State v. Pendas

• Decision Date: 22 June 1993
• Docket Number: Nos. WD,s. WD
• Citation: 855 S.W.2d 512
• Parties: STATE of Missouri, Respondent, v. PENDAS, Appellant. Celestino PENDAS, Appellant, v. STATE of Missouri, Respondent. 44863, WD 46997.
• Court: Missouri Court of Appeals

Page 512

855 S.W.2d 512

STATE of Missouri, Respondent, v. PENDAS, Appellant.

Celestino PENDAS, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 44863, WD 46997.

Missouri Court of Appeals,

Western District.

June 22, 1993.

Susan L. Hogan, Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and TURNAGE and KENNEDY, JJ.

TURNAGE, Judge.

Celestino Pendas was convicted of one count of selling a controlled substance, § 195.211, RSMo Supp.1990, and he was sentenced to a fifteen-year term of imprisonment in accordance with the jury verdict. On appeal, Pendas contends that the trial court erred by failing to strike a prospective juror for cause, by overruling his objection to a portion of the prosecutor's closing argument, and by incorrectly defining "reasonable doubt" in a jury instruction. He also appeals from the denial of his Rule 29.15 motion for post-conviction relief, claiming that his trial counsel was ineffective for failing to investigate or call a prospective witness. Affirmed.

In March 1990, Officer Rogers of the Kansas City Police Department went to an apartment on East Armour in Kansas City to attempt to make an undercover drug buy. Rogers made a purchase from a man in the apartment. Rogers obtained a search warrant and the next night returned to make a confirmation buy. On his second visit and prior to the execution of the warrant, Rogers knocked at the apartment door and a man identified as Pendas answered and asked Rogers what he needed. Rogers said he needed to buy a "20." Pendas told another man in the apartment that Rogers wanted a "20" and told the other man to give Rogers a "rock." The second man gave Rogers a rock which tested positive for cocaine base, or crack cocaine.

The search warrant was executed shortly after Rogers left the apartment. Pendas and a woman were the only people in the apartment when the warrant was executed. Rogers identified Pendas from two photographic lineups as the person who opened the door on his second visit.

During voir dire, the prosecutor asked the venire the following question:

Now, the punishment in this case will be five years--range from five years in the Missouri Department of Corrections to 15 years, and you will have to impose sentence in this case somewhere in that range. Is there anyone who cannot impose sentence within that punishment range?

There was no response to that question. Later, Pendas' trial counsel asked the venire if any of them felt that they could not be fair or impartial because the case involved the sale of cocaine. The following exchange occurred with venireperson Robert Peterson:

VENIREPERSON PETERSON: Yeah. As far as guilt or innocence, I don't have no problem with it; but if it were a guilty verdict, I would come down on the harder side. I would have a bias if we have anything to do with sentencing.

. . . . .

DEFENSE COUNSEL: Mr. Peterson, just to clarify things, what you are saying is that you think you could be fair and impartial as far as the guilt phase or not guilty phase of it, but you feel that your strong feelings toward this type of a crime involving the sale of drugs, because of your strong feelings, you would definitely come down on the hard side as far as sentencing is concerned?

VENIREPERSON PETERSON: Yes.

Later in the voir dire, the prosecutor posed the following question to the panel:

Thank you, Your Honor. The first question I have is just a general question. It is addressed to those people who answered the question that they cannot be fair and impartial because of their strong feelings about drugs, because it is understandable that you would have strong feelings about drugs. The question is, can you follow--sit and listen to the evidence and base your verdict upon that evidence and the instructions you are given? Is there anybody who cannot do that?

There was no response from the panel to that question.

Pendas claims that the trial court erred by overruling his request to strike venireperson Peterson for cause. Pendas contends that Peterson was not qualified to serve on the jury because he indicated that he could not consider the full range of punishment in imposing a sentence.

The trial court possesses broad discretion in determining the qualifications of prospective jurors, and its ruling on a challenge for cause will not be disturbed on appeal unless it constitutes a clear abuse of discretion and a real probability of injury to the complaining party. State v. Feltrop, 803 S.W.2d 1, 7 (Mo. banc 1991). The trial court is in a unique position to observe the demeanor of potential jurors and is better positioned to make a determination than this court can make from the record, and therefore, any doubts regarding the trial court's findings will be resolved in its favor. State v. Matthews, 793 S.W.2d 481, 485 (Mo.App.1990).

Peterson made no response to the prosecutor's first question concerning whether anyone could not impose sentence within the range of punishment. Thereafter, Peterson stated that he would come down on the harder side of punishment. Later the prosecutor posed the question to those venirepersons who had strong feelings about drugs of whether or not they could listen to the evidence and base their verdict upon the evidence and the instructions given. There was no response from the panel to either question. The silence of the panel was the same as a response that they could impose sentence within the punishment range and base their verdict upon the evidence and the instructions. Wingate v. Lester E. Cox Medical Center, 853 S.W.2d 912, 916 (Mo. banc 1993).

In State v. Leisure, 749 S.W.2d 366, 372 (Mo. banc 1988), the court stated:

In determining the existence of bias or prejudice, the test is whether an opinion held by a venireman will "readily yield to the evidence in the case, and that the juror will determine the issues upon the evidence adduced in court, free from bias." State v. Wilson, 436 S.W.2d 633, 638 (Mo.1969). Whether bias or prejudice exists is a finding of fact, the determination of which "is essentially one of credibility, and therefore largely one of demeanor." Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984).

* * * * * *

That a juror holds opinions about a case or about the penalty involved, however, is not automatic grounds for disqualification. The determinative question is not whether a venireman has an opinion. It is instead whether that opinion is of such intensity and holds such sway over the mind of a venireman that it will not yield to the evidence presented at trial.

Applying the principles stated in Leisure to this case reveals that Peterson was never asked directly if his strong feeling about drugs was of such intensity and held such sway over his mind that it would not yield to the evidence presented at trial. ¹ However, Peterson indicated...