State v. Reed, WD
Decision Date | 13 October 1981 |
Docket Number | No. WD,WD |
Citation | 629 S.W.2d 424 |
Parties | STATE of Missouri, Respondent, v. Norman Lee REED, Appellant. 31704. |
Court | Missouri Court of Appeals |
Peter N. Sterling, Acting Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Thomas G. Auffenberg, Asst. Atty. Gen., Jefferson City, for respondent.
Before KENNEDY, P. J., and SHANGLER and SOMERVILLE, JJ.
An information was filed in the Circuit Court of Randolph County charging defendant with kidnapping Larry Calvin Hughes, Jr., on March 9, 1978, in violation of Section 559.240, RSMo 1969. Defendant was found guilty by a Saline County jury on change of venue and his punishment was fixed at ten years confinement in the Missouri Department of Corrections. Judgment entered and sentence imposed accordingly.
The sufficiency of the evidence to support the guilty verdict stands unchallenged. Charges of error on appeal, two in number, are laid at the doorstep of the prosecuting attorney by reason of a certain question posed by him to the jury panel on voir dire and certain statements made by him to the jury during closing argument.
The record on appeal, addressed in terms of the points of error raised, reveals that the state was forced to rely mainly upon circumstantial evidence to prove that defendant, acting in concert with his brother, forcibly seized Larry Calvin Hughes, Jr., from his place of employment in Moberly, Missouri, on March 9, 1978, with intent to cause Larry Calvin Hughes, Jr., to be secretly confined within this state against his will. Additional evidence relied upon by the state, also circumstantial in part, disclosed that the victim was placed on the rear floor of a station wagon under a folddown seat and taken from Randolph County into Howard County to an area known as "Blue Bluff". There, the victim was ejected from the station wagon and a shot was heard. A snow covered corpse found in the "Blue Bluff" area of Howard County, on March 10, 1978, was identified as the body of Larry Calvin Hughes, Jr. The record also contained evidence that the victim was seized and taken to the "Blue Bluff" area by defendant and his brother for the purpose of heaping revenge upon the victim because he was dating a girl friend of defendant's brother.
The voir dire question forming the crux of defendant's first point arose as follows: Defense counsel's objection to the preceding question was overruled by the trial court. Defendant casts his first point in terms of the above question extracting a commitment from the veniremen "to be satisfied" with all circumstantial evidence offered by the state.
Integrity of the right of trial by jury, in no small measure, depends upon the composite fairness and impartiality of the individual jurors finally selected to try a particular case. Whether an individual juror is fair and impartial, or biased and prejudiced, turns, on final analysis, upon an individual juror's state of mind. Certain carefully composed questions propounded to members of the jury panel on voir dire has evolved as the most practical method for probing the minds of prospective jurors to ascertain those who are fair and impartial and those who are biased and prejudiced. Ultimately, any objective basis for determining a juror's state of mind must turn on the verity of the responsive answers. In order to achieve selection of a fair and impartial jury, it stands to reason that questions on voir dire calculated to expose prejudice should be liberally permitted while those calculated to create prejudice should be vigorously denied.
Control of the nature and scope of questions on voir dire examination of veniremen is necessarily lodged in the discretion of the trial court "and an appellate court will differ or interfere with the exercise of that discretion only when the record shows a manifest abuse of discretion and a real probability of injury to the complaining party." State v. Scott, 515 S.W.2d 524, 527 (Mo.1974). This is an abstract endeavor which, in the context of this case, calls into play a standard limitation expressed in State v. Tally, 22 S.W.2d 787, 788 (Mo.1929):
Cases since State v. Tally, supra, disclose that it has been broadly construed as holding that questions to prospective jurors which ask them to speculate and commit themselves to a course of action depending upon certain contingencies which may subsequently occur or arise during trial are impermissible as they denigrate the solemn duty of jurors to follow the law as laid down in the instructions, and evaluate the evidence in the triad of said instructions, the arguments of counsel and the reasoning of fellow jurors. The standard limitation enunciated in State v. Tally, supra, has been applied in a diversity of situations as typified by the following pattern of cases. In State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046 (1935), it was held improper and constituted reversible error to ask prospective jurors whether or not they "would" assess the death penalty if the evidence warranted it. In State v. Katz Drug Company, 352 S.W.2d 678 (Mo. banc 1962), it was held improper and constituted reversible error to ask prospective jurors whether they would "convict" if certain facts were proven and the court instructed that such was a violation of the law. In State v. Kiner, 441 S.W.2d 720 (Mo.1969), it was held improper and constituted reversible error to ask prospective jurors whether they "would not vote to find ... (defendant) guilty" if the state proved the "guilt of defendant" beyond "a reasonable doubt". In State v. Thursby, 245 S.W.2d 859 (Mo.1952), the state's interrogation of veniremen concerning their views of the credence and weight to be given the respective testimony of a prostitute and of a procurer was characterized as "objectionable because it tended to commit the jurors to an opinion, in advance of the trial, upon the credibility of the witnesses and weight of their testimony." Id. 863. The Thursby court concluded, however, that the condemned line of interrogation did not rise to the level of prejudicial error because defense counsel had engaged in the same line of inquiry upon voir dire. Questions calling for prospective jurors to precommit themselves to certain courses of action depending upon contingencies which might subsequently occur or arise were quintessential to the holdings in the cases heretofore cited.
In this case, proof of the seizure of Larry Calvin Hughes, Jr., the victim of the kidnapping, rested upon circumstantial evidence. The controversial question involved here, "Is there anybody here who will demand an eyewitness, so to speak?", was asked in the context of circumstantial evidence. Neither a negative nor an affirmative answer thereto could reasonably be construed as committing a prospective juror to a particular course of action, i.e., to convict or acquit, or to give credibility and weight to the testimony of any particular witness. Rather than attempting to extract a commitment from prospective jurors to a future course of action dependent upon certain contingencies that might subsequently occur or arise, a realistic analysis of the question as posed demonstrates that it was a legitimate attempt to discover whether any venireman harbored any preconceived doubts as to the efficacy of circumstantial evidence. See State v. Neal, 591 S.W.2d 178 (Mo.App.1979); and State v. Roseman, 583 S.W.2d 232 (Mo.App.1979).
The following remarks of the prosecuting attorney during closing argument form the crux of defendant's second point: Defense counsel timely objected on the ground that "(t)here is no evidence of any murder charge ... (i)t's beyond the scope...
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