State v. Gary, Nos. 58974
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | PER CURIAM |
| Citation | 822 S.W.2d 448 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. David GARY, Defendant-Appellant. David GARY, Movant, v. STATE of Missouri, Respondent. Eastern District, Division Three |
| Docket Number | Nos. 58974,60045 |
| Decision Date | 12 November 1991 |
Page 448
v.
David GARY, Defendant-Appellant.
David GARY, Movant,
v.
STATE of Missouri, Respondent.
Motion for Rehearing and/or Transfer to Supreme Court
Denied Jan. 10, 1992.
Application to Transfer Denied Feb. 25, 1992.
Page 449
J. Gregory Mermelstein, Columbia, for defendant-appellant.
William L. Webster, Atty. Gen., Joan F. Edwards, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
PER CURIAM.
Defendant, David Gary, was charged with four counts of armed criminal action, § 571.015; 1 first degree murder, § 565.020.1; or, in the alternative, murder in the second degree, § 565.021.1(2); assault in the first degree, § 565.050; assault in the second degree, § 565.060; and resisting arrest, § 575.150. Defendant was also charged as a prior and persistent offender. At the close of the evidence, the jury found defendant guilty of first degree murder, two counts of armed criminal action, second degree assault, third degree assault, and not guilty of one count of armed criminal action. The state dismissed the charge of resisting arrest and a count of armed criminal action. The court sentenced defendant to consecutive terms of life without probation or parole for first degree murder, five years for each count of armed criminal action, ten years' imprisonment for second degree assault, and a fine of one dollar for third degree assault. This consolidated appeal follows. We reverse and remand.
On direct appeal defendant raises three contentions of trial court error. First, defendant claims error in failing to sustain his challenge for cause of a juror. Second, he argues that the prosecutor's approach towards defendant during closing argument saying "you tell me, then, you tell me," was a reference to defendant's failure to testify in violation of the fifth amendment and Missouri law and constitutes plain error. Third, he contends trial court error in admitting a photograph of defendant after the crime, because it was irrelevant and more prejudicial than probative.
Defendant's fourth ground on appeal concerns denial of post conviction relief. Specifically, defendant alleges error of the motion court in denying his Rule 29.15 motion without an evidentiary hearing.
After reviewing the transcript, we find error in the trial court's ruling on the prospective juror and, therefore, are constrained to reverse the convictions. The reasons which persuaded us to so find are discussed below. We will briefly address defendant's third contention pertaining to the relevancy of the photographs. Because the other assignments of error should not reoccur on retrial, our discussion of the same would be surplusage.
A brief statement of the facts indicate that the defendant, after an altercation with a hospital security person, was involved in a high-speed automobile chase. The pursuit was through the streets of the City of St. Louis and ended in a violent
Page 450
crash when the vehicle driven by the defendant collided with a police car killing a policeman. The defendant suffered only minor injuries.Defendant's first ground on appeal reads as follows:
The trial court abused its discretion in overruling appellant's challenge for cause of Venireman Cuniff because appellant was denied his right to a full panel of qualified jurors before making his peremptory strikes in that Mr. Cuniff was a retired city police officer from a police family who admitted having a prejudice in favor of the police generally and police testimony more particularly, and at best equivocated about his ability to be impartial. The court failed independently to examine him, and his later answers did not rehabilitate him but, on the contrary, reinforced the challenge for cause in a case where appellant was charged with murder and assault against police officers.
During the state's voir dire examination, the following exchange transpired between Prosecutor Moss and Venireman Cuniff.
VENIREMAN CUNIFF: I'm a ex-St. Louis police officer, and I'm from a police family.
* * * * * *
Q: Well, here. The Judge tells you you've got to listen to the facts fairly and impartially. You've got to decide if each witness is telling you the truth or not about what happened. Do you think you could listen to the witnesses and decide whether or not they were telling you the truth, whether or not they were police officers or civilians?
A: [Cuniff] I really think I would be a little prejudiced.
