State v. Hunter, 53038
| Decision Date | 28 June 1988 |
| Docket Number | No. 53038,53038 |
| Citation | 755 S.W.2d 634 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Michael HUNTER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Mary C. McWilliams, Asst. Public Defender, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen., Christopher M. Kehr, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Michael Hunter appeals from the judgment entered by the trial court after a jury found him guilty of second degree murder in violation of § 565.021 RSMo 1986, armed criminal action in violation of § 571.015 RSMo 1986, and unlawful use of a weapon (carrying a concealed weapon) in violation of § 571.030.1(1) RSMo 1986. Finding appellant to be a prior offender, the trial court sentenced him to imprisonment for concurrent terms of life, ten years and five years. We affirm.
Appellant does not challenge the sufficiency of the evidence, so we need only briefly recapitulate the facts. Appellant was married to Debra Moore but they were separated. In June 1986 Ms. Moore and her boyfriend Jimmy Price, the victim, had been living together for over a year. Victim and Ms. Moore had been having problems and on Thursday, June 5, 1986, they also separated. Appellant helped Mr. Price move out of Ms. Moore's apartment and drove him to the home of Mr. Price's parents that Thursday. Appellant then visited Ms. Moore for the next four days. On Friday he came by after he had purchased groceries for Ms. Moore and her three children. He visited again on Saturday and Sunday, June 7 and 8. During these visits, he talked about getting back together but Ms. Moore explained that was not possible.
On Sunday, Ms. Moore called Mr. Price and asked him to dinner to discuss a reconciliation. Appellant had also visited Ms. Moore's apartment Sunday but left shortly after dinner that evening. Mr. Price missed dinner, eventually arriving much later that night, around eleven p.m. Mr. Price and Ms. Moore talked and then went to bed.
At about 3:30 p.m. on Monday, June 9, appellant knocked at Ms. Moore's door but she told him she had company. Mr. Price was still there. Appellant left but returned a half hour later, and walked in the house uninvited. He found Mr. Price and Ms. Moore in the bedroom watching television.
Angry, appellant told Ms. Moore they had been separated long enough and he wanted to reunite with his family and her. Appellant paced back and forth and asked why Ms. Moore and Mr. Price were getting back together. Appellant and Ms. Moore, both arguing, went into the kitchen. Mr. Price crossed the hall from the bedroom and stood silently by the kitchen doorway, but did not enter. Appellant pulled out a gun hidden in his trousers and shot Mr. Price. Appellant continued yelling at Ms. Moore. Her fifteen-year old son, who had heard the gunshot, ran to the kitchen, and saw Mr. Price lying on the hallway floor and appellant pointing the gun at Ms. Moore's face. Ms. Moore's son told appellant to leave her alone. Appellant walked over to Mr. Price and again pointed the gun at him. Ms. Moore pushed the gun away from Mr. Price's direction and ran towards the front door. Her son ran upstairs.
Appellant left the scene. Mr. Price subsequently died from the single bullet wound to the head. Appellant turned himself into the police later that day and made an audio-taped confession admitting he had shot Mr. Price, but that he had done so in self-defense.
Appellant raises two points on appeal. He attacks the failure of the trial court to strike a certain juror for cause and to instruct on sudden passion or on voluntary manslaughter. We address each in turn.
Appellant's first point contends the trial court erred in denying his motion to strike for cause venireperson Barbara Bunning. He argues that she expressed an inability to consider the evidence fairly and impartially because of her involvement in a previous murder trial and certain emotional problems in her personal life following her husband's death a year earlier. Appellant concludes that the failure to excuse venireperson Bunning was reversible error because he was denied his right to a full panel of qualified jurors from which to exercise his peremptory challenges. Appellant eventually used one of his peremptory strikes to remove her from the jury panel. The state responds that Mrs. Bunning unequivocally indicated her ability and willingness to hear the evidence fairly and impartially and that her personal reasons presented no impediment to her ability. We agree.
We have reviewed the entire voir dire between Mrs. Bunning, the attorneys and the trial court. The qualifications of a prospective juror are not determined conclusively by a single response but are made on the basis of the entire examination. State v. Murray, 744 S.W.2d 762, 769 (Mo. banc 1988); State v. Smith, 649 S.W.2d 417, 425-26 (Mo. banc), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983).
The initial reason given by Mrs. Bunning for not wanting to sit as a juror was "personal" in that she expressed reservations about her ability to "keep [her] emotions out of it". She stated that she suffered emotional trauma after having sat as a juror on a previous murder trial four or five years earlier. Appellant sought to strike her for cause. The court overruled the motion, stating he believed she was trying to avoid jury duty. Appellant requested the trial court individually question Mrs. Bunning at the bench. When asked by the court whether she could listen to the evidence and give both sides a fair trial, venireperson Bunning answered as follows:
I don't know that my emotions would enter into it. At this time my husband died at roughly the same time that this all occurred. And when I heard that I kind of got a jolt. I have been attending school until about three weeks ago trying to find a job. I'm right in the middle of that at the time this came up, plus the fact I just got out of seeing a psychologist about three weeks ago for trying to deal with my husband's death. I remember almost too well the last trial that I was on. I had emotional problems at that time with the trial itself. My life itself is going very evenly. And it was just the fact of hearing evidence of a man being killed and other evidence that was given, and I remember too much of it. And I don't know that I can go through it again at this time without literally falling apart. And I don't feel that's fair to either one of them.
The judge explained that nobody served as a juror by choice; Mrs. Bunning responded she realized that. The judge replied that no one enjoys sitting as a juror and that, to a certain degree, the experience is "a traumatic event for every juror". After concluding that her trauma in dealing with the crime at trial was no different than anybody else's, he overruled the motion to strike for cause.
When initially questioned by the circuit attorney, venireperson Bunning never expressed any doubt that she could be fair and impartial. She affirmed her ability to hold the state to its burden of proof beyond a reasonable doubt. She tacitly agreed with appellant's questions that she would be bound only by the evidence at trial and not influenced by outside feelings or things other than the evidence; that she would follow the instructions setting out the law; and that she would pay full attention to the trial and not let her mind wander.
While trial court refusal to sustain a valid challenge for cause constitutes reversible error, it is well established that the trial court has wide discretion in determining the qualifications of a venireperson, and its decision will not be disturbed absent a clear abuse of discretion and real probability of injury to the complaining party. Smith, 649 S.W.2d at 422[4, 5]; see also State v. Bebermeyer, 743 S.W.2d 516, 519[1, 2] (Mo.App.1987). The appellate court must judge each case on its own particular facts. Bebermeyer, 743 S.W.2d at 519. A determination by the trial judge of the qualifications of a prospective juror necessarily involves a judgment based on observation of his demeanor and, considering that observation, an evaluation and interpretation of the answers in determining whether the venireperson would be fair and impartial if chosen as a juror. Smith, 649 S.W.2d at 422. The trial judge is better positioned to make that determination than we are from the cold record; therefore, doubts about the trial court's findings are...
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