State v. Lee
| Decision Date | 27 September 1977 |
| Docket Number | No. 59607,59607 |
| Citation | 556 S.W.2d 25 |
| Parties | STATE of Missouri, Respondent, v. Vincent X. LEE, Appellant. |
| Court | Missouri Supreme Court |
Lee M. Nation, Kansas City, for appellant.
Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
Charged by indictment with two counts of robbery first degree with a deadly and dangerous weapon and two counts of murder first degree, defendant was convicted on each count and sentenced to four terms of life imprisonment. 1 Defendant appealed to the Missouri Court of Appeals, Kansas City district, and raised questions of constitutional construction falling within the exclusive appellate jurisdiction of the Supreme Court under Mo.Const. Art. V, § 3, as amended in 1970. Accordingly the cause was transferred here prior to opinion.
Five assignments of error are presented: (1) Failure to quash the jury panel because Missouri's jury selection process systematically excludes women; (2) Erroneous joinder and refusal to sever four felony charges; (3) Wrongful denial of defendant's motion for change of venue as pretrial publicity prevented him from receiving a fair trial in Jackson County; (4) Improper limitation of defendant's direct examination of an alibi witness; and (5) Insufficiency of the evidence to support the verdicts. We affirm.
The convictions arose from occurrences on the afternoon of June 15, 1975, in the "7-11" Store at 23rd Street and Noland Road in Independence, Missouri. Defendant was seen in the store about 2:00 p.m. and soon thereafter was observed driving from the parking lot at a high rate of speed. Within a few minutes two murder victims were found in the store, one a female employee and the other a male, apparently a customer. Abundant evidence linked defendant with the murders and robbery of the store. The evidence also indicated defendant had robbed the dead male victim.
Defendant contends the trial court erred in failing to strike the jury because Missouri's jury selection process, Mo.Const. Art. I, § 22(b) and § 494.031(2), RSMo Supp.1975, 2 systematically excludes women from jury service and is therefore unconstitutional, citing Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). State v. Duren, No. 59914, 556 S.W.2d 11 (Mo. banc 1977), decided concurrently with the case at bar, upheld the challenged constitutional section and its implementing statute which permit women the privilege of declining jury service and that decision is dispositive of this defendant's sex based challenge to the facial validity of the cited sections.
The remaining question is whether from the evidence it has been shown that the Jackson County jury selection process resulted in criminal venires not "representative of the community" and "almost totally male", as those constitutional standards were delineated in Taylor, requiring reversal in this case. Defendant submitted 1970 Jackson County census figures reflecting approximately 407,000 county inhabitants over 21 years of age with 54% (221,000) women and 46% (185,000) men, urging that we assume this gender distribution adhered among those eligible for Jackson County jury duty in 1975. A number of evidentiary gaps appear, essentially the same as those discussed at length in Duren, the companion case referred to above. However, assuming arguendo that 54% of the persons eligible for jury service in Jackson County in 1975 were female, the jury selection process in Jackson County and its results pertaining here were as follows: (1) By questionnaires, the jury commissioners randomly canvassed For the week of November 17, 1975 (the time of trial), 300 veniremen were summoned and of that number 88 or 29.3% were women. The panel of 90 in this case included 9 (10%) women but the final 12 were men. These figures reflect a significantly higher percentage of female representation in wheel and panel than those condemned in Taylor.
70,000 names in the county voter registration lists, notifying those canvassed of inter alia, the female privilege not to serve; (2) From returned questionnaires, the 1975 wheel or master jury list was compiled containing approximately 30,000 names of men and women apparently qualified for jury duty; however, no information was adduced of the 1975 wheel's gender distribution; 3 (3) Jury panels were summoned from the wheel on a random basis each week and those summoned were notified of the female option to decline service; (4) During the months of June through October, 1975, approximately 7,186 persons were summoned for jury duty and of that number 1,873 or 26% were women; (5) Of those summoned, 3,197 appeared of whom 451 or 14% were women.
