State v. Jackson

• Decision Date: 13 March 1967
• Docket Number: No. 2,No. 52156,52156,2
• Citation: 412 S.W.2d 428
• Parties: STATE of Missouri, Respondent, v. Malcolm JACKSON, Appellant
• Court: Missouri Supreme Court

Page 428

412 S.W.2d 428

STATE of Missouri, Respondent, v. Malcolm JACKSON, Appellant.

No. 52156.

Supreme Court of Missouri, Division No. 2.

March 13, 1967.

Donald Gunn, Jr., James F. Gunn, St. Louis, for appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, William A. R. Dalton, Special Asst. Atty. Gen., Springfield, for respondent.

PRITCHARD, Commissioner.

Appellant was convicted of commission of the crime of murder in the first degree by

the verdict of a jury. Judgment was entered and a sentence of life imprisonment was imposed in accordance with the verdict. Appellant does not here question the sufficiency of the evidence to sustain his conviction. The facts relevant to the points upon which appellant seeks reversal of the judgment will be stated in connection therewith

Appellant's Point I is: 'The trial court abused its discretion when it overruled defendant's Motion for a New Trial since bias and prejudice may be inferred from a juror's concealment of information touching on his qualification as a juror.'

On voir dire examination of the jury panel counsel for the state asked: 'Have any of you for any reason ever had to take the witness stand? Possibly you might have been a victim of a crime, or maybe you have been called in by the State.' Venireman Spatny told that he was called in an industrial accident case before the Industrial Commission, but, because he was a witness, he had no feelings one way or the other (in this case); venireman Holmes had no particular feeling that would prevent her from sitting as a juror; venireman Moore had no unpleasantry attached to his experience of being arrested for hit and run, 'thrown out of court' a 'lot of years ago'; venireman Auberry stated he was able to give appellant a fair trial despite having been a witness for the state, and the victim, in a case of grand larceny; veniremen Gravatt and Brooks had testified in civil cases, had no feelings about it. Counsel for the state wound up his examination by asking: 'Now, let me ask this: is there anyone who for any reason at all thinks they could not sit and give the defendant and the State a fair and impartial trial in this particular case? (No response.)'

Counsel for appellant asked venireman Mrs. Dorothy Schlatman (who sat as a juror during the entire trial): 'Mrs. Schlatman, if they don't prove the charge as stated in the indictment, would you have any--would there be any reason why you couldn't bring back a verdict of acquittal? A. No.'

On presentation of evidence in appellant's motion for new trial, Mrs. Schlatman testified:

'Q Now, do you recall that day, December 6th, various questions being propounded to you by both counsel for the State of Missouri and myself?

A Yes, sir.

Q If I recall correctly, you were on the first panel. Is that correct. A. Yes.

Q Do you remember Mr. MacDonald asking this question of that particular panel: 'Possibly you may have been a victim of a crime or maybe you have been called in by the State.' Do you remember that question being propounded?

A I don't remember any specific question.

Q You don't remember that particular question?

A No, I don't.

Q That doesn't mean it wasn't asked?

A That is true.

Q Now, Mrs. Schlatman, I want you to recall back about nine or ten years ago. Were you the victim of a crime?

A Yes, sir.

Q When was that?

A It was about August or September 1955.

Q Mrs. Schlatman, let me warn you: this had better be absolutely borne out by the records of the police department and the circuit attorney's office.

A Yes, sir.

Q That was about 1955 or so?

A Yes, sir.

Q Can you tell the Court what happened at that time?

A Well, I was working at the K-Z Corporation. I was working on the midnight shift, so I had walked down to catch a bus sometime between eleven and twelve. I don't remember the time of the bus, but on my way to the bus--shall I tell you the streets?

Q Tell the whole thing.

