State v. Hatcher, WD
| Decision Date | 12 May 1992 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Danny HATCHER, Appellant. Danny HATCHER, Appellant, v. STATE of Missouri, Respondent. 43619. |
| Court | Missouri Court of Appeals |
J. Gregory Mermelstein, Columbia, for appellant.
William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.
Before BRECKENRIDGE, P.J., LOWENSTEIN, C.J., and HANNA, J.
Danny Hatcher appeals from his conviction for possession of cocaine, § 195.020, RSMo 1986 1 (repealed) and from the denial of his Rule 29.15 motion for post-conviction relief. In his direct appeal, Mr. Hatcher alleges four points of error, claiming that the trial court erred in: (1) overruling his motion for a new trial because Venireperson Schnelle failed to disclose that she was related by marriage to a witness for the state; (2) failing to sua sponte declare a mistrial based upon improper personalization in closing argument by the prosecutor; (3) failing to sua sponte declare a mistrial because the prosecutor, in closing argument, misstated the burden of proof; and (4) failing to independently examine Venireperson Swearengen, an acquaintance of defense witness, Penny Bennett. In his appeal from the denial of his Rule 29.15 motion, Mr. Hatcher presents three points, claiming that the motion court clearly erred in its denial of the motion because he was denied effective assistance of counsel in that: (1) defense counsel failed to elicit the relationship of Venireperson Schnelle with a witness; (2) defense counsel failed to object to the state's closing argument; and (3) defense counsel failed to object to the presentence investigation as it was prepared by the niece of the state's witness, Bill Hayes. The judgment of the trial court is affirmed. The judgment of the motion court is affirmed.
On June 18, 1989, Corporal David Thomas, a highway patrolman, observed a vehicle driven by the appellant, Danny Hatcher, run a stop sign. Corporal Thomas stopped Mr. Hatcher and parked his patrol car behind Mr. Hatcher's car. He asked Mr. Hatcher for a driver's license and proof of insurance. Mr. Hatcher claimed that Corporal Thomas was drunk. Wanting a witness to the proceedings, Corporal Thomas radioed Morris May, the chief of police of Milan, Missouri. Chief May responded to the call and Corporal Thomas proceeded to arrest Mr. Hatcher. As Mr. Hatcher approached the passenger side of the patrol car, Corporal Thomas saw him make a throwing motion behind him. Investigating, Corporal Thomas found a pill bottle containing a plastic bag and two packets, later found to contain .8 grams of cocaine. A fingerprint on one of the packets containing the cocaine matched Mr. Hatcher's prints.
Mr. Hatcher testified at trial that Corporal Thomas was drunk and abusive and that the pill bottle containing the cocaine was a plant. Penny Bennett, Mr. Hatcher's girlfriend, testified that when she went to the sheriff's office to find out the details of Mr. Hatcher's arrest, Corporal Thomas was abusive to her and exhibited signs of intoxication. A rebuttal witness, Sheriff Bill Hayes of Sullivan County, was called by the state. He refuted Ms. Bennett's account of her encounter with Corporal Thomas.
The jury returned a verdict of guilty. After a presentence investigation, Mr. Hatcher was sentenced to a term of seven years in prison. Mr. Hatcher filed a motion for new trial, claiming that he was prejudiced and denied his right to a fair trial because one of the jurors, Carolyn Schnelle, was related by marriage to Sheriff Bill Hayes, the state's rebuttal witness. Juror Schnelle's son was married to Sheriff Hayes's daughter. After hearing testimony on the matter from Juror Schnelle, the trial court denied Mr. Hatcher's motion for a new trial.
On November 7, 1990, Mr. Hatcher filed a pro se 29.15 motion for post-conviction relief claiming ineffective assistance of counsel. An amended motion was filed on January 3, 1991. After an evidentiary hearing, the motion court denied Mr. Hatcher's motion. Mr. Hatcher appeals from his conviction and from the denial of his 29.15 motion.
In his first point on direct appeal, Mr. Hatcher claims that the trial court erred in overruling his motion for a new trial because he was denied his rights to due process, to a fair trial and to a fair and impartial jury in that Juror Schnelle failed to disclose her relationship with Sheriff Bill Hayes. Mr. Hatcher claims that it was error for the trial court to conclude that defense counsel's questioning was not broad enough to include Juror Schnelle's connection with Sheriff Hayes since other witnesses disclosed relationships far more tenuous. Furthermore, Mr. Hatcher contends that because Sheriff Hayes's credibility was at issue, Juror Schnelle's relationship with him would cause her to credit his testimony over that of Mr. Hatcher and his witnesses.
