State v. McElroy, 19142
| Citation | 894 S.W.2d 180 |
| Decision Date | 03 February 1995 |
| Docket Number | No. 19142,19142 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Leonard Roy McELROY, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
Dee Wampler, Wampler, Wampler & Catt, Springfield, for defendant-appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Following jury trial Leonard R. McElroy (Defendant) was convicted on two counts of receiving stolen property, § 570.080, RSMo 1986, and sentenced as a prior and persistent offender to two consecutive terms of fourteen years' imprisonment. He was acquitted on two other counts of receiving stolen property. Defendant appeals the judgment of conviction. We affirm.
In four points relied on, Defendant charges the trial court erred: (1) By refusing to sustain certain of Defendant's requests to strike venirepersons for cause; (2) in its rulings on discovery issues regarding a highway patrol file on a confidential informant; (3) by overruling Defendant's objections to the prior and persistent offender evidence and by making inadequate findings regarding Defendant's status as a prior and persistent offender, and (4) failing to sustain Defendant's motion for change of judge filed after the jury verdict but before sentencing.
As none of Defendant's points challenge the sufficiency of the evidence, the facts may be briefly stated.
In 1990, Mike Rogers, a Missouri Highway Patrolman, was working undercover investigating stolen property cases. A confidential informant, Gary Wilkerson, was assisting Rogers in this effort. Wilkerson furnished Rogers with information that led Rogers to Polk County, Missouri, where he first met Defendant. When Rogers and Defendant initially met, Wilkerson, Frank Boswell, and Defendant's son, Paul, were also present. During their first meeting, as they discussed stolen property, Defendant told Rogers "he could get [him] anything [Rogers] wanted."
Later, during their second meeting, as they discussed what kinds of stolen property Defendant might have for sale, Rogers told Defendant he was mostly interested in stolen motor vehicles, especially late model four-wheel-drive pickups or sports cars, as he had an outlet for them in Kansas City.
In a follow-up contact in December 1990, Defendant told Rogers "he had a guy that was going to be bringing him stuff all week." On December 24, 1990, Defendant sold Rogers a 1989 Chevrolet pickup truck for $1,800. The truck was stolen on December 20, 1994, from John O'Neil near Nixa, Missouri.
As part of the investigation of Defendant's activities, a search warrant for his farm was executed on June 18, 1991. Over 100 items of property were seized, including parts of an S10 Chevrolet Blazer motor vehicle. At trial, Virgil McCall of Polk County, identified the Blazer recovered from Defendant's farm as Defendant was charged and convicted of receiving the stolen property that belonged to O'Neil and McCall. This appeal followed.
belonging to him. It had been stolen May 18, 1991.
Defendant states in his first point that the trial court erred in overruling his challenge for cause to eight venirepersons. Six of the eight challenged venirepersons did not serve on the jury, however, because they were removed as the result of Defendant's preemptory strikes. The state argues that because of § 494.480.4, RSMo Supp.1993, and cases interpreting it, we need only review Defendant's challenges to the two venirepersons who actually served on the jury. 1 We agree.
Under the present version of § 494.480.4, failure to strike an unqualified venireperson for cause is not reversible error of law unless the unqualified juror actually served on the final jury. State v. Wise, 879 S.W.2d 494, 512 n. 9 (Mo. banc 1994). As § 494.480.4 is procedural in nature, its retroactive application does not constitute an ex post facto violation. State v. Lawson, 876 S.W.2d 770, 777 (Mo.App.1994); State v. Wings, 867 S.W.2d 607, 609 (Mo.App.1993). Based on current law, Defendant is not entitled to appellate relief as to the six venirepersons challenged who did not serve.
Ivan Massey and Karen Owens were the venirepersons who served as jurors after Defendant's challenge for cause as to them was overruled. On appeal, Defendant contends that his challenge to Massey should have been sustained because of Massey's voir dire answer that Defendant's failure to testify would indicate guilt. However, at trial Defendant's challenge of Massey did not present that issue to the court. Instead, it took the following form:
As to Owens, Defendant argues on appeal that his challenge to her should have been sustained because of her voir dire answers that (1) Defendant's failure to testify would suggest his guilt, (2) filing of a charge was some evidence of guilt, and (3) she might not be independent, i.e., she might cave in against her own judgment if eleven other jurors had a different view. 2 However, as with Massey, Defendant's objections to Owens, as voiced at trial, were not fact specific and did not present the same issues that he now attempts to present. Instead, they took the following form:
Finally, we note that the allegations of error in Defendant's motion for new trial regarding challenges for cause read:
A trial court has broad discretion in ruling on challenges for cause. State v. Harris, 870 S.W.2d 798, 805 (Mo. banc 1994). Appellate courts will not disturb a trial court's ruling on a challenge for cause unless it constitutes a clear abuse of discretion and results in a genuine probability of injury to the complaining party. Id.
"[A] challenge for cause requires the party seeking removal to state the specific reason why that venireperson is not qualified to serve and to convince the judge of the validity of that reason." State v. Debler, 856 S.W.2d 641, 645 (Mo. banc 1993). A challenge for cause must be "clear, definite." See State v. Brown, 364 Mo. 759, 267 S.W.2d 682, 690 (1954).
With certain exceptions not here applicable, in a jury-tried case allegations of error to be preserved for appellate review must be included in a motion for new trial. Rule 29.11(d). This includes allegations of error in the selection of the jury. State v. Robinson, 825 S.W.2d 877, 879 (Mo.App.1992).
Here, Defendant's challenge for cause to venirepersons Massey and Owens at the close of voir dire was not "clear, definite" or "specific." Neither at trial nor in the motion for new trial did Defendant challenge Massey because of his answer that Defendant's failure to testify would indicate guilt. Likewise, the reasons given the trial judge for Defendant's challenge of Owens were nonspecific, unclear, and indefinite reasons and were not the reasons now assigned on appeal. Thus, the point regarding Massey and Owens was not presented to the trial court and preserved for our review. Brown, 267 S.W.2d at 690; State v. Martin, 815 S.W.2d 127, 129 (Mo.App.1991).
The fact that the jury acquitted Defendant on two other counts of receiving stolen property suggests that no manifest injustice or miscarriage of justice resulted from Massey and Owens serving on the jury. We find no plain error under Rule 30.20. Point I is denied.
Defendant's second point is that the trial court committed reversible error by refusing to impose sanctions against the state, including dismissal of the charges, for its failure to allow inspection and copying of a highway patrol file regarding one Gary Wilkerson, a confidential informant.
In 1990, Wilkerson was in the car repair business and was working with the highway patrol as a confidential informant. Wilkerson furnished information to the highway patrol about Defendant and his activities. The informant was also present when a highway patrolman, working undercover, first met Defendant and bought property from him. As a discovery request, Defendant asked that he be permitted to inspect and copy a file maintained by the highway patrol regarding Wilkerson. When such request went unanswered, Defendant moved for an order "quashing, striking and suppressing all testimony of [the state's] witnesses" or dismissing the charges.
At a pretrial hearing to determine the propriety of Defendant's requests, defense counsel asserted that the highway patrol file on Wilkerson "would have provided impeaching information for me." Continuing, counsel told the trial court, Defense counsel argued that "[I]f ... they'd give me the file on ... Wilkerson ... I'd know more about him and could locate him." The state pointed out...
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