses of the prospective jurors on voir dire. State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981). Where a venireman gives equivocal answers which reveal uncertainty as to his ability to be impartial, the trial judge has a duty to further question the juror concerning his possible bias or prejudice. Id. Failure of the trial judge to make...

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4 practice notes
  • State v. Bogard, No. 17919
    • United States
    • Court of Appeal of Missouri (US)
    • August 4, 1992
    ...v. Griffin, 818 S.W.2d 278 (Mo.banc 1991). The defendant's point is governed by Griffin and Antwine, not by Cage. State v. Edmonson, 827 S.W.2d 243, 249 (Mo.App.1992); State v. Vanzant, 814 S.W.2d 705, 708 (Mo.App.1991). Accordingly, it is Judgment affirmed. PARRISH, C.J., and CROW, P.J., c......
  • State v. Zelinger, Nos. 18215
    • United States
    • Court of Appeal of Missouri (US)
    • April 7, 1994
    ...v. Griffin, 818 S.W.2d 278 (Mo. banc 1991). The defendant's point is governed by Griffin and Antwine, not by Cage. State v. Edmonson, 827 S.W.2d 243, 249 (Mo.App.1992); State v. Vanzant, 814 S.W.2d 705, 708 Id. at 89. The holding in Bogard is applicable to this case. Point IV is denied. No.......
  • State v. Morris, Nos. 17365
    • United States
    • Court of Appeal of Missouri (US)
    • December 8, 1992
    ...v. Griffin, 818 S.W.2d 278 (Mo. banc 1991). The defendant's point is governed by Griffin and Antwine, not by Cage. State v. Edmonson, 827 S.W.2d 243, 249 (Mo.App.1992); State v. Vanzant, 814 S.W.2d 705, 708 State v. Bogard, 836 S.W.2d 87, 89 (Mo.App.1992). Defendant's second point is denied......
  • State v. Jordan, No. 17809
    • United States
    • Court of Appeal of Missouri (US)
    • August 4, 1992
    ...v. Griffin, 818 S.W.2d 278 (Mo. banc 1991). The defendant's point is governed by Griffin and Antwine, not by Cage. State v. Edmonson, 827 S.W.2d 243, 249 (Mo.App.1992); State v. Vanzant, 814 S.W.2d 705, 708 (Mo.App.1991). Accordingly, it is denied. Judgment affirmed. PARRISH, C.J., and CROW......
4 cases
  • State v. Bogard, No. 17919
    • United States
    • Court of Appeal of Missouri (US)
    • August 4, 1992
    ...v. Griffin, 818 S.W.2d 278 (Mo.banc 1991). The defendant's point is governed by Griffin and Antwine, not by Cage. State v. Edmonson, 827 S.W.2d 243, 249 (Mo.App.1992); State v. Vanzant, 814 S.W.2d 705, 708 (Mo.App.1991). Accordingly, it is Judgment affirmed. PARRISH, C.J., and CROW, P.J., c......
  • State v. Zelinger, Nos. 18215
    • United States
    • Court of Appeal of Missouri (US)
    • April 7, 1994
    ...v. Griffin, 818 S.W.2d 278 (Mo. banc 1991). The defendant's point is governed by Griffin and Antwine, not by Cage. State v. Edmonson, 827 S.W.2d 243, 249 (Mo.App.1992); State v. Vanzant, 814 S.W.2d 705, 708 Id. at 89. The holding in Bogard is applicable to this case. Point IV is denied. No.......
  • State v. Morris, Nos. 17365
    • United States
    • Court of Appeal of Missouri (US)
    • December 8, 1992
    ...v. Griffin, 818 S.W.2d 278 (Mo. banc 1991). The defendant's point is governed by Griffin and Antwine, not by Cage. State v. Edmonson, 827 S.W.2d 243, 249 (Mo.App.1992); State v. Vanzant, 814 S.W.2d 705, 708 State v. Bogard, 836 S.W.2d 87, 89 (Mo.App.1992). Defendant's second point is denied......
  • State v. Jordan, No. 17809
    • United States
    • Court of Appeal of Missouri (US)
    • August 4, 1992
    ...v. Griffin, 818 S.W.2d 278 (Mo. banc 1991). The defendant's point is governed by Griffin and Antwine, not by Cage. State v. Edmonson, 827 S.W.2d 243, 249 (Mo.App.1992); State v. Vanzant, 814 S.W.2d 705, 708 (Mo.App.1991). Accordingly, it is denied. Judgment affirmed. PARRISH, C.J., and CROW......

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