During voir dire the panel was asked whether there was "any member of the panel who is an employee or who has a family member who is an employee of a law enforcement agency." Venireperson Schnelle did not respond. The panel was never questioned whether they knew Sheriff Hayes; his name was not mentioned. During the hearing on Mr. Hatcher's motion for a new trial, Ms. Schnelle was questioned about her failure to respond. She stated that she did not feel that she was related to Sheriff Hayes and did not consider him to be a family member although her son was married to his daughter. She testified that she did not intentionally conceal the relationship, nor did she hear any questions that she felt required a positive response from her to identify that relationship.
The right of a defendant to a fair and impartial jury is one of the fundamental principles of the American legal system. State v. Coy, 550 S.W.2d 940, 942 (Mo.App.1977). In order to meaningfully exercise this right, a defendant interrogates prospective jury members in order to reach his own conclusions as to who should sit on that jury. Id. It is the duty of each prospective juror to answer the questions propounded to him fully, fairly and truthfully in order that his qualifications be assessed and that the challenges, peremptory or for cause, be utilized intelligently. Beggs v. Universal C.I.T. Credit Corp., 387 S.W.2d 499, 503 (Mo. banc 1965).
The grant of a new trial based upon a juror's failure to answer a question asked during voir dire or on a juror's concealment of a fact lies within the sound discretion of the trial court. State v. Potter, 711 S.W.2d 539, 541 (Mo.App.1986). "Every failure of a potential juror to respond to a question during voir dire does not entitle a defendant to a new trial." State v. Martin, 755 S.W.2d 337, 339 (Mo.App.1988). A new trial is merited only where (1) the basis for disqualification is investigated during voir dire, (2) complaining counsel does not have knowledge of the juror's deception, and (3) the juror's concealment of the truth is intentional. Id. See also State v. Shackley, 750 S.W.2d 99, 101 (Mo.App.1988). The determination of whether a juror intentionally or unintentionally did not disclose matters inquired about on voir dire is within the discretion of the trial court. Tobb v. Menorah Medical Center, 825 S.W.2d 638, 643 (WD Mo.App.1992); Moore v. Jackson, 812 S.W.2d 240, 243 (Mo.App.1991).
The facts of the instant case do not reveal an intentional concealment by Juror Schnelle of her connection to Sheriff Hayes. Sheriff Hayes did not fit in Juror Schnelle's personal definition of family member and the venire panel never had the term "family member" defined for them by counsel. Despite some of the relationships revealed by other members of the panel, the facts do not contradict the findings of the trial court on the record that: (1) the question was not broad enough to include Juror Schnelle's relationship with Sheriff Hayes; (2) Mr. Hatcher's attorney did not know of the relationship; and (3) Juror Schnelle had no intention of deceiving defense counsel by not answering the question. It should also be noted that the question asked by defense counsel was generic; Sheriff Hayes was not mentioned by name during voir dire. There is nothing in the record to establish that Juror Schnelle intentionally concealed information during voir dire and the trial court's decision to believe the juror provides the basis for its overruling Mr. Hatcher's motion for new trial. See State v. Moutray, 728 S.W.2d 256, 259 (Mo.App.1987).
Mr. Hatcher also contends in his Point I that Juror Schnelle's relationship to Sheriff Hayes was per se prejudicial, rendering her incapable of making a fair and impartial decision in the case. Mr. Hatcher directs attention to § 494.470.1, RSMo Supp.1989, which states:
No witness or person summoned as a witness in any cause, no person who has formed or expressed an opinion concerning the matter or any material fact in controversy in any case that may influence the judgment of such person, and no person who is kin to either party in a civil case or to the injured party, accused, or prosecuting or circuit attorney in a criminal case within the fourth degree of consanguinity or affinity shall be sworn as a juror in the same cause.
Mr. Hatcher's argument fails for the reasons: (1) Juror Schnelle and Sheriff Hayes do not fall within the "fourth degree of consanguinity or affinity"; and (2) Sheriff Hayes is not "the injured party, accused, or prosecuting or circuit attorney in a criminal case." In State v. Williams, 650 S.W.2d 642, 643 (Mo.App.1983), the court stated that "friendship with a witness is insufficient to disqualify a venireperson." At the hearing on Mr. Hatcher's motion for new trial, Juror Schnelle testified that hearing Sheriff Hayes's testimony did not in any way change her decision in the case; she would have...
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