State v. Lawhorn

• Decision Date: 30 October 1978
• Docket Number: No. KCD,KCD
• Citation: 574 S.W.2d 455
• Parties: STATE of Missouri, Respondent, v. Robert LAWHORN, Appellant. 29977.
• Court: Missouri Court of Appeals

Page 455

574 S.W.2d 455

STATE of Missouri, Respondent, v. Robert LAWHORN, Appellant.

No. KCD 29977.

Missouri Court of Appeals, Kansas City District.

Oct. 30, 1978.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 27, 1978.

Denise V. Phillips, Asst. Public Defender, 13th Judicial Circuit, Columbia, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.

ROBERT R. WELBORN, Special Judge.

A jury in the Boone County Circuit Court found Robert Lawhorn guilty of stealing property with a value of at least $50.00. The court, acting under the second offender law, fixed the punishment at five years' imprisonment. Sentence was pronounced and judgment entered accordingly. Defendant appeals.

On June 29, 1977, Russell Long, a Boone County Deputy Sheriff, was on a stake out overlooking a number of automobiles parked near the entrance to Finger Lakes State Park. He watched appellant Lawhorn and a companion named Edwards get out of an automobile and walk alongside the parked vehicles, peering into them. The men stopped near a Ford station wagon and looked around. Edwards then went across the road and threw a large rock at a window of the Ford, breaking it. Long ran toward the Ford. Edwards and Lawhorn were out of his sight momentarily. When he saw them again, they were running down the road toward where their car was parked. Each was carrying a purse. Long pursued them and called for them to stop. He fired one warning shot. The men ran to their car and started it toward Long. Long fired two shots at the vehicle and was struck by it in the leg. The car stopped and Long ordered the passengers out. He found two purses on the front seat of the auto. Lawhorn had been seated on the passenger side.

Long found two women in a swimming area who had come to the park in the Ford. They went to the vehicle and described to Long the purses which they had left in the Ford and which were not then in the auto. Long showed them the purses taken from the car in which appellant had been a passenger and the women identified them as their purses which had been left in the Ford. They described the contents of the purses to Long and he returned them to the women.

At Lawhorn's trial on a charge of stealing property with a value of at least $50.00, Linda Wilkinson, the owner of one of the purses, identified the purse and its contents at the time of its taking. She testified that at the time the purse had contained her billfold, her comb, her ring and her contact lenses. She stated that she had paid $285 for the contact lenses less than a year ago, $65 for the ring, a little more than a year previously, and $15 for the purse. Julie Linn, the owner of the other purse, identified it at the trial, and testified that at the time it had been taken, it had contained glasses, a comb and a bankbook. She had paid $58 for the frame and lens of the glasses, $7 for the sunglasses, and $6 for the purse. She acknowledged that she told Officer Long that the value of the purse and its contents was about $15.00.

On this appeal, the first claim of error is based upon the trial court's overruling of appellant's challenge for cause of prospective juror Spry. On voir dire, Ms. Spry, in response to defense counsel's inquiry as to whether any members of the panel had had any "dealings" with Deputy Long, stated: "He grew up in my neighborhood." She stated that Long was not presently a neighbor and she did not think that her "dealings" with Long would influence her in passing on the credibility of the officer's testimony. That was the extent of the voir dire on the subject. The trial court overruled the challenge for cause of Ms. Spry, based upon her acquaintance with Long, stating that the matter had not been gone into at length and that Ms. Spry had stated she would not be prejudiced.

In this court, appellant argues that, in view of Mrs. Spry's statement that Long had grown up in her neighborhood, a "strong possibility for bias in the mind of the juror existed" and the challenge for cause should have been sustained.

In State v. Dodson, 551 S.W.2d 932 (Mo.App.1977), a venireman who had known for 30 years a police officer who was to testify for the state and who asserted that such acquaintanceship would not affect his judging the officer's credibility, was challenged for cause. In upholding the trial court's overruling of the challenge, the court stated (551 S.W.2d 934-935(1, 2) (3-5)):

"(1, 2) It is well-settled that a defendant is entitled to a full panel of qualified jurors before he must make peremptory challenges. State v. Lovell, 506 S.W.2d 441, 443(1) (Mo. banc 1974). Failure of a trial judge to excuse for cause a legitimately challenged venireman is reversible error. See, e. g., State v. Lovell, supra at 444(4); State v. Land, 478 S.W.2d 290, 292(3) (Mo.1972). The defendant's challenge to Mr. Walsh was not made on statutory grounds. See §§ 546.100-546.150 RSMo 1969. As for nonstatutory challenges, the rule is that the trial judge is vested with broad discretion, that his decision should not be overturned unless there is a clear abuse of discretion, and that any doubts are to be resolved in favor of the trial judge's decision. State v. McGrew, 534 S.W.2d 549, 551(3) (Mo.App.1976). When determining whether to overturn a trial judge's decision, the reviewing court must judge each case on its own facts. State v. Land, supra at 292.

"(3-5) Here venireman Walsh continued throughout the voir dire examination to insist that he would be a fair and impartial juror and that he would give no additional credence to the police officer's testimony. Although it is up to the trial judge and not the venireman to conclude that he is able to be an impartial juror, the venireman's testimony on his impartiality is evidence of that fact. State v. McGrew, supra at 551(4). Friendship or relationship with a police officer alone is not sufficient to disqualify a venireman. See, e. g., State v. Eaton, 504 S.W.2d 12, 17(9) (Mo.1973); State v. Cashman, 485 S.W.2d 431, 434(5) (Mo.1972); State v. Drake, 518 S.W.2d 335, 337(6) (Mo.App.1975); State v. Wraggs, 512 S.W.2d 257, 259(5) (Mo.App.1974). Nor is friendship with a witness alone. See, e. g., State v. Cashman, supra at 433(3); State v. McGrew, supra at 551-52(6, 7). Mr. Walsh was not a close friend of the testifying police officer. For the last five years of the thirty-year acquaintanceship, Mr. Walsh had at the most merely said 'hello' to the officer once in a while. Mr. Walsh stated he would be impartial and would put the officer to the same standards of credibility as any other witness. Both of these factors lead us to find that there was no abuse of discretion in refusing to excuse venireman Walsh for cause."

In this case, the only fact elicited on voir dire was that Long had grown up in Ms. Spry's neighborhood. On the basis of that fact standing alone and in view of the absence of equivocation on the part of the venireperson as to impartiality, the trial court in this case did not abuse its discretion in overruling the challenge of Ms. Spry for cause. State v. Dodson, supra.

Appellant's second point is directed at the trial court's overruling of his motion to quash the information on which he was tried on the grounds that it charged two separate offenses in a single count and was therefore duplicitous. The information charged that appellant "acting in...