State v. Garrison

• Decision Date: 27 January 2009
• Docket Number: No. SD 29050.,SD 29050.
• Citation: 276 S.W.3d 372
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael X. GARRISON, Defendant-Appellant.
• Court: Missouri Court of Appeals

276 S.W.3d 372

STATE of Missouri, Plaintiff-Respondent, v. Michael X. GARRISON, Defendant-Appellant.

No. SD 29050.

Missouri Court of Appeals, Southern District, Division Two.

January 27, 2009.

Rosalynn Koch, Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, and Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.

GARY W. LYNCH, Chief Judge.

Michael X. Garrison ("Defendant") was charged by amended information with committing violence against an employee of the Department of Corrections, pursuant to section 217.385, and assault in the third degree against another prison employee, pursuant to section 565.070.¹ Defendant was found guilty by a jury on both counts, sentenced to eight years' imprisonment on the charge for committing violence, to be served consecutive to other sentences Defendant is currently serving, and fined $1,000 on the charge for third-degree assault. Defendant appeals, claiming the trial court plainly erred in not striking two venirepersons for cause and in allowing the State to cross-examine a defense witness concerning the contents of a Department of Corrections' report. Finding no plain error, we affirm.

Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to support his convictions. The evidence, viewed in a light most favorable to the verdict, established that on May 26, 2006, while an inmate at the South Central Correction Center, Defendant assaulted two prison employees before he could be subdued and handcuffed. Both correctional officers suffered injuries, including abrasions, scratches and bruises. One of the officers, David Martin, testified that he was on duty at the main entrance of housing unit number 3 when he saw Defendant coming from the dining hall wearing a heavy coat on a day when the temperature was around ninety degrees. Martin observed a "very large bulge" in Defendant's right-hand pocket. When Martin questioned what Defendant had in his pocket, Defendant initially denied having anything. When Martin pressed him further, Defendant pulled out a bread wrapper. Martin had no idea at the time what was contained in the bread wrapper. As Defendant tried to push Martin aside to enter the housing unit, Martin closed the door to the unit, blocking Defendant's way inside. Defendant removed his coat and threw it aside. Martin was able to call for backup before Defendant charged at him, knocking him across his chest and into a wall. Defendant struck Martin about the head and face with his fists, causing him to fall to his knees. As other officers arrived, correctional officer Roy Higashi ordered Defendant to stop. However Defendant kept swinging and hit Higashi in the chest before Higashi and another officer were able to subdue him. It was later determined that the bread wrapper Defendant removed from his pocket contained sausage, cheese, and bread allegedly stolen from the prison kitchen.

On the first day of trial, Defendant informed the trial court that, for reasons unrelated to the points raised in this appeal, he did not wish to be present in the courtroom during his trial. After advising Defendant on his right to be present and extensively questioning him regarding his decision to absent himself, the trial court ordered Defendant held in jail during the trial and further advised Defendant that he would be brought into the courtroom at any time he wished to be present. The trial court also directed defense counsel to keep Defendant informed as the trial progressed. The trial then proceeded without the presence of Defendant, and he was found guilty and sentenced as previously noted.²

Additional facts will be supplied hereafter as necessary to address each of Defendant's points.

Standard of Review

Both of Defendant's points request review for plain error pursuant to Rule 30.20.³ Whether to grant Defendant's request for review for plain error is at the discretion of this court. State v. Stanley, 124 S.W.3d 70, 76-77 (Mo.App.2004). In making this determination, we employ a two-step analysis. Id. at 77. We must first determine, based on a consideration of the facts and circumstances of each case, "`whether, on the face of the claim, plain error has, in fact occurred.'" Id. (quoting State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001)). Plain error is evident, obvious and clear error. State v. Shaffer, 251 S.W.3d 356, 358 (Mo.App.2008). "If facially substantial grounds are found to exist, we then move to the second step of this analysis and determine whether manifest injustice or a miscarriage of justice has actually occurred." Stanley, 124 S.W.3d at 77. "Relief under this standard requires that a defendant go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights." State v. Walker, 972 S.W.2d 623, 625 (Mo.App.1998).

