State v. Harvey
| Decision Date | 28 April 1987 |
| Docket Number | No. 51181,51181 |
| Citation | 730 S.W.2d 271 |
| Parties | STATE of Missouri, Respondent, v. Walter HARVEY, Appellant. |
| Court | Missouri Court of Appeals |
David C. Hemingway, St. Louis, for appellant.
William L. Webster, Atty. Gen., Donna Richards-Crosswhite, Asst. Atty. Gen., Jefferson City, for respondent.
This case involves two related tragedies. The first is the kidnapping, sexual assault and brutal murder of two wholly innocent and fine young people, a married couple, on December 14, 1982. The second is the deliberate, deceptive and dastardly acts of unexcusable misconduct by two jurors, which conduct deserves the reproach of all right thinking citizens. Their acts possibly constitute a sabotage of the trial of defendant who stood charged with two counts of capital murder. Section 565.001 RSMo 1978. Their acts do constitute an affront to the criminal justice system on which every citizen must rely. The direct appeal is properly before this court because defendant appeals from consecutive sentences of life, minimum of 50 years on each charge.
Two jurors admitted in testimony during a hearing on defendant's motion for new trial that they were repeatedly admonished during trial by MAI-CR 2d 1.08 not to "view or listen to any newspaper, radio, or television report of the trial." On the evening of the second day of the trial they intentionally [and while fully cognizant of their wrongdoing] reconnected the combination radio-TV in the motel room furnished by the state while they were sequestered during the trial. Proper authorities had carefully disconnected the television set before the trial. Juror Theodore Aldrich and Juror James Robinson discussed their plan to reconnect the TV set. Juror Robinson stripped the wires which were inserted into the electrical system. On two occasions they heard a television newscast which offered information on the trial. Juror Aldrich recalled the first newscast on the evening of the second day of trial and that they watched the 10 o'clock newscast on local Channel 5. He also recalled that he saw defendant in the custody of bailiffs and that the case was being retried because of a mistrial. Aldrich testified that after the first news broadcast he had a discussion with Mr. Robinson noting the newscast referred to the trial they were sitting on. Juror Robinson commented that the report was of the trial in which they were participating.
Juror Robinson testified that they viewed the TV five or six times and on the first occasion the newscast reported a retrial; that he did not hear a description of mistrial; and he could not remember the words that he did hear. Robinson also testified they mostly listened to the radio. Both jurors admitted they knew their conduct was wrong during the commission of their acts and they did not report the acts to anyone during the trial. Both denied their access to media had any influence on their deliberations during the guilt or innocence phase of the trial. Both acknowledged that after the finding of guilt on both charges was returned to the court and before the hearing on the penalty phase commenced they listened to a second TV newscast reporting their verdict.
The extent of this tragedy involving juror misconduct is fully cognizable only by considering other background facts. First, the extent of the investigation of law enforcement authorities in both Missouri and Illinois involved a massive application of time and resources. Missouri authorities were involved because the original abduction occurred in St. Louis County, the murder of Gary Decker occurred in Missouri and the sexual assault and murder of Donna Decker occurred in Illinois. Missouri law enforcement authorities, Illinois law enforcement authorities, Federal prosecutors and the Federal Bureau of Investigation authorities were involved in the investigation, preservation of evidence, preparation for prosecution and trial of the defendant on three occasions and for the co-defendant on two occasions.
Second, the effort and expense of prosecuting authorities, federal and state, were utilized in four trials including the present trial. Defendant and a co-defendant were tried in April, 1983, in the Federal District Court for kidnapping, transportation of a stolen vehicle across state lines, interstate transportation of a female for immoral purposes, and unlawful use of a firearm. They were found guilty and each was sentenced to serve a combined term of 120 years. These convictions were affirmed in U.S. v. Harvey, 756 F.2d 636 (8th Cir.1985). Raphael Clark was tried and convicted for the capital murder of Gary Decker and sentenced to life imprisonment without probation or parole for at least 50 years. This conviction was affirmed by this court in State v. Clark, 711 S.W.2d 928 (Mo.App.1986). Defendant was tried and convicted for the murder of Gary Decker and sentenced to death. This conviction was reversed and remanded by the Supreme Court solely on the ground that defendant's lawyer in the first trial did not participate thereby depriving defendant of a constitutional right to a fair trial. State v. Harvey, 692 S.W.2d 290 (Mo. banc 1985). No mistrial has ever occurred involving the defendant or during the prosecution of any charges relating to the present facts.
