State v. Morrison

Decision Date14 November 1977
Docket NumberNo. 59992,59992
Citation557 S.W.2d 445
PartiesSTATE of Missouri, Respondent, v. Steven MORRISON, Appellant.
CourtMissouri Supreme Court

J. Martin Kerr, Independence, for appellant.

Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.

SEILER, Judge.

This appeal is from a conviction for a sale of 1000 amphetamine pills. A jury found the defendant guilty but was unable to agree on punishment. The trial court sentenced defendant to thirty years imprisonment.

The court of appeals, Kansas City district, affirmed the conviction, ruling, among other points, that defendant was not in position to challenge the alleged error of the trial court in failing to sustain his challenge for cause of a venireman. The court of appeals ruled that defendant must either have used one of his peremptory challenges to remove the juror or else have exhausted them elsewhere, before he could complain on appeal. 1 The cause was ordered transferred here on the application of defendant, largely because of the above ruling on the juror question. We reach the same result as the court of appeals, but reject the view as to what defendant must do to be in position to raise the juror matter on appeal.

This appeal involves the second of the two offenses described in State v. Morrison, 545 S.W.2d 376 (Mo.App.1976). It was tried in the same county approximately one month after State v. Morrison, supra, was tried.

The evidence in the present case is similar to the evidence in the first case. The same highway patrolman testified to a sale of 1000 tablets, identified the defendant, described his appearance at the time of the sale and identified a picture taken June 2, 1974, thirty days after the alleged sale as being a picture of the defendant. The state was careful in the second trial not to have the trooper testify any way as to the sale of the 100 tablets which constituted the basis for the first charge. The trooper testified as to May 1 activity only that he had made an arrangement for the sale on May 2 which constituted the basis of the charge in the present case.

Defendant asserts the trial court erred in failing to strike venireman Sharon Pierson for cause, she having, in response to a question asking if any of the panel had read or learned about the case in the radio, newspapers or otherwise, answered, "I read about it, the previous trial", apparently referring to defendant's trial a month earlier on a similar charge, but that she had formed no opinion as to guilt or innocence. The court of appeals overruled the claim of error on the part of the trial court in overruling the challenge for cause, but, as said, did so on the ground that defendant was not in a position to raise the point because he failed to show that she served either because defendant's peremptory challenges were exhausted or else that she was removed by his exercising one of his peremptory challenges, citing State v. Londe, 345 Mo. 185, 132 S.W.2d 501, 504 (1939) and State v. Simpson, 529 S.W.2d 19, 21 (Mo.App.1975). This holding is not correct. Under the law defendant is entitled both to a qualified panel and the statutory number of peremptory challenges. He need not sacrifice one to the other. The law was well stated by Somerville, J., in State v. Thompson, 541 S.W.2d 16, 17 (Mo.App.1976) as follows:

This state has steadfastly hewed to the proposition that an accused in a criminal case must be afforded a full panel of qualified jurors before he is required to expend his peremptory challenges, and denial by a trial court of a legitimate request by an accused to excuse for cause a partial or prejudiced venireman constitutes reversible error. State v. DeClue, 400 S.W.2d 50 (Mo.1966); State v. Land, 478 S.W.2d 290 (Mo.1972); State v. Lovell, 506 S.W.2d 441 (Mo.banc 1974). This proposition is rooted in the constitutionally guaranteed right of every accused to a "public trial by an impartial jury", Mo.Const. Art. 1, Sec. 18(a), and personifies a dedicated judicial effort to preserve inviolate this constitutionally guaranteed right in the broadest sense. Experience has taught that it is not always possible to objectively demonstrate juror partiality. Not infrequently, juror partiality is subtle, elusive, and highly subjective. When juror partiality is capable of being objectively demonstrated, challenges for cause have been devised as a means for achieving impartial jury. When juror partiality is sensed, but incapable of being objectively demonstrated, peremptory challenges have been devised as a means for achieving an impartial jury. Together, they serve the ultimate goal of obtaining a jury free from the taint of both objectively demonstrated and subjectively sensed partiality. Purity of the right to be tried by an impartial jury is so zealously guarded that an accused may covet his peremptory challenges and "spend" them as he alone sees fit. Therefore, if an accused is not presented with a full panel of jurors objectively demonstrated as qualified before he exercises his peremptory challenges, his given number of peremptory challenges is proportionately reduced and his right to "spend" them as he alone sees fit is accordingly impinged. The strength and integrity of trial by jury in a criminal case lies in the composite impartiality of the jury finally selected to try a particular case, and both are eroded to an unknown extent when even a single or isolated instance of partiality creeps in, whether objectively demonstrated or subjectively sensed.

In one of the cases in point cited in the above quotation, State v. DeClue, 400 S.W.2d 50, 57 (Mo.1966), we said If such a juror (referring to one who should not be permitted to remain on the panel) serves in the trial of a criminal case, the defendant thereby takes on a burden which he is not supposed to have. If such prospective juror does not serve only because he is removed on the basis of the exercise of one of defendant's peremptory challenges, the defendant thereby has fewer than the number of true peremptory challenges to which he is entitled.

In State v. Land, 478 S.W.2d 290, 292 (Mo.1972), we reiterated that it is the "settled law" of this state "that the defendant in a criminal case is entitled to a full panel of qualified jurors before he is required to make his peremptory challenges." 2 The court there held the trial court should have sustained defendant's challenge for cause "and not have preempted one of the peremptory challenges...

To continue reading

Request your trial
27 cases
  • State v. Williams
    • United States
    • New Jersey Supreme Court
    • 8 Diciembre 1988
    ...is so zealously guarded that an accused may covet his peremptory challenges and 'spend' them as he alone sees fit...." State v. Morrison, 557 S.W.2d 445, 446 (Mo.1977). No one can dispute that "in a criminal case ... defendant is afforded twenty opportunities to excuse any venireman perempt......
  • State v. Bey
    • United States
    • New Jersey Supreme Court
    • 2 Agosto 1988
    ...challenges is proportionately reduced and his right to "spend" them as he alone sees fit is accordingly impinged.' " State v. Morrison, 557 S.W.2d 445, 446 (Mo.1977) (quoting State v. Thompson, 541 S.W.2d 16, 17 (Mo.App.1976)); State v. Brown, 496 So.2d 261, 265-66 (La.1986) (loss of peremp......
  • State v. Wacaser, 70726
    • United States
    • Missouri Supreme Court
    • 31 Julio 1990
    ...when even a single or isolated instance of partiality creeps in, whether objectively demonstrated or subjectively sensed. State v. Morrison, 557 S.W.2d 445, 446 (Mo. banc 1977), quoting State v. Thompson, 541 S.W.2d 16, 17 (Mo.App.1976). The Court's statement in Morrison is simply not corre......
  • State v. Pride
    • United States
    • Missouri Court of Appeals
    • 9 Mayo 1978
    ...144 Mo. 600, 46 S.W. 733, 735 (1898); State v. Hirsack, 465 S.W.2d 543, 545 (Mo.1971). Our supreme court recently held in State v. Morrison, 557 S.W.2d 445 (Mo.1977), that a defendant is entitled to both a qualified panel and the statutory number of peremptory challenges, and that he need n......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT