State v. Gash, KCD
| Decision Date | 02 October 1978 |
| Docket Number | No. KCD,KCD |
| Citation | 572 S.W.2d 240 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Billy Lee GASH, Defendant-Appellant. 29735. |
| Court | Missouri Court of Appeals |
David M. Doak, Asst. Public Defender, Columbia, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
Defendant appeals his conviction of assault with the intent to do great bodily harm without malice.
The sufficiency of the evidence to sustain the conviction is not questioned. The defendant and one Mittlestadt had roomed together for some period of time. There was a disagreement concerning payment of rent and conduct of the defendant, and the defendant moved out of the apartment. He returned to the apartment at a later date, an altercation ensued, and defendant left, returning at 4 o'clock in the morning, breaking open a barricaded door and striking Mittlestadt with a hammer.
The defendant challenges the denial of a motion for mistrial for an incident during voir dire examination of the jury and two other instances of a denial by the trial court of a motion for mistrial, one relating to an evidentiary matter and the other to the use of exhibits in the State's argument.
The jury voir dire incident occurred as follows: The prosecutor asked the venire if any of them knew the defendant. One of the female jurors indicated that the defendant looked familiar and said, "I have a question and I am Mrs. Neunuebel, has the defendant been to Boonville?" Immediately after this response was made, the prosecutor discontinued his questioning and moved to strike the juror. Without comment, the trial court excused her, and she left the courtroom. The defendant, after the court had excused the juror, moved for a mistrial. All of this transpired out of the hearing of the jury but within the courtroom. It appears from the colloquy of counsel and the court that the juror was employed at the state training center in Boonville and that the defendant had at one time been an inmate in the training center. From the circumstances, it is apparent that the juror had no opportunity to communicate to any other member of the jury any knowledge of the defendant by reason of her employment at the Boonville facility, nor does the record indicate that the jury was even aware that the particular juror who was excused was an employee of the training center.
The trial judge is vested with a broad discretion in controlling voir dire examination, and his rulings should not be disturbed unless they clearly and manifestly indicate an abuse of his discretion. State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974). In the instant case, the discretion to be exercised by the trial court was to evaluate the effect upon the other veniremen of the comment by Ms. Neunuebel. In State v. Murphy, 533 S.W.2d 716 (Mo.App.1976), a similar situation was presented. A venireman indicated that he had seen the defendant "around" and would rather not serve, indicating he could not give the defendant a fair and impartial trial. The defendant's motion for a mistrial was denied, and the defendant argued that the venireman's comments affected the other veniremen adversely. In that case, the court said:
State v. Murphy, supra at 718.
That comment is controlling in this case since there is nothing in this record to indicate that the trial court did not properly evaluate the situation, and...
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State v. Lucky
...to observe what effect, if any, the juror's allegedly prejudicial statement had on his or her fellow jurors"); State v. Gash, 572 S.W.2d 240, 241-42 (Mo.Ct.App.1978) (emphasizing that the trial judge is in best position to evaluate the effects of a juror's remarks); State v. Murphy, 533 S.W......
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State v. Williams, 42521
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State v. Ruff, 50859
...controlling voir dire examination and its ruling will not be disturbed unless there is a clear abuse of discretion. State v. Gash, 572 S.W.2d 240, 242 (Mo.App., W.D.1978). Affiliation with law enforcement officials alone is not enough reason to sustain a challenge for cause. State v. Edward......
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State v. Wilson
...were held not to suffice as grounds for the discharge of the entire panel: (1) "* * * has the defendant been to Bonnville?" State v. Gash, 572 S.W.2d 240, 242(2) (Mo.App.1978); (2) "* * * I was in jail a little over two months with a Frank Cooper, and I think it's the same one." State v. Co......