Discussion

Failure to Strike Venirepersons for Cause

Defendant's first point states:

The trial court plainly erred in overruling [Defendant's] motion to strike venire persons Goris and Oliver, because this ruling denied [Defendant] his right to due process of law and to a fair trial by an impartial jury, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution, and resulted in manifest injustice, in that the jurors' statements showed that they would infer [Defendant's] guilt from his absence at trial.

During Defendant's voir dire examination, counsel for Defendant addressed the venire panel extensively regarding the possibility of Defendant's absence at trial. Initially, counsel asked the panel, "[Defendant] isn't in the courtroom right now. Does anybody believe that [Defendant] has to be here for you to find him not guilty?" Receiving no response from the panel, counsel asked, "Does anybody believe that [Defendant] has to be here for you to listen to the evidence fairly and to make a fair decision?" When at least one panel member responded affirmatively, counsel proceeded to question individual panel members who indicated they had concerns about Defendant's potential absence from the trial.

After several members of the panel responded, counsel posed the following question to the remainder of those waiting to respond: "You will hear evidence today, but you may not see [Defendant] in the courtroom. If [Defendant] isn't in the courtroom, is that gonna make it harder for me to show his innocence?" Venireperson Turner responded, "Yes. ... I think he should be here, too, and — unless there's a reason he couldn't be here like medically. And I do think it would probably make me less likely to believe he's innocent." Defense counsel asked Turner, "If he's not here, you are less likely to believe his innocence?" Turner responded, "Correct." Counsel then called upon panel member Goris, and the following exchange occurred:

VENIREPERSON GORIS:. ... Also I would like to say the same. Basically I'd like to see his body language. I mean, I — if I just get a statement from him or we hear a statement, if I don't [] to see his body language, I — I might be less likely to believe it.

[COUNSEL]: So if [Defendant] isn't in the Court, you're less likely to believe his innocence or perhaps more likely to believe he's guilty?

VENIREPERSON GORIS: It would be more difficult for me to make that judgment, yes, it would.

[COUNSEL]: Okay. Thank you.

Anybody else in the second section? Yes —

VENIREPERSON OLIVER: I believe he should be here. But why — why isn't he going to be here? * * * *

[COUNSEL]: I can't disclose that at this time, ma'am. I'll —

VENIREPERSON OLIVER: But you would disclose it at the trial?

[COUNSEL]: I can't say that. I can't say. All I can tell you is [Defendant] isn't here now and he may not be here for his trial. If he isn't here for his trial, will that make you more likely to assume he's guilty?

VENIREPERSON OLIVER: I don't know. I — without — without hearing the evidence, I don't know.

[COUNSEL]: Okay. If [Defendant] isn't here, is that gonna make it harder for me to show you he's innocent?

VENIREPERSON OLIVER: Well, that's up to you. I don't know.

When voir dire was completed, defense counsel requested the trial court to strike venirepersons Goris and Oliver due to their responses on the issue of Defendant's absence at trial. The trial court denied both requests.

On appeal, Defendant argues that he "was denied his right to a trial by a fair and impartial jury when two jurors on his panel had told the court that they would hold it against the defense that [Defendant] did not appear at trial[,]" and "[t]he trial court plainly erred in allowing these jurors to serve." Citing to James v. State, 222 S.W.3d 302, 305 (Mo.App.2007), for the proposition that "[a] criminal defendant must be afforded a full panel of qualified jurors before he is required to use a peremptory challenge[,]" and that "[t]he denial of a full panel of qualified jurors is the denial of the right to a jury trial[,]" Defendant contends that he "was denied his Sixth Amendment right to a fair and impartial jury, resulting in a miscarriage of justice." Defendant concedes that this claim was not preserved for appellate review because it was not presented in Defendant's motion for new trial. See Rule 29.11(d). Thus, he requests that we review his claim for plain error pursuant to Rule 30.20.

In determining whether plain error has, in fact, occurred—the first step in a plain error analysis—we note that generally, "[a] trial court's ruling on a challenge for cause will be upheld on appeal unless it is clearly against the evidence and is a clear abuse of discretion." Joy v. Morrison, 254 S.W.3d 885, 888 (Mo. banc 2008). While a trial court's refusal to sustain a valid challenge for cause constitutes reversible error, it is within the trial court's wide discretion to determine the qualifications of a venireperson. State v. Smith, 655 S.W.2d 745, 747 (Mo.App...