State v. Fortner
| Decision Date | 05 September 2002 |
| Docket Number | No. 24294.,24294. |
| Citation | 84 S.W.3d 507 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. James Earl FORTNER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Nancy A. McKerrow, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, for respondent.
James Fortner (defendant) was convicted following a jury trial of statutory sodomy in the first degree. § 566.062.1 He appeals contending the trial court erred by failing to grant a challenge for cause to a juror and a motion to disqualify the trial judge. This court affirms.
Defendant does not challenge the sufficiency of the evidence. His claims of trial court error are directed solely to circumstances related to jury selection and the trial judge's decision not to grant the motion to disqualify. The recitation of facts is, therefore, limited to the circumstances related to those issues.
Defendant's first point on appeal asserts the trial court erred in denying defendant's motion to strike a member of the venire for cause because he "never unequivocally stated that he would not consider the fact that [defendant] did not testify as evidence of guilt." The venire-person about whom defendant complains in Point I was Joseph Robert Stevicks. Mr. Stevicks served as one of the jurors at defendant's trial.
The basis for defendant's allegation of error in Point I is questions asked to and answers given by Mr. Stevicks near the end of voir dire. The following colloquy occurred.
Q. [by defendant's trial attorney] ... Does anybody else have any other questions about any of the questions that I've asked you today?
(Response)
[Defendant's attorney]: Yes, sir.
[Defendant's attorney]: Um-hum.
JUROR STEVICKS: Under certain circumstances and stuff, but, you know, to me, I just — that's how I would do it. I'd take the stand and then tell my side of the story. That's just how I believe.
[Defendant's attorney]: Okay. Well, can you think of any reason why you wouldn't?
JUROR STEVICKS: Why I would not?
[Defendant's attorney]: Yeah. Can you think — I mean, I know you're not a lawyer, so I don't expect you to know the lawyer reasons.
JUROR STEVICKS: No. I don't know every stipulation why I wouldn't. Probably like something that deals with DNA or something. I don't know anything about that.
[Defendant's attorney] Maybe some kind of evidence would come in or something like that?
[Defendant's attorney] And that's a good question. There can be, and like the Judge said, it's not going to be a part of the trial for you to figure out why or why not he testifies or doesn't testify. You understand that.
JUROR STEVICKS: Yes.
[Defendant's attorney]: That's nothing that the State has to prove.
[Defendant's attorney]: That's your personal belief.
JUROR STEVICKS: Yes.
[Defendant's attorney]: Sure. I understand that. In this case, say you hear all the State's witnesses and they rest, the State rests, and they're done, and [defendant] doesn't testify. Are you going to expect him to have testified before you can find him not guilty?
JUROR STEVICKS: No. No, I'm not going to speculate on that.
[Defendant's attorney]: You won't speculate.
JUROR STEVICKS: No. That's his right not to.
[Defendant's attorney]: You're just stating your own personal belief.
JUROR STEVICKS: Yes. I just had a question about that.
Mr. Stevicks was the last venireperson to be questioned. He was "No. 23" on the trial court's jury list.
At the conference following voir dire, defendant moved to strike "No. 23" for cause. Defendant's trial attorney asserted two reasons for seeking No. 23's removal for cause. He referred to an inquiry "at the bench" concerning a disclosure that the venireperson, as a "young teen," had a friend who had been a victim in a sexual related case. The attorney told the trial court:
He did state that it was a traumatic event in his life, after you asked him that question. That case ended in nothing more, I guess, than an ex parte, or an order of protection. Couple that with the question he asked about, If [sic] it was me, basically, I would expect to get up and tell my side of the story. I would say that with the combination of those, he's close enough to the line that he should be stricken for cause.
In ruling on defendant's motion to strike No. 23 for cause, the trial court stated:
Well, Number 23, in talking with him at the bench, he seemed unaffected. And by that I mean, often we see jurors that when they begin talking of their past experiences, display some emotion. He didn't. He seemed to want to make sure that we knew about that incident and his involvement as a witness to it. He expressed some dissatisfaction with what happened to the defendant in that case, but he said that he could disassociate that experience from his obligation as a juror and could be fair to both sides. With respect to his answers regarding the failure of the defendant to testify, I think that's brought on in part by your discussion of the need to maintain their common sense.[2] And he expressed his common sense. He said if it were him, and this — and he was not guilty, he can't understand why he would not testify. And in response to that he was asked, Did [sic] he understand that all defendants, everyone has a right not to testify? Yes. Would he understand that the State has the burden to proceed and prove his guilt, and the defendant does not have to prove anything? Yes. I think when you ask these people to bring their common sense with them, you spend time talking about common sense, you're inviting some discussion about what they would do if it happened to them. And that's all I think he expressed. So Number 23 is not stricken.
Defendant relies on State v. Stewart, 692 S.W.2d 295 (Mo. banc 1985), in support of Point I. He argues that Stewart is analogous to this case. In Stewart, a venireperson, Mrs. Thompson, was asked a series of questions relating to a defendant's choice not to testify in his criminal case.
At the outset of the questioning, Mrs. Thompson, in response to the question "Would you expect him to have to testify in this matter?", answered "I would think so." When asked if she felt "he should have to get up here again and deny it?", she replied, "I would just like to hear his side of the story." Asked what she would think if defendant did not testify, she said, "I couldn't say — I could not honestly say"; that as to whether she might think he was trying to hide something, "Possibly, yes"; that whether the "bottom line" if he did not testify was that she would have some real problems, she said "I think so", and finally, "being really fair", would she be more apt to think he was guilty if he did not testify, she answered, "Well, if you put it that way, yes."
Stewart points out Mrs. Thompson said flatly that if defendant did not testify she would be more apt to think he was guilty, and even when she was answering counsel for the state about her understanding that the state was required to establish guilt beyond a reasonable doubt and that she would judge the state's case on its own merits, she concluded by saying she still would like for the defendant to testify.
Id. at 299. Stewart concluded that Mrs. Thompson's answers to questions on voir dire demonstrated "that a defendant's failure to testify would, per se, be an indication to her that he was guilty of the offense charged and a factor which she would consider in arriving at a verdict." Id. Stewart held that the failure of the trial court to grant the challenge for cause was error. Stewart acknowledged, however, that "[i]n determining when a challenge for cause should be sustained, each case must be judged on its facts." Id. at 298.
This court does not find Mr. Stevicks' answers to questions asked during voir dire to be a manifestation that he would have required defendant to testify in this case in order to find defendant not guilty. Prior to the voir dire colloquy on which defendant relies as the basis for Point I, defendant's trial attorney elicited a statement from another venireperson that a defendant in a criminal case has a right to remain silent. The attorney then told the panel it was defendant's constitutional right not to testify. He asked the panel, "Does anybody here expect the...
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