State v. Owens, 31830

• Decision Date: 11 August 1981
• Docket Number: No. 31830,31830
• Parties: STATE of Missouri, Respondent, v. Donald W. OWENS, Appellant.
• Court: Missouri Court of Appeals

Page 448

620 S.W.2d 448

STATE of Missouri, Respondent, v. Donald W. OWENS, Appellant.

No. 31830.

Missouri Court of Appeals, Western District.

Aug. 11, 1981.

James W. Fletcher, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before KENNEDY, P. J., SOMERVILLE, C. J., and SHANGLER, J.

SHANGLER, Judge.

The defendant Owens was convicted by a jury of robbery in the second degree and was sentenced to a term of five years imprisonment. The appeal contends error in the jury selection process and in the method employed at trial to identify the defendant.

The defendant and another robbed Tallen and Carty by means of a gun of the merchandise contents of their truck. The robbers took a number of digital watches from among those goods. The victims noted the license plate number of the van used by the robbers and one of them was captured by the police on that information. The defendant Owens and the other were identified from police photographs, and the defendant Owens separately was identified in a lineup by the victims as a perpetrator.

In the course of jury selection, counsel for the defendant posed to the venire inquiry as to whether the testimony of a police officer witness would be given more credit than that of other witnesses. Veniremen Kosloski and Roberts responded.

Venireman Kosloski disclosed that fully two-thirds of the Shriners Temple club he frequented were police officers, but he could not recall their names. Then this colloquy ensued:

Counsel: Do you know Detective William Mynatt or Officer Merle Hoffman?

Kosloski: The names are not familiar.

Counsel: Say you saw them and you recognized them. Would you find it hard to judge their testimony impartially?

Kosloski: (Nods head affirmatively.)

Counsel: And you won't know for sure if you knew them or not until you saw them?

Kosloski: I'd have to see them first.

Venireman Roberts disclosed that local police officers were his lodge friends and church attendants, and that a first cousin trained as a special policeman. Roberts at times discussed police work with them, and the impression developed of police work was: "(t)hey got almost as hard a job as I have." Then this colloquy ensued:

Counsel: Do you think that since the police will testify in this case and since so many of your friends and acquaintances are police officers, do you think that might affect you in judging this case?

Roberts: It's very possible. I could be acquainted one name is familiar

Counsel: Detective Mynatt or

Roberts: Yes.

Counsel: That's familiar to you?

Roberts: Yes. I'd have to see him before I'd know.

Counsel: If you did see him and knew him, do you think you might tend to view his testimony in a different light?

Roberts: It's possible.

The defendant challenged both veniremen for cause, each on the ground that if a police officer a venireman knew were called as a witness, "(the venireman) would tend to be partial to (his) testimony." The court denied the challenges. We note that only the refusal of the Kosloski challenge was preserved for review as error. Thus, we examine the contention as to venireman Roberts only for plain error. In fact, Officer Mynatt was not presented to the jury, and the record gives no hint of recognition by either venireman of any police officer who testified. Thus, the defendant poses an error only hypothetical a prejudice which might have been.

The administration of justice indeed demands that a litigant have a jury to try the cause without interest or prejudice as between the contenders. State v. DeClue, 400 S.W.2d 50, 57(13) (Mo.1966). Thus, a member of the venire may not enter upon the trial of a case with the formed disposition to give a preferential belief to the evidence of any particular class or person. State v. Spidle, 413 S.W.2d 509, 512(1, 2) (Mo.1967). The bare possibility of a prejudice does not suffice to disqualify the juror or to override the discretion of the trial court to seat the venireman. State v. Cheesebrew, 575 S.W.2d 218, 221(1, 2) (Mo.App.1978); State v. Cuckovich, 485 S.W.2d 16, 22(11) (Mo.banc 1972). A prolonged friendship by a venireman with a witness for a party, of itself, does not sustain contention that the refusal of the challenge for cause by the trial court was an abuse of discretion absent a clearly drawn prejudice. State v. McMullin, 576 S.W.2d 581 (Mo.App.1979). That application of principle applies with equal validity where the witness is an officer of the law. State v. Watson, 588 S.W.2d 20, 23(5, 6) (Mo.App.1979).

It is where the court seats a juror with an actual bias against an interest of the litigant that the denial of the challenge for cause amounts to an abuse of discretion. State v. Holt, 592 S.W.2d 759, 767(8-10) (Mo.banc 1980). Thus, where the venireman expresses a fixed partiality toward peace officer testimony per se as a generic class or toward an actual witness, the bias of credibility contrary to the interest of the complainant-litigant disqualifies service as a juror. The cases cited by the defendant Owens all demonstrate that principle. In State v. Spidle, supra, the essential issue was the contention...