State v. Jones

• Decision Date: 30 June 2017
• Docket Number: ED 104588
• Parties: STATE of Missouri, Respondent, v. Robert JONES, Appellant.
• Court: Missouri Court of Appeals

530 S.W.3d 525

STATE of Missouri, Respondent,

v.Robert JONES, Appellant.

ED 104588

Missouri Court of Appeals, Eastern District, Division One.

Filed: June 30, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied August 22, 2017

Application for Transfer to Supreme Court Denied October 31, 2017

Lisa Stroup, for defendant.

Karen Kramer, for respondent.

Lisa P. Page, Judge

Robert Jones ("Defendant") appeals the trial court's judgment entered upon a jury verdict convicting him of three counts of first-degree statutory sodomy, in violation of Section 566.062,¹ three counts of incest, in violation of Section 568.020, three counts of first-degree child molestation, in violation of Section 566.067, and one count of sexual misconduct involving a child, in violation of Section 566.083. We affirm.

BACKGROUND

In the summer of 2014, Defendant's nine-year-old daughter ("Victim") revealed to her cousin that Defendant was sexually abusing her when Victim visited on the weekends. Eventually, Victim recounted the multiple episodes of sexual abuse to law enforcement and the Children's Advocacy Center.

In December 2014, Defendant was arrested, and, thereafter indicted in January 2015. After several continuances for various reasons—including witness investigations, delays in acquiring records, depositions of witnesses, and the withdrawal of defense counsel—Defendant was tried by a jury in May 2016. After the jury rendered its guilty verdict, the trial court sentenced Defendant to a total term of imprisonment of 15 years for all ten counts. This appeal follows.

Additional facts will be provided as needed during our analysis of the points presented by Defendant's appeal.

DISCUSSION

Defendant advances three points on appeal. First, Defendant contends the trial court plainly erred in allegedly closing the courtroom during voir dire, in that Defendant has a constitutional and statutory right to an open and public trial, thereby violating Defendant's rights to equal protection and due process, in violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 10, 14, and 18(a) of the Missouri Constitution.

Second, Defendant avers the trial court plainly erred in failing to sua sponte strike Venireperson Terence Nash ("Venireperson Nash") for cause, in that Defendant has a constitutional right to a fair and impartial jury, thereby violating Defendant's right to due process, in violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution.

Third, Defendant argues the trial court plainly erred in failing to sua sponte dismiss his indictment, in that the State prohibited Defendant from securing his constitutional right to a speedy trial, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 10, 18(a), and 21 of the Missouri Constitution.

Standard of Review

It is uncontroverted Defendant failed to preserve all three of his points for appellate review, and, therefore, requests this court review his allegations of error under plain error.

It is a well-established axiom of Missouri law that issues not raised or preserved in the trial court are waived and cannot, thereafter, be appealed. State v. Fassero, 256 S.W.3d 109, 117 (Mo. banc 2008) ; see also State v. Tisius, 362 S.W.3d 398, 405 (Mo. banc 2012) (properly preserving an issue for appeal requires a timely and specific objection during trial). Nevertheless, Rule 30.20 supplies our appellate courts a mechanism to review unpreserved claims of error in limited circumstances. See Rule 30.20. Specifically, Rule 30.20 authorizes an appellate court to consider "plain errors affecting substantial rights[.]" Rule 30.20; see also State v. Johnson, 207 S.W.3d 24, 34 (Mo. banc 2006) ("Unpreserved issues may only be reviewed for plain error.").

Generally, appellate review of unpreserved errors under Rule 30.20 follows "a two-prong standard." State v. Roper, 136 S.W.3d 891, 900 (Mo. App. W.D. 2004). First, the court determines whether there is, indeed, plain error, which is error that is "evident, obvious, and clear." Id. (citations omitted); State v. Edwards, 280 S.W.3d 184, 188 (Mo. App. E.D. 2009) (citations omitted) ("Plain error" is defined as error that facially establishes substantial grounds for believing "that manifest injustice or miscarriage of justice has resulted from the trial court error."). If so concluded, the court then shifts to the second prong of the analysis, "which considers whether a manifest injustice or miscarriage of justice has, indeed, occurred as a result of the error." Id. ; but see State v. Rogers, 51 S.W.3d 879, 880 (Mo. App. W.D. 2001) (referring to Rule 30.20 as a "conundrum").