Q: Would you be so prejudiced that you would automatically believe them because they were police officers?
A: [Cuniff] I don't believe I'd go that strong, no.
Q: You would be more inclined to believe them than disbelieve them. Is that correct?
A: [Cuniff] Right.
Q: If you felt, under what they said and how they said it and how it measured with the rest of the facts in the case, if you felt they were lying, would you believe them anyway, or say you believed them?
A: [Cuniff] I don't believe so, no.
Q: At least that would be your conscious decision that you would not believe somebody you thought was lying, correct?
A: [Cuniff] Right.
Q: Now, the same thing is true of Mr. Gary here. If you, under what you heard in the courtroom and the instructions Judge Ryan would give you, if you believed that he wasn't guilty of a charge or charges, would you still find him guilty?
A: [Cuniff] If I believed, no.
Q: Well, that's what we are talking about here. We have a decision of twelve people ultimately, but each has to reach their belief under the facts and evidence and the law whether or not he's guilty, and you're not supposed to vote for guilty if you don't really believe he's guilty, and you're not supposed to vote for an acquittal if you don't really think he's not guilty.
MR. NACCARATO [DEFENSE COUNSEL] Judge, can we approach again at this time?
THE COURT: Would you care to ask the juror any questions right now.
MR. NACCARATO [DEFENSE COUNSEL] Yes, Your Honor if I may. Mr. Cuniff, my name is Mike Naccarato and I represent Mr. Gary. If you don't mind, I was going to ask you a couple questions. You indicated you were a ex-police officer?
A: [Cuniff] Yes, sir.
Q: How long have you been a police officer?
A: [Cuniff] Fifteen years.
Q: What district were you assigned to?
A:...
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State v. Clark, No. 80133
...directly to explore potentially biased views, which all concerned have a duty to investigate thoroughly. Id.; cf. State v. Gary, 822 S.W.2d 448, 451 (Mo.App. E.D.1991); Littell v. Bi-State Transit Dev. Agency, 423 S.W.2d 34, 38 Every fact need not be disclosed to prospective jurors. Only th......
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State v. Edmonson, No. 17685
...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 expe......
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State v. St. John, No. WD 64890 (Mo. App. 5/25/2006), No. WD 64890
...the trial court erred in denying the defendant's motion to strike this juror for cause. Id. at 243. St. John also cites State v. Gary, 822 S.W.2d 448, 449 (Mo.App. 1991), which also held that the trial court erred in denying the defendant's motion to strike a juror for cause and remanded fo......
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State v. Murphy, No. 74524
...party." Id. The evidence must clearly establish that the challenged venireperson was in fact prejudiced. State v. Gary, Page 641 822 S.W.2d 448, 452 (Mo.App. E.D.1991). If a question of partiality is raised, but not directly refuted by other responses and its application remains in the case......
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State v. Clark, No. 80133
...directly to explore potentially biased views, which all concerned have a duty to investigate thoroughly. Id.; cf. State v. Gary, 822 S.W.2d 448, 451 (Mo.App. E.D.1991); Littell v. Bi-State Transit Dev. Agency, 423 S.W.2d 34, 38 Every fact need not be disclosed to prospective jurors. Only th......
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State v. Edmonson, No. 17685
...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 expe......
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State v. St. John, No. WD 64890 (Mo. App. 5/25/2006), No. WD 64890
...the trial court erred in denying the defendant's motion to strike this juror for cause. Id. at 243. St. John also cites State v. Gary, 822 S.W.2d 448, 449 (Mo.App. 1991), which also held that the trial court erred in denying the defendant's motion to strike a juror for cause and remanded fo......
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State v. Murphy, No. 74524
...party." Id. The evidence must clearly establish that the challenged venireperson was in fact prejudiced. State v. Gary, Page 641 822 S.W.2d 448, 452 (Mo.App. E.D.1991). If a question of partiality is raised, but not directly refuted by other responses and its application remains in the case......