State v. Russell
| Citation | 656 S.W.3d 265 |
| Decision Date | 13 December 2022 |
| Docket Number | WD 84644 |
| Parties | STATE of Missouri, Respondent, v. Cedrick Oliver RUSSELL, Appellant. |
| Court | Court of Appeal of Missouri (US) |
Gregory L. Barnes, Jefferson City, MO for Respondent.
Jeannie Marie Willibey, Kansas City, MO for Appellant.
Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge, Anthony Rex Gabbert, Judge
Cedrick Russell appeals his conviction following jury trial in the Jackson County Circuit Court for first degree murder, first degree sodomy, second degree burglary, stealing, first degree tampering, and tampering with physical evidence. He argues in six points on appeal that the trial court erred in failing to strike a jury member, excluding the public from voir dire, failing to grant a mistrial, submitting the stealing count, failing to grant an acquittal, and in the sentence given for sodomy. The judgment is affirmed as corrected.
On July 28, 2017, Cedrick Russell was indicted for first degree murder, first degree sodomy, first degree burglary, felony stealing, first degree tampering with a motor vehicle, and tampering with physical evidence. In the light most favorable to the verdict, State v. Phillips , 633 S.W.3d 891, 894 (Mo. App. W.D. 2021), the following evidence was presented at trial in March 2021:
Russell lived next door to the victim ("Victim"1 ). On May 31, 2017, sometime after midnight, he entered the Victim's kitchen window, leaving his fingerprints on the exterior side. Russell attacked and sodomized Victim. He then strangled her to death. Russell's DNA was found in sperm left on wadded up paper towels found next to Victim's bed and in a rectal swab taken from Victim.
Russell ransacked Victim's bedroom and stole at least four items of jewelry and Victim's cell phone. His fingerprints were found on a jewelry box in Victim's bedroom. Russell then stole Victim's automobile.
At 3:14 a.m., Russell conducted a map search on his phone for an apartment complex in Raytown, Missouri. Victim's car was eventually found near there. It had vomit on the front fender that was similar to vomit found in Victim's bedroom and bathroom.
On June 2, 2017, Victim's body was found. That same day, Russell used his cell phone to search for a pawn shop. He was subsequently recorded on video pawning Victim's jewelry at that pawn shop.
On June 6, 2017, Russell changed his cell phone number. He drove around various locations in the Kansas City area with Victim's cell phone from May 31 to June 8, 2017. The evidence showed that Russell drove to his girlfriend's address on the morning of the murder with Victim's cell phone. Victim's cell phone was never recovered.
Victim's last cell phone call was with her boyfriend and ended at 12:10 a.m. the morning of her murder. Russell's cell phone came from the area where Victim's car was later found and moved into an area that included the crime scene at 12:15 a.m. the morning of the murder. Victim did not answer a call from her best friend at 1:37 a.m.
Russell did not testify and did not call any witnesses in his defense. The jury found Russell guilty of first-degree murder, first-degree sodomy, second-degree burglary, first-degree tampering, misdemeanor stealing, and tampering with physical evidence. He was sentenced on June 24, 2021 as a prior felony offender to life imprisonment without parole for murder, life imprisonment for sodomy, seven years for burglary, seven years for tampering with Victim's automobile, four years for tampering with physical evidence, and one year for misdemeanor stealing. The sentences for the latter four crimes were ordered to run concurrently with one another but consecutively to the sentences for murder and sodomy which were ordered to run consecutively to one another.
The appeal follows.
In his first point on appeal, Russell argues the trial court abused its discretion in failing to strike a juror for cause. He states that Juror 14 was not qualified because her ability to be impartial was questionable. Russell maintains that Juror 14 never unequivocally stated that she would not draw any inference of guilt from the defendant's failure to testify.
"A trial court has wide discretion in determining the qualifications of members of the venire, and on appeal the court will not disturb the trial court's ruling on a challenge for cause absent a clear abuse of discretion and a real probability of injury to the complaining party." State v. Savage , 609 S.W.3d 71, 83 (Mo. App. W.D. 2020) (internal quotation marks omitted). "Because the trial court is in a better position to determine a venireman's ability to impartially follow the law, doubts as to the trial court's findings will be resolved in its favor." Id. (internal quotation marks omitted). "[D]enial by a trial court of a legitimate request by an accused to excuse for cause a partial or prejudiced venireperson constitutes reversible error." Id. (internal quotation marks omitted). "A legitimate challenge is made where it clearly appears from the evidence that the venireperson is prejudiced and, as a result, cannot be fair and impartial." Id. (internal quotation marks omitted).
"Whether a prospective juror is prejudiced and cannot be fair and impartial must be determined on the basis of the entire examination and not just a single response." Id. (internal quotation marks omitted). "[W]hen the examination leaves uncertainty about the venireperson's ability to be fair and impartial, the trial court has a duty to make an independent inquiry regarding fitness for jury service." Id. (internal quotation marks omitted). "The critical question on a challenge for cause is whether the venireperson unequivocally indicated an ability to evaluate the evidence fairly and impartially." Id. (internal quotation marks omitted). "Where a venireperson's answer suggests a possibility of bias, that person is not qualified to serve as a juror unless, upon further questioning, he or she is rehabilitated by giving unequivocal assurances of impartiality." Id. at 84 (internal quotation marks omitted). "A venireperson who expresses a bias against a defendant for exercising his Fifth Amendment right not to testify is not considered fair and impartial, making him subject to being struck for cause ... unless the potential juror is thereafter rehabilitated." Id. (internal quotation marks and citations omitted). The "rehabilitation of a prospective juror must be responsive to the indication of partiality and provide a clear, unequivocal assurance that the juror would not be partial." Id. (internal quotation marks omitted).
The trial court limited voir dire to one hour and twenty minutes for each side. Defense counsel argued that this time was not sufficient given the serious nature of the charges. During voir dire, defense counsel asked the panel questions regarding the defendant's right not to testify and whether any member would have difficulty following the law that no presumption of guilt may be drawn from a defendant's failure to testify. No venireperson responded. After questioning, the panel was sent home and told that those chosen for the jury would later be notified.
The next morning, the trial court informed the parties that when Juror 14 was notified she would serve on the jury, she said she wished defense counsel would have asked an additional question at the end. She said that as she thought about it, she got more concerned about the defendant not taking the stand. Juror 14 was brought into the courtroom and the following occurred:
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