State v. Francis, KCD

• Decision Date: 29 November 1976
• Docket Number: No. KCD,KCD
• Citation: 544 S.W.2d 306
• Parties: STATE of Missouri, Respondent, v. John FRANCIS, Appellant. 28322, KCD 28324.
• Court: Missouri Court of Appeals

Page 306

544 S.W.2d 306

STATE of Missouri, Respondent, v. John FRANCIS, Appellant.

No. KCD 28322, KCD 28324.

Missouri Court of Appeals, Kansas City District.

Nov. 29, 1976.

Application to Transfer Denied March 14, 1977.

J. Arnot Hill, Hill & Gamm, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SWOFFORD, Judge.

The appellant (hereafter defendant) was charged in separate indictments with Murder First Degree and with Robbery First Degree, arising from the death by gunshot of Russell Mestdagh, a member of the Kansas City, Missouri police department, during the course of an armed robbery of Traxler's Pharmacy, 59th and Holmes, Kansas City, Missouri, on January 2, 1975.

The separate indictments were consolidated for trial by agreement of the defense and the state. A jury found the defendant guilty of Murder First Degree and assessed his penalty at life imprisonment. In a separate verdict, the jury found the defendant guilty of Robbery First Degree, but were unable to agree upon the punishment. After an unavailing motion for a new trial, the defendant was sentenced to life imprisonment on the murder charge, and a term of forty (40) years on the robbery charge, such sentences to run consecutively.

The defendant raises three assignments of error on this appeal. First, he asserts that the trial court erred in failing to provide the defendant with a panel of 47 prospective jurors, as required by Section 546.180 RSMo 1969. Second, he charges that the trial court erred in overruling his motion for acquittal at the close of the evidence on the charge of murder in the first degree because the evidence did not establish that defendant shot and killed Officer Mestdagh. Third, he asserts that the court erred in failing to dismiss the entire jury panel upon motion by defendant following an incident during voir dire examination of the panel where the trial court, in an attempt to answer a prospective juror's question as to whether or not life imprisonment amounted to 15 years, advised the juror that anyone confined in the Missouri Department of Corrections might be paroled whenever the Department of Corrections concluded that it should be done.

Section 546.180 RSMo 1969, provides that in all cities having a population of over one hundred thousand inhabitants, a defendant indicted for a criminal offense shall be entitled to peremptory challenges of jurors, as follows:

'2. (1) (a) If the offense charged in punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of twenty and no more;

* * *'

The statute further provides:

'(2) In all such trials, the state shall be entitled to the following number of peremptory challenges:

(a) If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of fifteen, and no more; * * *'

This statute, of course, was applicable to the jury selection proceedings in the trial of the defendant. However, the record shows that the original panel of prospective jurors called in the trial of defendant numbered 45, and six of these were excused for cause during voir dire examination, leaving a venire panel for the exercise of peremptory challenges of 39. No additional persons were called (nor were such requested) to bring the panel to the number of 47, so that the defendant and the state could exercise the full statutory peremptory challenges afforded by Section 546.180.

From the remaining panel of 39, a jury of twelve and one alternate was selected to try the defendant. The record does not reveal how the peremptory challenges were allocated between the defendant and the state, but it is obvious that the defendant could not have been afforded his statutory peremptory challenge to 20 of the prospective jurors and therein rests his complaint in Point I of this appeal.

However, the defendant's trial counsel (not his counsel on this appeal) made no objection to the size of the original venire panel of 45; made no request initially or after it was reduced by excuses for cause to 39, that it be augmented by calling additional persons as prospective jurors; made no objection to any reduction of the number of peremptory challenges afforded him; made no objection as to the final jury because of the selection process employed; did not at any time move to quash the venire panel; and, did not raise this point in his motion for a new trial. His point as to the method employed in the selection of the trial jury is raised for the first time on this appeal, and thus comes too late.

Since the first year of the present century, the rule governing the situation here presented has been clearly stated and often iterated. In State v. Bell, 166 Mo. 106, 65 S.W. 736, 737 (1901), it was said:

'* * * The matter of failing to provide a complete general panel before calling on a party defendant to make his challenges is a matter of exception, pure and simple; and if such party fail to except at the proper time, and to properly preserve such his (sic) exception, any redress for him is out of reach of judicial interposition * * *'

In State v. Nichols, 165 S.W.2d 674, 675(7) (Mo.1942), it was held that a defendant's right to a statutory venire was a right which could be waived and that a failure to object to an inadequate venire until after a jury was sworn constituted such a waiver.

