State v. Russ, 39075

• Decision Date: 26 September 1978
• Docket Number: No. 39075,39075
• Citation: 574 S.W.2d 5
• Parties: STATE of Missouri, Respondent, v. Leon RUSS, Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 5

574 S.W.2d 5

STATE of Missouri, Respondent, v. Leon RUSS, Appellant.

No. 39075.

Missouri Court of Appeals, St. Louis District, Division One.

Sept. 26, 1978.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 17, 1978.

Devereaux & Stokes, Michael D. Stokes, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Gerald M. Sill, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for respondent.

CLEMENS, Presiding Judge.

Defendant has appealed his conviction for carrying a concealed weapon. (Section 564.610, RSMo.1969). He does not challenge the sufficiency of the evidence.

Defendant first contends the trial court erred in failing to declare a mistrial when the prosecutor remarked at the close of the state's case, "as to the C.C.W. (carrying concealed weapon), the state rests." Defendant contends this statement implied other criminal matters were pending against defendant. His objection to the statement was sustained and at his request the jury was instructed to disregard it and the prosecutor was admonished. ¹ The court denied defendant's motion for a mistrial and defendant now contends this was error. We disagree.

In the comparable case of State v. Harris, 547 S.W.2d 473(1) (Mo.1977) the court held a more harmful remark ², which the trial court instructed the jury to disregard, was insufficient to warrant a holding the trial court had abused its discretion in denying a mistrial. So it is here.

Defendant also contends the trial court should have granted his challenge for cause of a juror who had served 27 years as a police officer before retirement. A former affiliation with law enforcement, standing alone, is not a ground for challenge for cause. State v. Wraggs, 512 S.W.2d 257(2) (Mo.App.1974). Here, on voir dire the juror declared he would give no greater weight to the testimony of police officers and would not be prejudiced against defendant. Nor did the juror know any of the four police officers who were the state's sole witnesses.

Defendant further argues that the juror's answers, "I don't think so, no," were equivocal and required further investigation by the trial court. We find no need for more intensive questioning simply to obtain an unqualified "no." We defer to the opportunity of the trial court to evaluate the juror's demeanor and its conclusion the juror conscientiously considered the questions asked of him and could serve as a disinterested juror. We find no abuse of discretion in the trial court's ruling. See also State v. Lewis, 526 S.W.2d 49(3) (Mo.App.1975), and State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642(17) (1937).

Defendant relies on State v. Butts, 349 Mo. 213, 159 S.W.2d 790(3-6) (1942), which we find distinguishable. There, the challenged juror was a member of the Kansas City police force. The court held he should have been excluded because his superior, the chief of police, and several fellow officers would testify. Since the juror challenged here was retired he would not be exposed to the influence of the police department and the rationale of the Butts case does not apply.

Judgment affirmed.

SMITH, J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge, dissenting.

I respectfully dissent from the majority's conclusion that the trial court properly denied the defendant's challenge for cause of a juror who had served twenty-seven years as a police officer before retirement. While I agree with the majority that, in Missouri, a former affiliation with law enforcement, standing alone, is not a ground for challenge for cause, (State v. Cashman, 485 S.W.2d 431, 434 (Mo.1972); State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642, 647 (1937); State v. Wraggs, 512 S.W.2d 257, 258 (Mo.App.1974)), I do not believe this case represents merely a "former affiliation with law enforcement." There are two extenuating facts which render this situation more complex.

First, when asked whether he would give greater weight to the testimony of the police officers who would be witnesses, the juror responded, "I don't Think so, no." (emphasis added). When asked if he might be biased because he knew the procedures surrounding a charge of carrying a concealed weapon (CCW), the juror responded, "I don't Think so, no." (emphasis added).

It is settled in Missouri that, once a juror gives equivocal answers to questions regarding possible bias, the trial court has an obligation to inquire further. State v. Carter, 544 S.W.2d 334, 337 (Mo.App.1976). This is necessary to preserve the impartiality of jurors as well as the outward appearance of impartiality, which is essential to maintaining the confidence of the community in the jury system. State v. Holliman, 529 S.W.2d 932, 942 (Mo.App.1975). Unlike the majority, I believe the answers given by the juror indicated some hesitancy, and, given the small amount of time and trouble it would take to inquire further into the juror's possible bias, I believe the court should have attempted some interrogation.

The second and more serious problem with allowing this juror to remain on the panel originates from the fact he has been a policeman for twenty-seven years. While I do not subscribe to the...