State v. Gary, Nos. 58974
| Decision Date | 12 November 1991 |
| Docket Number | Nos. 58974,60045 |
| 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 |
| Court | Missouri Court of Appeals |
J. Gregory Mermelstein, Columbia, for defendant-appellant.
William L. Webster, Atty. Gen., Joan F. Edwards, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
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 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.
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?
(The proceedings returned to open court)
The denial of defendant's motion to strike juror Cuniff for cause led defendant to exercise one of his peremptory challenges to remove the juror. "Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges." Mu'Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 1908, 114 L.Ed.2d 493 (1991). Trial court while impaneling a jury has a serious duty to ascertain the question of actual bias and a broad discretion in its rulings on challenges. Dennis v. United States, 339 U.S. 162, 167, 70 S.Ct. 519, 521, 94 L.Ed. 734 (1950). Therefore, in exercising its discretion, trial court should be zealous to protect rights of an accused. Id.
Missouri law amply supports the right of the accused to be entitled to a full panel of qualified jurors before the exercise of his peremptory challenges. State v. Hopkins, 687 S.W.2d 188, 190 (Mo. banc 1985); State v. Carter, 544 S.W.2d 334, 337 (Mo.App.1976); State v. Lovell, 506 S.W.2d 441, 443 (Mo. banc 1974). Despite the prospective juror's ambivalent responses which indicated a strong possibility of prejudice, the trial judge did not conduct any further examination of the juror. On review, the standard applied by the appellate courts where the evidence indicates an absence of independent evaluation by the trial judge "is a more searching consideration ... of the appropriateness of excluding the individual juror". State v. Holliman, 529 S.W.2d 932, 939 (Mo.App.1975), State v. Williams, 643 S.W.2d 832, 834 (Mo.App.1982).
Although a venireperson's acquaintance or relationship to several police officers does not automatically make him...
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