State v. Griffith

• Decision Date: 29 June 2010
• Docket Number: No. SD 29428.,SD 29428.
• Parties: STATE of Missouri, Respondent, v. Robert J. GRIFFITH, Jr., Appellant.
• Court: Missouri Court of Appeals

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STATE of Missouri, Respondent,
v.
Robert J. GRIFFITH, Jr., Appellant.

No. SD 29428.

Missouri Court of Appeals, Southern District, Division Two.

May 10, 2010.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 1, 2010.

Application for Transfer Denied June 29, 2010.

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John M. Albright, Daniel T. Moore, Poplar Bluff, for Appellant.

Chris Koster, Atty. Gen., Terrence M. Messonnier, Asst. Atty. Gen., Jefferson City, for Respondent.

DANIEL E. SCOTT, Chief Judge.

The State charged Robert Griffith (Defendant), a school bus driver, with nine sex offenses involving four children. Five counts were dropped before trial. A jury acquitted Defendant of three others, but convicted him of molesting five-year-old P.S. (Child)¹ and recommended the minimum sentence of five years' imprisonment.

Defendant's eight appeal points allege juror misconduct, instructional error, and insufficiency of the evidence. For clarity and brevity, we reference facts adduced before, during, and after trial in the context of each point. We begin with Point II because Point I, in Defendant's words, "is a summary" of Points II through VII.

Point II

Defendant alleges that he was deprived of a fair and impartial jury in that Juror 12 did not disclose in voir dire that she had predetermined Defendant's guilt and suggested after jury selection that she meant to "fry his ass."

Background

Defendant raised this issue in his motion for new trial and adduced testimony at the hearing. Defense counsel called Juror 12 to the stand, referred her to the night of jury selection, and asked if she had commented to other jurors about Defendant's guilt or innocence. Juror 12 said no. Defense counsel asked Juror 12 if, after the jury went into deliberations, a female juror told the jury that Juror 12 "made a comment before the trial started." Juror 12 answered, "Seemed like it, but I can't remember." However, Juror 12 repeatedly thereafter testified that she made no improper statements. Defense counsel asked Juror 12 if her mind was not "made up somewhat, maybe not firmly convinced, but you had your mind made up" as to Defendant's guilt before trial. Juror 12 replied, "Once again, no, no I didn't."

Juror 11 was the next witness. She testified that after the jury was picked, she

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was walking out with Juror 12 and another juror when Juror 12 said, "We did it. We got on. We're going to fry his ass." Juror 11 testified that she and the other juror looked at Juror 12, who said, "Oh, I didn't mean to say that. I shouldn't have said that. I better go to work." Juror 11 also testified that when the jury retired to deliberate at the end of the case

Juror 12 sat down and said that he was guilty and put her hands behind her back and that she wasn't going to discuss it any more. And I stood up and said in front of all the other jurors then what she had mentioned, stated the day of the selection when we left.

Juror 11 said Juror 12 "just looked at me" and did not acknowledge having made any statement.

Juror 9 testified that she walked out with Jurors 11 and 12 on the night the jury was chosen. Juror 9 did not recall Juror 12's exact statement, but it was something to do with Defendant being guilty. Juror 9 also believed that Juror 12's statement was brought up when the jury began deliberations.

Juror 10 testified that he did not hear Juror 12 say anything of concern following jury selection, but after jury deliberations began, Juror 12 was confronted about allegedly having said Defendant was guilty before she heard the case.²

Analysis

The right to a fair and impartial jury means potential jurors must fully and truthfully answer voir dire questions; otherwise, a defendant cannot properly exercise challenges for cause and peremptory strikes. State v. Martin, 755 S.W.2d 337, 339 (Mo.App.1988).

In seeking a new trial based on juror nondisclosure, a defendant first must demonstrate to the trial court that the nondisclosure actually occurred. State v. Miller, 250 S.W.3d 736, 743 (Mo.App.2008). When this is a factual question that involves conflicting testimony, we defer to the trial court's determination as it is better positioned to judge witness credibility. State v. Coleman, 460 S.W.2d 719, 724 (Mo. banc 1970); State v. Robbins, 455 S.W.2d 24, 27 (Mo.App.1970). Where the trial court denies a new trial motion without making specific findings, we consider all findings necessary to the result to be implicit in the trial court's decision. See Fielder v. Gittings, 311 S.W.3d 280, 290 (Mo.App.2010)(juror nondisclosure); Banks v. Village Enterprises, Inc., 32 S.W.3d 780, 787 (Mo.App.2000)(same). We review for abuse of discretion. Miller, 250 S.W.3d at 743.

