State v. Jones, 48652
| Decision Date | 07 May 1985 |
| Docket Number | No. 48652,48652 |
| Citation | 692 S.W.2d 343 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Bryant JONES, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Debra Buie Arnold, Asst. Public Defender, St. Louis, for defendant-appellant.
John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant was convicted of burglary second degree, § 569.170 RSMo 1978. Since defendant was charged as a persistent offender under § 558.016 RSMo 1978 the court determined punishment. Defendant had previously been convicted on guilty pleas of two burglaries, a stealing and an assault, all felonies. The sentence was ten years.
Defendant claims error in the trial court's refusal to remove venire person Carroll for cause. Although she is the wife of a police officer, defendant does not rely on that fact. He relies only on the following inquiry and the trial court's failure to inquire. Defendant maintains that she expressed doubt and was not qualified as an impartial juror.
Having asked the jury panel if any one knew any police officers, the prosecutor then asked juror Carroll:
In other words, would you be any more or less inclined to believe a police officer because he was a police officer?
The state is going to call three or four witnesses. The police officers are Detective Franklin, Detective Charles Douglas and perhaps a police officer George Rattermann. Anyone think they know any one of those individuals?
Defendant's counsel did not question venire person Carroll nor did the court. Defense counsel told the court, The prosecutor opposed the motion on the ground that "she could judge their testimony as she would a--judge anyone else's." The court ruled as follows: The court later acknowledged that defense counsel had made his record on this issue and the issue was preserved in defendant's motion for new trial.
After the present case was tried our supreme court, in a divided opinion, reversed and remanded for new trial on a similar issue. State v. Draper, 675 S.W.2d 863 (Mo. banc 1984). Judge Blackmar dissented but noted, "I must, however, express my impatience at the practice of judges, especially those in urban areas, in overruling challenges for cause when the juror may have expressed tentative thoughts which give occasion for concern." 675 S.W.2d at 868. This court concurs with Judge Blackmar's sentiment. We find that defendant was denied the right to a full panel of qualified veniremen.
In this case the state's proof consisted of the testimony of two police officers. On October 19, 1983 the officers were assigned to the Vice Narcotics Division for the St. Louis Police Department. They were in civilian clothes and were conducting an early morning surveillance of a package liquor store. Detective Franklin was in an unmarked police car on the north side of Lillian immediately across the street from the liquor store. From that location he observed a man enter J & M Cleaners which was located west of the liquor store and to the left front of the police car. He saw an individual open a window screen and enter the cleaners through a window facing Lillian. He notified his partner, Detective Douglas, of the problem. As he approached the cleaners he saw sixteen pairs of jeans being thrown out the window. Detective Franklin placed the individual under arrest as he was climbing out the window. Detective Douglas saw the jeans coming out the window and observed the arrest. Both men noted that defendant had his hands covered with white socks. In addition to this evidence the state offered the testimony of the property manager to confirm that the building was locked and that defendant had no permission to enter. Police Officer George Rattermann was the state's only other witness. As an evidence technician he processed the scene i.e. took photographs and testified that he found no fingerprints.
The only evidence offered by defendant was the testimony of his friend, Jessie Pendleton. On the evening of October 18 and the early morning of October 19 defendant and others were visiting Mr. Pendleton at a house just west of the scene and in the neighborhood. Minutes after defendant left Mr. Pendleton became aware of a "lot of lights" flashing--police car lights. This testimony did not establish an alibi.
In State v. Draper, 675 S.W.2d 863 (Mo. banc 1984) the court reversed and remanded for new trial because a venire person expressed doubt about treating the testimony of police officers the same as other witnesses. In that case venireman Martin was a close personal friend of a police officer. She thought her relationship with the officer might cause her to be more likely to believe a police officer. The entire panel was asked whether there might be any reason that they not serve on the jury. Silence prevailed. The trial court made no inquiry. The supreme court noted that the trial court mistakenly remembered that Martin had indicated that she could be a fair and impartial juror. The court concluded that the defendant was prejudiced because the police officer's testimony "... indicated a consciousness of guilt of the robbery and contested the alibi of the defendant." 675 S.W.2d at 865-866.
The Draper opinion summarizes the law in this area.
A defendant in a criminal case is entitled to a panel of qualified jurors before he is required to make his peremptory challenges. State v. Lovell, 506 S.W.2d 441, 443 (Mo. banc 1974); State v. Land, 478 S.W.2d 290, 292 (Mo.1972). When a venireman expresses a partiality toward police officer testimony per se--as a generic class--the basis of credibility contrary to the interest of the complainant-litigant disqualifies service as a juror. State v. Williams, 643 S.W.2d 832, 834 (Mo.App.1982); State v. Owens, 620 S.W.2d 448, 450 (Mo.App.1981). The trial court is accorded wide discretion in ruling on challenges for cause, but also has a duty to evaluate closely, and at times independently examine, the qualifications of potential jurors. Lovell, supra at 444; State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981). Without such independent examination, a more searching review by the appellate court is justified. State v. Butler, 660 S.W.2d 225, 227 (Mo.App.1983); Williams, supra, at 834; Ealy, supra, at 493; State v. Holliman, 529 S.W.2d 932, 939 (Mo.App.1975). The trial court's determination, however, will be rejected only upon a clear showing of abuse of discretion. State v. Olinghouse, 605 S.W.2d 58, 69 (Mo. banc 1980).
No clear line can be drawn as to when a challenge for cause should or should not be sustained; each case must be judged on its particular facts. Smith, supra, at 422; State v. Cuckovich, 485 S.W.2d 16, 22-23 (Mo. banc 1972); State v. Harris, 425 S.W.2d 148, 155 (Mo.1968). Although errors in the exclusion of potential jurors should always be on the side of caution, Butler, supra, at 227; State v. Carter, 544 S.W.2d 334, 338 (Mo.App.1976); reversal is required only if the defendant has been prejudiced. Butler, supra, at 227; Harrell, supra, at 757. The defendant has been held not to be prejudiced where the police officer did not provide any elements of the State's case, Butler, supra, at 227; Harrell, supra, at 757; where the more important...
To continue reading
Request your trial
-
State v. Barks
...three times. Responses by Veniremen Blake and Forrester demonstrated the same lack of equivocation. Appellant refers us to State v. Jones, 692 S.W.2d 343 (Mo.App.1985) which reversed a trial court that had overruled the challenge to a police officer's wife who thought she knew one of the te......
-
State v. Carnes, 70069
...a defendant are the individuals the venireperson is biased towards, the venireperson should be eliminated for cause. State v. Jones, 692 S.W.2d 343, 346 (Mo.App.1985). This is especially true in a case where almost all of the state's evidence comes from police officers. Draper, 675 S.W.2d a......