The statistical data of Taylor were examined at length in Duren and the discussion in that case is pertinent here. Under that analysis it is apparent the proof in the case at bar does not support the contention that the jury venire was the result of constitutionally impermissible systematic sex based exclusion. The first assignment of error is denied.
Defendant next contends the court erred permitting joinder of four charges in a single indictment and compounded the error by denying the motion for severance, forcing him to defend all charges in a single trial. The killings of Pope and Mitchell were parts of the same transaction, i. e., the robberies involving money taken from the 7-11 Store and the wallet (and its contents) taken from Mr. Pope. Each act occurred at the same location, apparently in close succession and though they constituted separate criminal offenses, all were part of the same transaction. The state cannot be said to have added unconnected crimes or to have split a single crime for prosecution in separate parts. Joinder of the charges was permissible under Rule 24.04, as amended in 1971. 4 See State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).
In State v. Duren, supra, this court considered a constitutional challenge to Rule 24.04, essentially the same as that made by this defendant. The ruling in that case is dispositive of the issue here and, as in Duren, defendant has neither suggested nor has our examination of the record disclosed any abuse of discretion in denial of the requested motion for severance.
It is contended the trial court erred in failing to grant a change of venue because the evidence showed that pretrial publicity of the crimes was so extensive defendant could not receive a fair trial in Jackson County. A criminal defendant is not entitled to a change of venue to another county merely because he alleges prejudice against him on the part of the inhabitants of the county in which the cause is pending.
He must, as provided in Rule 30.04, file an application setting forth the grounds on which the change is sought and the application "shall, except as hereinafter provided, be supported by the affidavit of the petitioner and by the affidavits of at least two credible, disinterested citizens of the county where the case is pending, and shall be proved to the satisfaction of the court by legal and competent evidence . . . ." (Emphasis added.) Thus he is required to file such affidavits of witnesses who attest to the pervasive bias against him. State v. Barrington, 198 Mo. 23, 95 S.W. 235 (1906); State v. McGee, 341 Mo. 148, 106 S.W.2d 478 (1937). Defendant's application for change of venue is not contained in the transcript nor do we find reference to or copies of supporting affidavits. Respondent's brief states defendant failed to file the required affidavits and we find nothing to contradict this assertion of fact. This deficiency warrants denial of the motion. State v. Euge, 349 S.W.2d 502 (Mo.App.1961).
Defendant however insists the change of venue should have been ordered notwithstanding the procedural defect. In State v. Denmon, 473 S.W.2d 741 (Mo.1971), the trial court had properly refused an application for change of venue because the provision of Rule 30.04 requiring supporting affidavits of five witnesses (for counties of less than 75,000) had not been met. The trial court's refusal to grant a change on grounds within his own knowledge was affirmed against defendant's claim of abuse of discretion. The Rule provides that if the facts alleged as grounds for change in the application are "within the knowledge of the court or judge, it or he may order such removal without requiring any formal proof or the filing of supporting affidavits. . . ." Seeking to avail himself of this provision, defendant argues that wholesale pretrial publicity of the crimes charged resulted in prejudice among inhabitants of the county. Extensive evidence of media coverage was introduced and at least two of the news articles referred to defendant's prior criminal record. Other references concerning defendant were not relevant to his guilt or innocence and the time lapse occurring between the dates of publication and trial ameliorated their impact. The latest public dissemination of information was June 19, 1975, while the change of venue hearing date was October 10, 1975, and the trial was held November 17 of that year. Moreover, the trial judge cautioned counsel that "if we are unable to select a panel using the care that we intend to, we may have to back up and make a different ruling on the change of venue", demonstrating a commendable concern for fairness in the conduct of the proceeding.
The bulk of the publicity had occurred within a very short period about four months prior to trial and the references to defendant's past criminal activity were limited. Approximately 43 of 70 prospective jurors indicated they had some knowledge that a robbery had occurred at the 7-11 Store and that murders were involved. Defendant in his brief asserts the 43 veniremen remembered the incident though they had been informed only that Vincent X. Lee had been charged with robbery and murder. However, the prosecutor had at that...
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