State v. Merritt, 51389

• Decision Date: 14 July 1987
• Docket Number: No. 51389,51389
• Citation: 734 S.W.2d 926
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Derrick MERRITT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 926

734 S.W.2d 926

STATE of Missouri, Plaintiff-Respondent, v. Derrick MERRITT, Defendant-Appellant.

No. 51389.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 14, 1987.

Motion for Rehearing and/or Transfer Denied Aug. 13, 1987.

Application to Transfer Denied Sept. 15, 1987.

Mary Dames Fox, Asst. Public Defender, Clayton, for defendant-appellant.

William L. Webster, Atty. Gen., Colly Frissell-Durley, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SIMON, Judge.

Defendant, Derrick Merritt, appeals his conviction by jury of murder in the first degree in violation of § 565.020 RSMo Cum.Supp.1984 in the Circuit Court of the City of St. Louis. (All further references shall be to RSMo Cum.Supp.1984 unless otherwise noted.) The defendant was sentenced to life imprisonment without eligibility for probation or parole. His twin brother, Darryl Merritt, was also convicted of the same offense in this trial, and his appeal is currently under submission.

On appeal, defendant raises six points contending that the trial court erred in: (1) striking for cause certain venirepersons; (2) refusing defendant's request to strike venireperson Kerlagon; (3) refusing to submit to the jury defendant's Instruction No. "A," MAI-CR 2d 2.41.2, on justifiable use of force in defense of others; (4) denying defendant's objection and motion to strike venireperson Ehrhard; (5) refusing to submit defendant's Instruction No. "B" on the lesser offense of voluntary manslaughter; and (6) overruling defendant's motion in limine and objection to Kermit Johnson's testimony. We affirm.

Defendant was working at an Amoco service station on February 15, 1985 when Ronald Butler, Jr. stopped to purchase gas. Butler, Jr. gave him twenty dollars for gas, but did not receive any change. He later returned to the station, asked for the fifteen dollars change, and defendant refused to pay him any money.

Butler, Jr. went to work at his father's shoe parlor and told his father, Butler, Sr., what had occurred. Butler, Sr. and a friend went to the service station, asked defendant for the change, and an argument ensued. The manager told Butler, Sr. and his friend to leave and return between 6:00 p.m. and 6:30 p.m. that evening when the register closed.

Defendant, his twin brother, Darryl Merritt, and a friend went to Butler, Sr.'s shop approximately one hour later where another heated argument ensued. Defendant and his companions eventually left.

Butler, Sr. returned to the Amoco station sometime between 6:00 p.m. and 6:30 p.m. and was told that no money would be returned to him since the register was short.

Butler, Sr. testified that at approximately 7:30 p.m., defendant and his twin brother returned to the shop, then left. At approximately 8:00 p.m., defendant and his twin brother again returned to the shop, purportedly to give Butler, Jr. his change. While the change was being counted out, defendant and his brother drew guns. When Butler, Jr. reached for defendant's gun, he was shot.

Kermit Johnson testified that he was outside the shoe parlor in his car when a person shot at him. Bullets taken from the car matched those found in the shoe parlor. Darryl Merritt later testified that it was he who shot at Johnson's car, thinking it was Butler, Sr.

Defendant and his brother testified that it was the Butlers who originally pulled guns. According to defendant, Butler, Jr. was shot in defendant's attempt to take Butler, Jr.'s gun away from him. Both defendant and his brother testified that they were afraid of Butler, Sr. who had threatened them, and who had a gun pointed at them.

Defendant and his brother were arrested at their home later that night. The pistol identified as the one that shot Butler, Jr. was found in a tire located in defendant's yard.

Defendant's first point is that the trial court erred in striking for cause venirepersons Nebitt, Riggs, Richerson, McElmorry, Jordan, Sturgeon, and Parks because they stated they had personal opinions in opposition to the death penalty, yet stated that they could deliberate on the guilt or innocence of the defendant. It is alleged that striking these veniremen led to a "death qualified" jury which denied the defendant a "fair and impartial jury drawn from a fair cross-section of the community." In support of his position, defendant cites Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983), aff'd 758 F.2d 226 (8th Cir.1985), rev'd sub. nom. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), illustrating social science studies which demonstrate that a "death qualified" jury produces a venire unrepresentative of a fair cross-section of the community.