The problem presented is one of error and exception 'pure and simple' and not of jurisdiction.

See also: State v. Donnell, 387 S.W.2d 508, 514(10, 11) (Mo.1965); State v. Cox, 392 S.W.2d 265--266(1) (Mo.1965); State v. Thomas, 433 S.W.2d 537, 540(5) (Mo.1968); State v. Turnbough, 498 S.W.2d 567, 570(1) (Mo.1973); and, State v. Thomas, 530 S.W.2d 265, 267 (Mo.App.1975).

The cases relied upon by defendant (State v. Kinne, 372 S.W.2d 62 (Mo.1963), and State v. Williams, 515 S.W.2d 544 (Mo.1974)) are distinguishable in that in each the defendant lodged proper and timely objections to the lack of a statutory venire and, upon request, the courts refused to bring the venire up to the statutory number.

Defendant's first point on appeal is ruled against him.

At the close of the state's evidence, the defendant filed a Motion for Directed Verdict of Acquittal, which generally attacked the state's case as supported by insufficient evidence on both the charge of first degree felony-murder and the charge of robbery first degree. The trial court overruled this motion. The defendant then testified in his own behalf and rested.

The defendant's second point on this appeal, as above noted, is that the court erred in overruling his motion 'for a judgment of acquittal at the close of all the evidence' (emphasis supplied) on the charge of murder in the first degree. The record of the trial before this court fails to reveal that such a motion was filed by the defendant or adversely ruled by the trial court. However, since the omission from the record may have been the result of a preparation mistake, and in view of the severity of the sentences and the fact that the state has joined issue in its brief on the assignment of error, it will be briefly considered.

Since this second point goes to the sufficiency of the evidence to support the murder charge, this court must review the evidence in its light most favorable to the state to support the conviction and all evidence and inferences to be drawn therefrom to the contrary must be disregarded. State v. Stapleton, 518 S.W.2d 292, 296(1) (Mo. banc 1975); State v. Jones, 524 S.W.2d 186, 187(1) (Mo.App.1975).

When so viewed, the evidence produced by the state presents facts from which the jury could reasonably find that the defendant and one Eugene Minor, and a third person, Kenneth Johnson, acting in concert and with a common purpose, robbed the proprietor of Traxler's Pharmacy by putting Traxler and some store customers in fear by means of at least one firearm on January 2, 1975, at about 3:00--3:30 p.m. The jury could further reasonably find from the evidence that the defendant and Minor had visited the location of the Traxler Pharmacy at 59th and Holmes, Kansas City, Jackson County, Missouri, on the forenoon of that day and had returned there just before the robbery in a blue van motor vehicle, apparently with Kenneth Johnson, which was parked beside the Traxler Pharmacy and in which van latent fingerprints of the defendant were later discovered; that Minor and the defendant entered the store and at gunpoint forced Traxler and a customer to lie on the floor; ¹ and, the two black men thereupon looted the cash register and collected other drugs and sundries which were placed in a pillowcase. During the course of thee activities, a young boy and a lady customer entered the store, and were also forced to lie on the floor. ²

During the course of the robbery, the victim testified that the defendant shouted a warning that the police had arrived, and he and his companion ran to the storeroom at the back of the pharmacy.

Thomas M. Gaugh, a member of the Kansas City, Missouri police department, and his partner, Russell Mestdagh, were patrolling in an unmarked police car and received an alert that a robbery was in progress at Traxler's. Upon arrival at the store, they entered the front door but immediately Gaugh went to the outside back of the premises to prevent an escape from the back door, and Mestdagh proceeded to the back storeroom. Gaugh at the outside rear door (which he found locked from the inside) said he heard loud noises and commotion from the back of the building followed by three shots. Traxler and his customers within the store also heard this, and thereupon, the two black men emerged from the back room and left the store by the front entrance.

The defendant left the store first and was immediately apprehended by another arriving police officer and placed in a...