Not all prejudicial error—that is, reversible error—can be deemed plain error. State v. Smith, 293 S.W.3d 149, 151 (Mo. App. S.D. 2009). Rather, "[a] defendant's Rule 30.20 burden is much greater—not merely to show prejudice, but manifest injustice or a miscarriage of justice—which in this context means outcome-determinative error." Id.

Appellate courts retain complete discretion on whether to review an unpreserved matter for possible plain error. State v. Marshall, 131 S.W.3d 375, 377 (Mo. App. E.D. 2004). In fact, the Supreme Court of Missouri has stated that "[p]lain error should be used sparingly and does not warrant review of every single trial error unpreserved for review." State v. Ringo, 30 S.W.3d 811, 821 (Mo. banc 2000) ; State v. Campbell, 122 S.W.3d 736, 739 (Mo. App. S.D. 2004) ("Rule 30.20 is no panacea").

Analysis

Point I—Public Trial

In his first point on appeal, Defendant claims the trial court plainly erred "closing" the courtroom during a segment of voir dire. Specifically, Defendant maintains the trial court unconstitutionally prohibited and prevented the public from observing the voir dire of Defendant's criminal trial.

In an apparent effort to enhance the trial court's auditory comprehension of the attorneys and venirepersons during voir dire, the trial court stated:

Everybody out for voir dire, please. Thank you. I do that, folks, not to be disrespectful to anybody, but I can't tell what the people behind the last row are saying when they're there. So if I let one side in[,] I got to let everybody in, that way everybody, you in the back don't get any disruptions.

At that time, and throughout the course of trial, no objection was lodged by any party, including Defendant. Now, on appeal, Defendant, for the first time, avers the trial court unconstitutionally "closed" voir dire to public access.

Constitutional Right to a Public Trial

In all criminal prosecutions, defendants have a constitutional right to a public trial. See U.S. CONST. AMEND . VI ; see also MO. CONST. ART. I, § 14 ("That the courts of justice shall be open to every person...."); Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) ("[T]here can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public."). The Supreme Court of the United States has deemed it "well settled" that "the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors." Presley v. Georgia, 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (reaffirming that the Sixth Amendment right to a public trial applies to the individual states via the Due Process Clause of the Fourteenth Amendment); see also Press-Enter. Co. v. Superior Court of Cal., Riverside County, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ("The process of juror selection is itself a matter of importance[.]").² "Whether a defendant's right to a public trial has been violated is a question of law subject to de novo review." State v. Salazar, 414 S.W.3d 606, 612 (Mo. App. S.D. 2013) (internal citations and quotation marks omitted).

The Sixth Amendment right to a public trial, however, is not absolute. Presley, 558 U.S. at 213, 130 S.Ct. 721. After "ensur[ing] the proper balance between competing interests[,] a trial court may close the courtroom under exigent circumstances. Salazar, 414 S.W.3d at 612 ; see also Waller, 467 U.S. at 45, 104 S.Ct. 2210 ("[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information."). To constitutionally justify the closure of any portion of a trial, the United State Supreme Court has enumerated four factors the trial court must contemplate, upon objection, prior to constraining public access:

1) an "overriding interest that is likely to be prejudiced" by a public proceeding must be stated;

2) "the closure must be no broader than necessary to protect that interest;"

3) "the trial court must consider reasonable alternatives to closing the proceeding;" and

4) "it must make findings adequate to support the closure."

Salazar, 414 S.W.3d at 612 (quoting in part Presley, 558 U.S. at 214, 130 S.Ct. 721 ).

Notwithstanding the autonomy afforded to trial courts to deny the public access to trial proceedings under limited circumstances, trial closures, including restrictions upon the public to observe voir dire, are to be "rare and only for cause shown that outweighs the value of openness." Press-Enter. Co., 464 U.S. at 509, 104 S.Ct. 819 (1984). Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials." Salazar, 414 S.W.3d at 612 (quoting Presley, 558 U.S. at 215, 130 S.Ct. 721 ). In fact, trial courts are required to, sua sponte, "consider [and reject] alternatives to closure even when they are not offered by the parties." Presley, 558 U.S. at 214, 130 S.Ct. 721.

Structural Error

Violations of a defendant's Sixth Amendment right to a public trial at the voir dire phase "is...