Further, defendant argues that § 546.130 only requires disqualification when a juror's personal objections to the death penalty prohibit him from deliberating on the guilt or innocence of the defendant. Section 546.130 provides:

Persons whose opinions are such as to preclude them from finding any defendant guilty of an offense punishable with death, shall be ineligible to serve as jurors on the trial of an indictment or information charging any such offense, unless such disqualification is waived by the representative of the state when selecting the jury in any such case.

Since these venirepersons stated their ability to fairly deliberate on the question of guilt or innocence, defendant alleges they should not have been stricken, and their elimination as qualified jurors led to a jury heavily biased in favor of conviction.

Where the death penalty is not imposed as here, the trial court did not err in striking venirepersons for cause due to their opposition to the death penalty. State v. Borden, 605 S.W.2d 88, 92 (Mo. banc 1980). Furthermore, both the U.S. Supreme Court and our Supreme Court have upheld the constitutionality of "death-qualified" jurors as not depriving a defendant of a fair and representative cross-section of the community. In State v. Malone, 694 S.W.2d 723, 727 (Mo. banc 1985), our Supreme Court stated that it "is neither bound by Grigsby nor persuaded by it to disregard Wainwright and depart from the line of Missouri cases holding that the state may constitutionally exclude jurors who cannot consider death as a possible punishment." See Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). In view of the foregoing, we find that defendant's first point is without merit.

Defendant's second point is that the trial court erred in refusing his request to strike venireperson Kerlagon from the panel of prospective jurors because Kerlagon was a former police department employee, the wife of a St. Louis City police officer, and was acquainted with two of the state's police witnesses.

It is a well settled principle that a defendant in a criminal case must be given a full panel of qualified jurors before being required to expend any peremptory challenges. In addition, "denial by a trial court of a legitimate request by an accused to excuse for cause a partial or prejudicial venireperson constitutes reversible error." State v. Hopkins, 687 S.W.2d 188, 190 (Mo. banc 1985). However, the record does not indicate any request by defendant to strike Kerlagon for cause.

Our courts have consistently held that an objection or challenge to jurors must be made before the jury is sworn, where the grounds of the objection are known. State v. Robinson, 484 S.W.2d 186, 188 (Mo.1972). See also, State v. Woods, 662 S.W.2d 527, 529 (Mo.App.1983) in which our court stated: "A challenge made for the first time after conviction can only be considered for plain error resulting in a miscarriage of justice or manifest injustice."

Under the rationale of Robinson, 484 S.W.2d at 188, the grounds for which a challenge for cause could have been made arose during voir dire examination. Kerlagon informed the court that her husband currently is a St. Louis police officer, that she had been employed 7 years ago with St. Louis police department, and that she was acquainted with two of the state's police officer witnesses. Since defendant failed to challenge Kerlagon for cause, our review is for plain error.

Initially, we note that the trial court has broad discretion in determining the qualifications of prospective jurors, and the trial court's ruling will not be disturbed unless it is against the evidence and constitutes a clear abuse of discretion. State v. Hopkins, 687 S.W.2d at 189. The trial judge is in a better position to determine a venireperson's qualifications because of his presence and observation, and "any doubts as to the trial court's findings will be resolved in its favor." State v. Smith, 655 S.W.2d 745, 747 (Mo.App.1983).

During voir dire, Kerlogan stated that her husband worked for the police department, and that she had previously worked for that same police department. A relationship to a police officer, standing alone, is not a basis for challenging a juror for cause. State v. Hopkins, 687 S.W.2d at 190. Here, Kerlagon has more than a relationship. She was once an employee of the same department and acquainted with two police officer witnesses. Kerlagon's relational circumstance simply does not fall within the type of situations mandating the disqualification of a juror. For instance, in State v. Hopkins, 687 S.W.2d at 190, the court found that a father's relationship to his police officer son coupled with the fact that the son had died of a violent crime and the fact that he was equivocal on the issue of impartiality served to disqualify him. In State v. Holliman, 529 S.W.2d 932 (Mo.App.1975), a juror was held to be unqualified because his son was a police officer on duty at the time an alleged murder occurred, and he was a friend of both the decedent and the decedent's father.

Here, Kerlagon's employment terminated seven years ago, her only tie with the police department is through her husband and her acquaintances. That, by itself, is not enough to disqualify her. In State v....