State v. Kelly, Nos. 57441
| Decision Date | 03 December 1991 |
| Docket Number | 57559,Nos. 57441 |
| Citation | 823 S.W.2d 95 |
| Parties | STATE of Missouri, Respondent, v. Darryl KELLY, Appellant. |
| Court | Missouri Court of Appeals |
Beverly E. Temple, Henry B. Robertson, Deborah B. Wafer, St. Louis, for appellant.
William L. Webster, Atty. Gen., Joseph P. Murray, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, Darryl Kelly, appeals from his jury trial conviction in the Circuit Court of the City of St. Louis of one count of possession of cocaine, RSMo § 195.200.1(1) (1986), for which he was sentenced, as a prior offender, to seven years' imprisonment. We affirm.
In the early morning hours of November 24, 1988, St. Louis City Police Officers Kenneth Weger and John Gibson responded to a call concerning a domestic dispute in the 1300 block of St. Anges's Court in the City of St. Louis. As the officers approached the residence, they noticed that the front door of the residence was partially opened. The officers could plainly see appellant inside the home arguing with a woman.
According to Officer Weger, the woman motioned to the officers to enter the home. When the officers entered, the appellant walked outside. Officer Gibson followed appellant and detained him on the front porch of the residence. In response to Officer Gibson's request for identification, the appellant pulled some papers out of his blue jean pocket. As he did, a clear plastic bag fell to the ground. Inside the bag were seven smaller bags containing rock cocaine. Appellant was then placed under arrest.
On November 24, 1988, appellant was charged by complaint with possession of cocaine. An information was filed on February 3, 1989. On August 9, 1989, an amended information was filed alleging that appellant was a prior offender.
Trial was held on August 9 and 10, 1989. The jury returned its verdict late on the 10th. Appellant was sentenced on September 29, 1989, to seven years' imprisonment and this appeal followed.
Appellant's first claim on appeal is that the trial court erred in failing to sustain appellant's motion to strike a venireperson for cause because the venireperson indicated that she could not consider the possibility that a police officer might not tell the truth. We disagree.
During appellant's voir dire of the jury, appellant's trial counsel asked members of the venire if they could reject the testimony of some police officers:
Ms. Hicks, do you think that you could reject some police officers' testimony?
Appellant's counsel then went on to question the other members of the venire.
As an initial matter, we note that appellant never requested that the court excuse Venireperson Hicks for cause after the questioning of the venireperson was completed. If appellant had an objection to the retention of Venireperson Hicks, then it was appellant's duty to renew the challenge for cause and obtain a ruling from the trial court. By not doing so, appellant's trial counsel gives the impression that she was satisfied with Venireperson Hicks' answers and had no objection. Appellant's claim is therefore, not properly preserved for appeal. We will review the claim, however, for plain error.
To qualify as a juror, the venireperson must...
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