A I was walking north on Twentieth Street and right at Wright Street there is a filling station and it faces North Florissant; the back of it is on Twentieth Street, because there is a wedge there. As I was even with the back of this filling station a man came around the corner of the filling station and started walking towards me. I didn't pay too much attention to him, because he was just coming up the block. When he got even with me--I was carrying an envelope-style purse and my lunch. He just reached over when he was even with me and grabbed my purse and ran. When he did, he ran south on Twentieth Street. I turned around and I started to holler, 'Stop thief!' When he got across the street, on Wright Street, there was a lady--she told me later that she had gotten off the Natural Bridge bus and he grabbed her purse. She had it hooked over her arm, so he pulled her to the sidewalk and the strap broke. Then he kept running. I ran over immediately to see if she was hurt, but she wasn't; she was skinned; her knee or something was skinned a little or her arm--I don't remember. She wasn't injured badly. She only lived a block from where this happened. We walked together to her house and called the police at the Fifth District. They came to her house. I don't remember her name; I think it was something like Jablonski; it was a Polich name.

So then the police came and questioned us both and took me to work. Later that night they came to work and picked me up, because two hours later I started getting real nervous. I didn't feel like I could finish the night.

Then about a month later the police came and took me down to the Fifth District Station and they had a fellow they put behind a screen or something and they asked me to view him to see if he was the man that had grabbed my purse. He didn't fit the description at all for me, so I told them no. That was all there was ever to it.

Q There was a police report made of that particular incident?

A Yes, sir.

MR. GUNN: I have no further questions at this time.

CROSS EXAMINATION

By Mr. MacDonald:

Q I believe you indicated that you don't recall being asked this question as a juror?

A I don't remember just that particular question. I know we were questioned a lot.

Q If you were questioned on this point--suppose you did recall now being questioned, just for supposition sake, did you recall anything at the time you were chosen as a juror regarding the set of facts or the incident which you just explained?

MR. GUNN: Just a minute. Your Honor, I am going to object to that. I want to make objection on the ground that anything that she says now is mere supposition regarding anything that happened during the course of the trial. The question now is whether or not this juror would have been chosen as a juror by both counsel if they had known of this incident. I am going to object to any question which would be based purely on supposition as to anything that she might have done or could have done or could not have done.

THE COURT: I will overrule it.

A No, sir. I don't remember; I don't recall.

Q In other words, at any time when you were asked the question or the question was propounded to your fellow jurors on the panel, did you ever at any time recall this incident which you just told Mr. Gunn about?

A No, sir.

'MR. MacDONALD: I have no further questions.'

Without a doubt, and as stated by appellant, it is the duty of a juror on voir dire examination to fully, fairly and truthfully answer all questions directed to him so his qualifications may be determined and so that challenges may be intelligently exercised. He cites Beggs v. Universal C.I.T. Corporation, Mo., 387 S.W.2d 499. That case was one for actual and punitive damages for defendant's alleged unlawful taking possession of and the towing of a truck (tractor) in a manner that caused it to be damaged. It states the general rule as set forth, supra, by appellant, but goes on to say, loc. cit. 387 S.W.2d 503, "(A) juror's intentional concealment of a material fact may require the granting of a new trial. Woodworth v. Kansas City Public Service Co., Mo., 274 S.W.2d 264. For bias and prejudice on the part of a juror may be inferred from his intentional concealment of such information. Girratono v. Kansas City Public Service Co., Mo., 272 S.W.2d 278. * * * In the final analysis, therefore, the question of what result should follow the failure of a juror to correctly answer a question touching his qualifications depends upon whether or not he was guilty of an intentional concealment. Primarily, the determination of that question must be left to the sound discretion of the trial court. Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795." (Italics here added.) The defendant in Beggs was a finance company, and the voir dire question was whether venireman Holder had trouble with a finance company, to which he answered 'No.' In truth, he had been adversely involved with five creditors who had judgments, two of them being finance companies. That fact, plus two other jurors failing to answer questions along the same line, caused this court to hold that there was wilful and intentional withholding of information which should have been disclosed on voir dire examination, that the defendant sustained prejudice in that it did not have a trial before a fair and impartial jury of twelve persons, and the trial court abused its discretion in overruling the motion for new trial. In this case, there is no evidence that Mrs. Schlatman intentionally withheld her previous experience (9 years earlier) with a purse snatcher and with the police in connection with that incident. On the post-trial hearing she testified that she remembered various questions being asked her, but not any specific question: 'I know we were questioned a lot.' She did not remember the purse snatching incident or ensuing incidents at the time she was questioned. In view of the nature of the state's voir dire question, 'Have any of you for any reason ever had to take the witness stand?' and the answers to questions by other...