Juror 12 testified that she had not prejudged Defendant's guilt before trial, and she repeatedly denied making any such comment following jury selection. Defendant's abuse of discretion argument hinges on the testimony of other jurors whom the trial court was not obligated to believe. See State v. Stillings, 882 S.W.2d 696, 700 (Mo.App.1994). Point II disregards our standard of review and the trial court's superior position in judging witness credibility. Point denied.

Point III

Defendant contends that the trial court plainly erred when, after reading that part of MAI-CR3d 300.02 that asks if anyone could not follow the reasonable doubt instruction, the court voir dired only two of

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an unknown number of persons who raised their hands, then paraphrased the instruction

Background

During voir dire, the trial court read MAI-CR3d 300.02 up through the following portion:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. The law does not require proof that overcomes every possible doubt. If, after your consideration of all the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you will find him guilty. If you are not so convinced, you must give him the benefit of the doubt and find him not guilty.

Are there any of you who, if selected as a juror, could not, for any reason, follow that instruction? If so, would you please raise your hand?

At least two venirepersons raised their hands. One indicated that he had physical problems that would make it hard for him to follow the evidence; he was excused without objection. Another started to say that she had a problem with this type of case because her granddaughter had dealt with a similar issue. The court politely stopped her and said they would take that up privately after the first recess. Then, not reading from MAI-CR3d 300.02, the court asked the venire:

My question specifically at this point, having given you the instruction about the presumption of innocence in our judicial system, is there any of you would sic could not, for any reason, keep your mind open and presume that the defendant is innocent until the state proves to you beyond a reasonable doubt that he is guilty? Anyone who could not follow that instruction?

A third venireperson expressed a need to speak privately, which the court noted, then asked, "Anybody else?" When no one responded, the court continued reading from MAI-CR3d 300.02, which states:

It is your duty to follow the law as the Court gives it to you in the instructions even though you may disagree with it. Are there any of you who would not be willing to follow all instructions which the Court will give to the jury? If so, would you please raise your hand?

Introduce the attorneys and ask such additional questions as the Court deems appropriate.

Defendant claims the trial court plainly erred in asking its own question whether anyone could not presume Defendant innocent until the State proved beyond a reasonable doubt that he was guilty, which Defendant characterizes as improper "paraphrasing" of or "deviation" from MAI-CR3d 300.02. Defendant argues that the court instead should have questioned all venirepersons who raised their hands.

Analysis

We do not see the court's question as an MAI deviation. During any reading of MAI-CR3d 300.02, the panel is sworn, instructed on basic legal principles including the State's burden of proof, then twice asked if it can follow the burden of proof instruction. Venirepersons are asked to raise their hands if they cannot follow that instruction, but MAI-CR3d 300.02 and its Notes on Use do not say what to do if that happens, so the court must use its discretion when hands are raised.

The nature and extent of voir dire questioning is within the trial court's wide discretion; we will reverse only if discretion is abused. State v. Nicklasson, 967 S.W.2d 596, 608 (Mo. banc 1998). Defendant concedes that his claim was not preserved at trial and requests us to review

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it for plain error, the two-step test for which is "(1) did the trial court commit evident, obvious, and clear error affecting the defendant's substantial rights; and (2) if so, did such plain error actually result in manifest injustice or a miscarriage of justice?" State v. Smith, 293 S.W.3d 149, 151 (Mo.App.2009). A defendant seeking plain error review must show more than mere prejudice. He must show that the error resulted in manifest injustice or a miscarriage of justice—i.e., but for the error, the outcome would have been different. Id. Under these standards, Defendant has not made a case for relief.

As shown above, MAI-CR3d 300.02 concludes by directing venirepersons to raise their hands if they would not be willing to follow the court's instructions (this is the second time the panel is instructed to raise its hands), then instructs the court to "Introduce the attorneys and ask such additional questions as the Court deems appropriate." MAI-CR3d 300.02 thus does not preclude, but rather contemplates and expressly permits, additional appropriate questions by the court.

Moreover, the...