State v. Jacks
| Decision Date | 31 March 1975 |
| Docket Number | No. KCD,KCD |
| Citation | 525 S.W.2d 431 |
| Parties | STATE of Missouri, Respondent, v. Melvin JACKS, Appellant. 27084. |
| Court | Missouri Court of Appeals |
Willard B. Bunch, Public Defender Sixteenth Judicial Circuit, Henri J. Watson, Asst. Public Defender, Kansas City, for appellant.
John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.
This appeal stems from defendant's conviction by a jury of robbery in the first degree and imposition of a three year sentence.
No claim as to the sufficiency of the evidence having been raised, and no insufficiency appearing, a brief statement of facts will suffice. At approximately 6:30 P.M. on the evening of January 5, 1973, an off-duty detective employed by the Kansas City Police Department was walking to his car parked in a lot behind a tavern. The area was well illuminated by an 'arc lamp' affixed to the top of a twenty foot pole. En route thereto the detective was approached by a man of the Negro race carrying a 'sawed-off rifle' who demanded his money. Someone standing behind the detective removed his wallet, while the man carrying the 'sawed-off rifle' seized his Smith and Wesson revolver. At defendant's trial the detective postively identified defendant as the man carrying the 'sawed-off rifle'.
Defendant impugns his conviction and sentence on the basis that the trial court erred (1) in denying him a hearing on his motion to declare a mistrial and discharge the petit jury finally selected to try the case and (2) in not permitting him to introduce testimony at the trial that he agreed to and did submit to a polygraph examination.
After the petit jury was selected, but prior to the time it was sworn to try the case, defendant filed a motion to discharge the petit jury. Defendant alleged therein that the state used its peremptory challenges to strike all Negroes on the venire panel, thus excluding all Negroes from the petit jury, and that the state 'systematically did so in case after case', thereby denying defendant equal protection of the law as guaranteed by the Fourteenth Amendment of the Constitution of the United States. The failure of the trial court to grant defendant an evidentiary hearing on his motion is the gravamen of his claim of error on appeal. Defendant relies on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), as the embarkation point for his position. The venire, from which the petit jury which tried defendant was selected, contained four members of the Negro race. It stands undisputed that the state expended four of its peremptory challenges to strike them and that no member of the Negro race sat on the petit jury which tried and convicted defendant. Their removal by the state in this particular case, standing alone, was not constitutionally impermissible. Swain v. Alabama, supra, (l.c. 837, 85 S.Ct.). However, a systematic exclusion by the state, via peremptory challenges, 'in case after case' of members of the Negro race who have been selected as qualified jurors and who have survived challenges for cause, with the result that no Negroes 'over a period of time' ever serve on petit juries, presents a Fourteenth Amendment question that takes on 'added significance'. Swain v. Alabama, supra (l.c. 837, 85 S.Ct). The burden rested upon defendant to prove that selection of the petit jury in the instant case fell within the foregoing admonition. Swain v. Alabama, supra (l.c. 839, 85 S.Ct.). This reaches the crux of defendant's contention since, for all practical purposes, he claims that if afforded a hearing he could have met the burden of proof imposed by Swain. The record surrounding defendant's motion does not bear out his claim.
Mr. J. D. Williamson, Assistant Prosecuting Attorney of Jackson County, tried the case for the state. Defendant was present in court at all times hereinafter mentioned. After the twelve petit jurors were selected, but prior to the time they were sworn, defendant, through counsel, filed his motion to discharge the jury and requested a hearing thereon. The trial court responded as follows to defense counsel's request for a hearing: '(W)hen you say a 'hearing', I assume the only person you could hear from would be Mr. Williamson.' Defense counsel replied he had no desire to question Mr. Williamson as to reasons for striking any particular jurors from the panel, but, instead, would limit his questioning of Mr. Williamson to whether or not he had, in fact, employed part of the state's peremptory challenges to strike all members of the Negro race from the panel in question and whether or not he had done likewise in 'case after case' respecting other criminal cases he had tried. Defense counsel then concluded by advising the court 'that would be the limit of my questioning'. At this juncture, Mr. Williamson stated on the record that in trying criminal cases for the state he had never systematically employed peremptory challenges to strike Negroes or any other classification of individuals, and that 'many times' he 'had Negroes on juries in criminal cases.' Immediately thereafter defense counsel stated 'Well, Your Honor, obviously Mr. Williamson is an Officer of the Court and I don't doubt what he just said.' The trial judge also made the following statement which appears of record: 'I've had a number of jurors, black jurors, serving in cases where there was a black defendant.' Defense counsel further stated on the record that his allegation was that the state 'through Mr. Williamson, has engaged in the practice of systematically excluding members of the Black race from sitting as jurors in criminal cases merely because of the race.' With the record in the foregoing posture, the trial court overruled defendant's motion to discharge the jury without an evidentiary hearing.
It is explicit throughout the record, as evidenced above, that defendant intended to rely solely on questions directed to and answers elicited from Mr. Williamson to meet the burden of proof imposed upon him by Swain. The above statements made on the record by Mr. Williamson, if given under oath in response to questions by defense counsel, would have failed to bring the selection of the petit jury which tried and convicted defendant within the...
To continue reading
Request your trial
-
State v. Biddle
...S.W.2d 806, 811 (Mo.1962); State v. Cole, Mo., 188 S.W.2d 43, 51, motion den. 354 Mo. 181, 189 S.W.2d 541 (1945); and State v. Jacks, 525 S.W.2d 431, 435 (Mo.App.1975). However, the written stipulation entered into between the parties gave the polygraph examination administered to defendant......
-
State v. Ghan
...for their reliability. State v. Weindorf, 361 S.W.2d 806 (Mo.1962); State v. Cole, 354 Mo. 181, 188 S.W.2d 43 (1945); State v. Jacks, 525 S.W.2d 431 (Mo.App.1975). While it may not be as specific as the one in State v. Fields, supra, defendant after consultations with and warnings by his re......
-
State v. Faught
...the rejection of the results of lie detector examinations is that they lack scientific support for their reliability. State v. Jacks, 525 S.W.2d 431, 435(6) (Mo.App.1975). In State v. Bibee, 496 S.W.2d 305 (Mo.App.1973) this court held that the trial court did not err in rejecting evidence ......
-
State v. Shives
...State v. Weindorf, 361 S.W.2d 806, 811 (Mo.1962); State v. Cole, 354 Mo. 181, 188 S.W.2d 43, 51 (1945); and State v. Jacks, 525 S.W.2d 431, 435 (Mo.App.1975). Defendant principally relies upon State v. Fields, 434 S.W.2d 507 (Mo.1968). Much of the confusion resulting from State v. Fields, s......