State v. Murphy, 36652
| Decision Date | 10 February 1976 |
| Docket Number | No. 36652,36652 |
| Citation | 533 S.W.2d 716 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Larry Dennis MURPHY, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Joseph W. Warzycki, Asst. Public Defender, Charles D. Kitchin, Public Defender, James C. Jones, III, Robert O'Blennis, Asst. Public Defenders, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Defendant appeals his conviction for assault with intent to kill with malice. § 559.180 RSMo 1969. He was sentenced by the trial court to 38 years imprisonment under the Second Offender Act. § 556.280 RSMo 1969. We affirm.
About 1:20 a.m. on October 18, 1973, two men entered a liquor store in north St. Louis and asked a clerk for change for a one dollar bill. As the clerk prepared to give the change, one of the men pulled a revolver and shot and seriously wounded the clerk. The two men then fled.
On November 26, 1973, the victim viewed a police lineup and identified the defendant as the man who had shot him. At the trial the victim again identified defendant as his assailant.
The defendant's alibi evidence was that he was playing cards with several other people at the time the shooting occurred.
Defendant's first point on appeal concerns the following portion of the voir dire examination:
Defense counsel moved for a mistrial or, in the alternative, for the venireman's dismissal for cause. The court denied the motion for mistrial but did dismiss the venireman for cause.
The defendant contends the trial court erred in denying his motion for mistrial because the venireman's statement
The trial court has considerable discretion in ruling on challenges of jurors who are not disqualified as a matter of law. State v. Fields, 442 S.W.2d 30(7) (Mo.1969). In particular, the evaluation of the effect of a venireman's comments upon the other prospective jurors, and the necessary remedies, are matters entrusted largely to the trial court's discretion. State v. Turner, 462 S.W.2d 723(1) (Mo.1971).
Normally, the disqualification of an individual juror for an expression of an opinion, or for making remarks indicating bias, is not a sufficient ground for a challenge of the entire panel. State v. Turner, supra; State v. Taylor, 324 S.W.2d 643(9) (Mo.1959). In the instant case the venireman's comments, on their face, do not necessarily reflect a personal disapproval of the defendant, but only the fact that he had seen the defendant before. The defendant maintains the venireman's comments were uttered in such a manner as to indicate that he felt defendant was an unsavory character. The trial court, having heard both the venireman's words and his tone of voice, was the best judge of any possible prejudicial impact on the jury.
The defendant contends the trial court should at least have instructed the jury panel to disregard the venireman's remarks. This again was a matter for the trial court's discretion after hearing the comments.
The trial court is in a much better position than this court to evaluate the effect upon others of a venireman's voir dire comments, and the handling of the matter must be entrusted largely to its discretion. On the record before us, it has not been demonstrated that the trial court abused its discretion in refusing to grant a mistrial and in failing to admonish the jury panel. State v. Taylor, supra.
Defendant's second point on appeal is that the trial court erred in denying his motion for acquittal at the close of the entire case because the state had failed to make a submissible case.
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