State v. Gray

• Court: Missouri Court of Appeals
• Writing for the Court: SHANGLER
• Citation: State v. Gray, 731 S.W.2d 275 (Mo. App. 1987)
• Decision Date: 07 April 1987
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Gary L. GRAY, Appellant. 37180.

Page 275

731 S.W.2d 275

STATE of Missouri, Respondent, v. Gary L. GRAY, Appellant.

No. WD 37180.

Missouri Court of Appeals Western District.

April 7, 1987.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

June 2, 1987.

Application to Transfer Denied

July 14, 1987.

Robert G. Duncan, Peter M. Schloss, Kansas City, for appellant.

William L. Webster, Atty. Gen., Michael R. Whitworth, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and DIXON and LOWENSTEIN, JJ.

SHANGLER, Presiding Judge.

The defendants Gray and Ballard were convicted by a jury of first degree murder for the homicide of Roy Keck in the course of robbery. § 565.003 RSMo 1978. The defendants were sentenced to terms of life imprisonment. Gary appeals from the judgment of conviction.

The victim Keck, 92 years of age, was found in his house in St. Joseph, on the floor, nude and severely beaten. His daughter Bess Thomas had come for a periodic visit and found him there on Tuesday, September 13, 1983, at about 11:40 a.m. She saw no sign of life and went for help. She soon returned with Officer Boulting and Frank Dykes, a neighbor. They found the victim semi-conscious, and covered with bruises and dried blood. Keck was removed to a hospital where he died on September 24, 1983, eleven days later.

An inspection of the premises by Officer Boulting disclosed that a window screen appeared to have been forced inward. There was dried blood throughout the interior--on a door latch, the refrigerator and carpets. There was evidence of an apparent absence of fesces or urine on or about the victim. A police technician obtained items from the interior home, among them a shaving cream can. Two fingerprints on the can were identified as those of the defendant Gray.

The examination of the victim at the emergency room of the hospital disclosed a fracture of the cheek bone, puncture wounds of the chest, cuts and bruises over the back, a fractured right wrist and a contusion of the brain. He also suffered from subcutaneous emphysema, a condition which results from a pierced lung. There was medical testimony that these injuries were consistent with the conclusion that they were inflicted by a severe beating several days before. The testimony at the trial by Dr. Vyas, who performed the autopsy, was that the trauma to the brain suffered 12 to 14 days before impaired the respiratory function, caused pneumonia and eventual death.

On November 28, 1984, Gray and Ballard were charged with the murder of Keck in the commission of a robbery on about September 9, 1983. That was the outcome of an immunity agreement concluded by the prosecutor with one Jerry Smith wherein Smith agreed to give truthful testimony and to cooperate in the investigation of the Keck death in exchange for immunity from prosecution for any act relating to the death. Smith also obtained releases from civil liability from the members of the Keck family. Smith thereupon gave a statement to the police that on September 9, 1983, Smith agreed for $1000 to drive Gray and Ballard to the Keck house to rob him. Gray and Ballard got out of the vehicle--and Gray obtained a knife from the dashboard as he did. Smith drove around a few blocks, then parked two blocks away and waited. After fifteen minutes, Gray and Ballard came up the street, and Smith picked them up. It was then about 1 a.m. Gray had a billfold and money bag in hand. Ballard remarked: "I think we really did it this time." Gray commented to the effect that he didn't think "the old man would be that tough."

The date for the trial of the case was set, and the defendant Ballard brought a separate motion for change of venue. The ground argued was that certain newspaper articles and other pretrial publicity had been inflammatory and prejudiced the defense. The defendant Gray acknowledged the extensive media coverage of the case, and that although the coverage was biased, a fair trial in St. Joseph remained possible if the court would allow sufficient latitude on that issue during the voir dire of prospective jurors. The court expressed an inclination to make the accommodation if the publicity before trial warranted, but denied the Ballard motion because it was not shown the publicity up to that time impaired a fair trial.

