State v. Goree, KCD

• Decision Date: 31 January 1977
• Docket Number: No. KCD,KCD
• Citation: 546 S.W.2d 785
• Parties: STATE of Missouri, Respondent, v. Robert L. GOREE, Appellant. 28575.
• Court: Missouri Court of Appeals

Page 785

546 S.W.2d 785

STATE of Missouri, Respondent, v. Robert L. GOREE, Appellant.

No. KCD 28575.

Missouri Court of Appeals, Kansas City District.

Jan. 31, 1977.

Terry E. Brummer, Asst. Public Defender, 13th Judicial Circuit, Columbia, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Before SWOFFORD, P.J., PRITCHARD, C.J., and DIXON, J.

PRITCHARD, Chief Judge.

A jury rendered its verdict of appellant's guilt of burglary in the second degree and fixed his punishment at 4 years imprisonment. The court sentenced him to imprisonment in the Department of Corrections for the 4 years set by the jury.

No issue is presented as to the sufficiency of the evidence to sustain the conviction. The sole contention of error is that the court overruled appellant's challenge for cause of venireman Sterling Kelley, thus forcing him to utilize his peremptory challenges, and the court's refusal to sustain the challenge was an abuse of discretion.

The court first introduced counsel for the state: Mr. Earl Seitz, assistant prosecuting attorney, and the court stated that he worked under the supervision of the prosecuting attorney, Milt Harper, and in that same office were Mr. Eric Sower, Mr. John Clark and Mr. David Strauss. No venireman respondent that he was a client of or personally acquainted with state's counsel other than simply knowing that Mr. Harper was the prosecuting attorney and Mr. Seitz was the assistant. The state waived the voir dire examination. Appellant's counsel then inquired: '* * * I would further ask this question in regard to possible criminal cases: Is anyone presently a complaining witness in a criminal case, in other words, have you had contact with the Prosecuting Attorney's Office as a complaining witness, anyone? Mr. Kelley, I am aware of the situations you're in. Could you tell me approximately how long that case has been, how long have you had contact with the Prosecuting Attorney's Office? JUROR KELLEY: It began a little over a year ago. My most recent contact was probably a month ago. MR. BRUMMER: Can you tell me about how many conversations you might have had, who you have talked to in the Prosecutor's Office? JUROR KELLEY: Eric Sower is handling the case and I talked to him yesterday, briefly, about it, asking what progress was being made or if the continuance had been set or whatever. MR. BRUMMER: In the past, can you tell us about how many conversations you have had with members of their office? JUROR KELLEY: Oh, I was in probably twice discussing it with them.' Appellant's counsel made 10 challenges for cause, including: 'Juror No. 14, Sterling Kelley, he's a complaining witness, has had several conversations with the Prosecuting Attorney's Office over the period of more than a year.' This challenge was overruled by the court, it stating: 'No foundation shown to me, Mr. Brummer, that he's in any way prejudiced. You asked him if he had contact with the police and he indicated yes, he had. I don't think that, the fact that a witness has reported a crime, if you want to develop that, but I don't think you have shown any--* * * MR. BRUMMER: The grounds I allege on 14, I thought, I may be wrong, that he's complaining witness, not for his familiarity with the policemen but his contacts with the Prosecuting Attorney's Office. THE COURT: I understand. He's like many other people. But there has been nothing further developed whether this in any way causes him to have any preconceived idea, any prejudice. The simply reported that he's been discussing a particular case. I don't think that's grounds in itself. * * *'

It seems rather clear from the foregoing that Venireman Kelley had some kind of contact with the prosecuting attorney's office as a complaining witness. It was not developed, however, for the benefit of the trial court or for this court, the nature of the case in which Kelley was involved, or, more importantly, whether that experience would prevent him from entering the jury box with an open mind, without bias and prejudice toward appellant, or without having formed an opinion as to his guilt. The matter can only be reviewed in the posture presented: whether the fact, standing alone, that Kelley was a complaining witness in a criminal case is a basis for sustaining a challenge for cause.

Chapter 546, RSMo 1969, controls the statutory grounds for the challenge for cause of a juror. § 546.140 provides that 'No witness in any criminal case shall be sworn as a juror therein if challenged for that cause before he is sworn; and if any juror shall know anything relative to the matter in issue, he shall disclose the same in open court.' As noted, it was brought out that Venireman Kelley was a complaining witness in another case, so that matter was disclosed to the court. § 546.150 provides, 'It shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried, but if it appear that such opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.' Again, as noted, it was not developed that Kelley had formed an opinion as to the issue, or any fact to be tried, in this case, or that he had a bias or prejudice toward appellant by reason of being a complaining witness in some other criminal case. Absent some inquiry, and a concomitant showing, that Kelley had formed an opinion in this case, or that he had a bias or prejudice against appellant by reason of his being a complaining witness in another case, it cannot be said that the trial court erred in refusing to sustain the challenge.

There is no statutory authority in this state that a venireman is disqualified from being sworn to try a criminal case because he is a complaining witness in another case. It is, however, said at 50 C.J.S. Juries § 230, p. 978, 'Independent of ...