State v. Lynch
| Decision Date | 03 October 1991 |
| Docket Number | 17314,Nos. 16836,s. 16836 |
| Citation | 816 S.W.2d 692 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jon Raymond LYNCH, Defendant-Appellant. Jon Raymond LYNCH, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Barbara J. Wood, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent-respondent.
Robert J. Maurer, Lew A. Kollias, Columbia, for defendant-appellant movant-appellant.
Defendant Jon Raymond Lynch was charged with forcible rape in violation of § 566.030. He testified. He admitted having sexual intercourse with the victim, but said it was consensual. The jury found him guilty. In accordance with the verdict, he was sentenced to imprisonment for five years. He states one point on direct appeal. He also appeals from the denial of his postconviction motion under Rule 29.15, alleging ineffective assistance of counsel.
The following is a condensation of the evidence sufficient for consideration of the defendant's point on appeal. The 19-year-old victim was a student at a college in Vernon County. She testified to the following. At about 9:30 p.m., on September 1, 1989, she was walking along Highway 54 to the home of Mr. Patrick, a friend. Another student was to meet her there. As she approached the road that turned from the highway to Mr. Patrick's house, the defendant, riding on a bicycle, overtook her. They walked together for a short distance. He introduced himself by giving his correct name and address. They talked as they walked. When they neared the road, he gave her a beer from his knapsack and took one himself. At the junction of the road and the highway, they stopped and sat on the side of the road to drink their beers. As she started to leave, the defendant grabbed her. He carried her to the ditch. There he forcibly raped her.
The defendant, in general, confirmed the victim's testimony up to the point where they sat on the roadside to drink their beers. He stated that while they were doing so, the victim kissed him and became sexually aggressive. They repaired to the ditch and consensually engaged in sexual intercourse. When a car came by, the victim became upset and started yelling "rape". He then left and proceeded down the highway to his home in Deerfield.
The victim testified that she got up and ran to Mr. Patrick's home. Her college friend arrived. They spent the night at Mr. Patrick's. The next day, she reported the rape.
The Vernon County Sheriff testified that upon his second interview, the defendant made statements which incriminated himself. The defendant testified that the sheriff misconstrued their conversation. He said that by leading questions the sheriff recited the victim's version of the facts, but that he, the defendant, did not admit they were true. In substance, he denied the incriminating statements.
The defendant's point on direct appeal is the court erred in overruling his motion for a mistrial and his motion for a new trial asserting jury misconduct for the reason "that a member of the appellant's jury, shortly following voir dire, made the following remarks to other members of the venire: 'Yes, we could have already convicted him if something (meaning voir dire) hadn't taken so long.' " That point has the following background.
The commencement of the defendant's trial was delayed by an evidentiary hearing upon a motion. The state then conducted a lengthy voir dire examination. This was followed by an even more lengthy voir dire examination by the defendant's counsel. The voir dire examination was completed a few minutes after 12 noon. The jury was then picked so the balance of the panel could be excused. The court then adjourned for the noon recess. After the noon recess, a jury of 12 reported to the courtroom.
Out of hearing of the jury, defendant's counsel reported to the court that at a local cafe, during the noon recess, two of the defendant's sisters overheard a comment by a person believed to be a member of the jury panel to others believed to be members of the jury panel. Counsel reported that from the description of the person making the comment, it was his opinion that person was on the jury. The comment was to the effect that "these proceedings are taking too long, we could have already convicted the guy and gone home by now." Counsel moved for a mistrial and offered to call the defendant's sisters to establish the facts reported to the court.
The sisters testified. Their testimony confirmed the report of counsel. That testimony is exemplified by the following.
"Q. Okay. Did one of them say something unusual that caught your attention?
A. They were all saying something about lunch being so late and everything and a man in a blue shirt that was sitting about four foot from me said--
Q. Excuse me one moment. Go ahead. What did he--
A. He said something like, 'Yeah, we could have already convicted him if something hadn't taken so long.' If--whatever it is when you pick the jury.
Q. Did he get any reaction from the other people at the table?
A. They just kind of went, 'Yeah,' and laughed.
Q. Would you recognize this person if you saw him again?
A. Yeah."
Following the testimony of the two sisters, the defendant's counsel moved that the sisters be allowed to look at the jury and determine if they could actually identify the person who made the comment as a member of the jury. The court announced:
The first recess occurred after the testimony of the victim and the sheriff. During that recess, one sister testified that the man who made the comment was on the jury. "This second seat in the front row." The description of that juror matched the description previously given of the person who made the comment. The state stipulated that the testimony of the second sister would be the same. The court then said the following.
The court did not expressly deny the motion for a mistrial. It did expressly deny the defendant's motion for a new trial, which contained an allegation of error because the court failed to sustain the defendant's motion for a mistrial.
The defendant's allegation of error must be reviewed under the following fundamental principle.
State v. Wheat, 775 S.W.2d 155, 158 (Mo. banc 1989), cert. denied, 493 U.S. 1030, 110 S.Ct. 744, 107 L.Ed.2d 762 (1990).
Also see Presley v. State, 750 S.W.2d 602 (Mo.App.1988), cert. denied, 488 U.S. 975, 109 S.Ct. 514, 102 L.Ed.2d 549 (1988). There can be no doubt the reported comment demonstrates "bias and prejudice", a predisposition to convict before evidence is heard. The state argues it could have been a comment made in jest, or a humorous remark. Cf. United States v. Pantone, 609 F.2d 675 (3d Cir.1979). One would hope that to be true. But, in the absence of explanation, the chance that it was not is not a risk the defendant should bear.
Had the predisposition embodied in the comment been expressed by a juror during the voir dire examination, in the absence of rehabilitation, it would have been error not to excuse that juror when challenged for cause. Presley v. State, supra; State v. Leipus, 675 S.W.2d 896 (Mo.App.1984). Even if such a remark could be regarded as "equivocal" upon such a challenge, it would have been the duty of the trial court to conduct an independent investigation to determine the existence of bias. State v. Burgess, 800 S.W.2d 743 (Mo. banc 1990); State v. Trimble, 654 S.W.2d 245 (Mo.App.1983). Moreover,
" State v. Land, 478 S.W.2d 290, 292 (Mo.1972).
Presentations of claims of juror bias disclosed after the voir dire examination may involve a variety of factors. Disclosure of the alleged bias may or may not have been called for by the voir dire examination. State v. Brusatti, 745 S.W.2d 210 (Mo.App.1987); Cannon v. Lockhart, 850 F.2d 437 (8th Cir.1988). A defendant may not complain promptly upon disclosure before the verdict. See State v. O'Dell, 684 S.W.2d 453 (Mo.App.1984). The disclosure may come during, United States v. Pantone, supra, or after trial. Baca v. Sullivan, 821 F.2d 1480 (10th...
To continue reading
Request your trial
-
State v. Hayes
...reversed because of circumstances involving juries warrant comment, State v. Baumruk, 85 S.W.3d 644 (Mo. banc 2002), and State v. Lynch, 816 S.W.2d 692 (Mo.App.1991). Baumruk involved a murder charge directed to a shooting that occurred at the St. Louis County Courthouse, the same location ......
-
State v. Purdue, 21917
...the people who heard Ms. Moore's remark was not identified and could have been a member of the jury. Defendant relies on State v. Lynch, 816 S.W.2d 692 (Mo.App.1991), in support of his first point on appeal. His reliance on Lynch is based on the assertion that there was an unidentified pote......