On March 27, 1985, some five weeks after the hearing on the change of venue was conducted, the St. Joseph Gazette published an article which prompted a successive motion for change of venue--this time, by both defendants. This article displayed by the headline "Material Witness in Keck Murder Located," reported that a material witness had been located in Las Vegas who said that Ballard and Gray asked him to assist them in the robbery of an old man. It reported further that the witness had been apprehended and turned over to the St. Joseph police. The person, James Mollett [a cousin of Gary Gray] was expected to be a key witness in the Keck trial, the article said, because of a statement he had given the St. Joseph police on November 21, 1984. In that statement, the article continued, Mollett had told the police that he had refused the request of the defendants to drive an escape car for them so that they could rob an old man. That article also described a guilty look he had seen on Gray's face during a television news report about the Keck event.

In addition to the rendition of these details, the article reported also:

"Mollett's statement to police partially corroborates a statement made by another state witness at Ballard and Gray's preliminary hearing. At the hearing, Jerry Smith, 2013 Jamesport Road, testified that he had driven the two defendants to the neighborhood around Keck's home at 2529 S. 15th St. on Sept. 9 or 10, 1983.

"Smith said that the defendants had said they were going to rob an old man and that he should come back and pick them up later. He said they took a fish filleting knife from the dashboard of his pickup truck with them when they got out.

"When he returned later, he said Ballard and Gray got back in the truck with a billfold and a money bag, and that they did not return the knife."

A hearing was conducted on the motion for change of venue, and evidence was presented. Two attorneys with criminal defense practices gave opinion that as a result of the newspaper article the defendants could not receive a fair trial in the St. Joseph venue, nor could even an extensive voir dire "erase the infection from the mind of potential jurors" instilled by that publicity. The court tentatively denied the motion, but agreed to allow counsel on the voir dire to question each veniremember individually as to "their exposure to the news media." The court reserved final decision as to the change of venue until the veniremembers expressed their opinions in the voir dire process "in relation to exposure to the news media."

The venire was divided into three panels. The first was composed of 36 persons. Five among them were struck for cause on general voir dire for reasons other than exposure to pretrial publicity. The individual questions then began. Sixteen of the 31 who remained were struck for cause on pretrial publicity grounds. In addition, another was struck for an extraneous reason. Fourteen veniremembers remained. The trial judge was not satisfied with the course the inquiry of the individual veniremembers had taken as to the effect of the media coverage on their opinions and ability to serve as fair jurors. He described the process to counsel as "confusing and misleading to the panel members, that the panel members were confronted with the repetition of questions which challenged over and over again statements that they had made." He added the impression that "the whole process was intimidating" and not productive as the means "to obtain a fair and impartial panel of jurors." The court informed counsel that "in order to cure and eliminate that process" he intended to "take over the questioning of the jury panel in relation to the media question--media questions." The court provided counsel a copy of the questions he proposed to put to the veniremembers on that issue. The prosecution acceded to that procedure, but counsel for Ballard objected strongly, and contended that the court had thereby repudiated the announced commitment to allow the attorneys to perform that function. Counsel for Gray also objected and argued also that "it takes the questioning of counsel to bring out whatever preconceived notions they may have."

The court overruled these objections and the voir dire of the second and third panel of veniremembers on the issue of pretrial publicity was conducted by the judge. The procedure adopted by the judge was to ask a series of questions on pretrial publicity before the inquiry proceeded to the general voir dire. The interrogation by the court, and the qualification process, followed this paradigm:

COURT: Okay. Mr. Swing. Do you recall that I informed you yesterday that the case--that the jurors that are selected will hear is the case of State versus Ballard and Gray, which involves an alleged murder of a Mr. Roy Keck?

SWING: Yes, Sir.

COURT: All right. Have you seen anything on television about this case?

SWING: No.

COURT: I mean at any time; recently, or some time ago?

SWING: Vaguely. There has been much, at the start, remember exactly--I remember some things that I've heard on the radio.

COURT: Okay. So you have heard something on the radio then?

SWING: Yes.

COURT: And was that recently or some time ago or when did you hear it?

SWING: Oh, within the last week.

COURT: Within the last week? Okay. Have you read anything in the newspaper about this case?

SWING: A little bit.

COURT: And when was that; do you recall?

SWING: Yeah, I'm not--

COURT: Mr. Swing, do you believe that things are true just because they're reported by the news media?

SWING: No.

COURT: Mr. Swing, the State is required to prove beyond a reasonable doubt that the crime of murder...