Third, because of the background and without objection the trial court in the present case secured a jury from a venire panel in Kansas City, Missouri. The jurors were transported to St. Louis County where they performed their function. As a result, all of the jurors, including Robinson and Aldrich, were aware that the trial was unusual. This fact alone is relevant and accentuates the claim of misconduct. It is also relevant in considering the expenditure of time and cost, measured both in dollars and inconvenience to all of the many persons involved. These considerations only serve to accentuate and emphasize the extent or effect of the admitted misconduct.
Fourth, the misconduct occurred during the early stages of the trial and before the case was submitted to the jury. However, because the jurors did not report that they had listened to the television newscast relating to the trial and their conversation or comment about it or their listening to the radio during the trial, their misconduct affected, or may have affected, the course of the trial and their deliberations. This is significant because the legal rules involving juror misconduct relating to unauthorized communications are divisible into those cases involving communications before submission and after submission.
Fifth, the fact of misconduct was disclosed after trial when Juror Aldrich informed deputy sheriff Fred Sher that he and Robinson had listened to two TV newscasts about the trial. Sher testified that Aldrich reported learning of a mistrial from the first TV program. To his considerable credit Sher informed the court who in turned informed counsel of the facts.
Lastly, during the hearing on the motion for new trial and after Juror Aldrich identified the first newscast to be the 10 o'clock news on Channel 5, counsel for the defendant requested the court to continue the hearing and require the video tape to be produced for viewing. This motion was repeated on three occasions, but never ruled by the trial court. It is not known whether the TV tape exists. We also note that both jurors testified to listening to the radio, however, no questions were asked either by the state or by the defense about what the jurors may have heard or learned about the trial from the radio broadcasts.
Section 547.020 RSMo 1978 provides: "The court may grant a new trial for the following causes, or any of them: ... (2) when the jury has been separated without leave of the court, after retiring to deliberate upon their verdict, or has been guilty of any misconduct tending to prevent a fair and due consideration of the case; ...." (emphasis ours) Our Supreme Court in State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 805-806 (1953) reversed a conviction involving juror misconduct similar to the case before this court. Relying on this statute and others the court said,
We have said, since the enactment of the above statutes [546.230, 546.240, 547.020] especially the latter two, that if the separation or misconduct of the jury takes place during the progress of a felony trial, the verdict will be set aside, unless the state affirmatively shows that the jurors were not subject to improper influences; and that if the separation or misconduct occurs after the retirement of the jury for deliberation and prior to reaching a verdict, defendant is entitled to a new trial even though it be established that defendant was not actually prejudiced. (emphasis ours)
Id. at 806. In the Jones case after the evidence had been completed and during the jury instruction conference, a witness who gave material testimony against the defendant was seen conversing with a juror. Defendant's motion for mistrial based on juror misconduct was denied. The court, citing Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 53, 36 L.Ed. 917, 921 (1892) and other federal and state authorities, applied the principle, "private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear." Mattox, 146 U.S. at 150, 13 S.Ct. at 53. In Mattox, the state made no showing whatsoever of harmlessness to rebut the presumption of prejudice.
The case of State v. Edmondson, 461 S.W.2d 713 (Mo.1971) is also instructive for several reasons. In Edmondson, defendant sought a new trial based on juror misconduct on a matter first raised in the motion for new trial. The claim was that a juror had discussed the merits of the case prior to submission with a witness. The court held a...
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