State v. Salazar

• Decision Date: 24 December 2013
• Docket Number: No. SD 32032.,SD 32032.
• Citation: 414 S.W.3d 606
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Eddie A. SALAZAR, Defendant–Appellant.
• Court: Missouri Court of Appeals

414 S.W.3d 606

STATE of Missouri, Plaintiff–Respondent,

v.Eddie A. SALAZAR, Defendant–Appellant.

No. SD 32032.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 2, 2013.

Motion for Rehearing and/or Transfer to the Supreme Court Denied Oct. 24, 2013.

Application for Transfer Denied Dec. 24, 2013.

Craig A. Johnston, Columbia, MO, Attorney for Appellant.

Karen L. Kramer, Jefferson City, MO, Attorney for Respondent.

DON E. BURRELL, J.

Eddie A. Salazar (“Defendant”) was found guilty after a jury trial of second-degree murder for killing his infant son (“Child”). After denying Defendant's “Motion for Judgment of Acquittal or in the Alternative for a New Trial” and subsequent “Supplemental Motion for Judgment of Acquittal or in the Alternative for a New Trial” (collectively, “the new trial motion”), the trial court sentenced Defendant to life in prison. See sections 558.011 and 565.021. ¹

In three points relied on, Defendant contends: (1) he was denied his right to a public trial when the trial court “essentially exclude[ed] the public from [ voir dire ]” by ordering “venire panels of such sizes to fill every available seat in the courtroom”; (2) the trial court abused its discretion in failing to strike a juror for cause who “did not unequivocally indicate an ability to evaluate the evidence fairly and impartially” and “her answers suggested a bias because she was a teacher and this case involved the death of a child”; and (3) the trial court abused its discretion “in overruling [Defendant]'s objection and request for a mistrial after the prosecutor asked its expert witness, ‘I'm going to ask you to assume that [Defendant] has testified or has given testimony’ ” because it violated Defendant's right not to incriminate himself, “especially” when the State made two other references during the proceedings to hearing or receiving testimony from Defendant.

Finding no reversible error, we affirm.

Background ²

On the evening of February 4, 2010, Child was in Defendant's care. Shortly after 11:00 p.m., an officer made contact with Defendant at a Carthage residence in response to a 9–1–1 call in which Defendant stated that two men had entered his home and had taken Child. Defendant subsequently gave differing accounts of the event—including that he had found Child dead in his crib—but he eventually told law enforcement that he had shaken Child because he was frustrated that Child would not stop crying, and Child slipped from his hands, striking his head on the tile floor. Defendant admitted throwing Child's body into a river, and Child's body was eventually recovered from the river.

Recorded statements from Defendant were admitted into evidence as State's Exhibits 3, 6, 8A, and 9. The jury also heard a recording of Defendant's 9–1–1 call, admitted as State's Exhibit 2.³ The pathologist who performed the autopsy on Child testified that the cause of death was “blunt head trauma” and that Child had three fractures to his skull, accompanied by “swelling of the brain and bleeding inside of the head as well.”

After the jury rendered its guilty verdict, Defendant timely filed the new trial motion. The new trial motion included the same issues raised now on appeal except that in addressing the public trial issue Defendant relied only on provisions of the United States and Missouri constitutions; he did not assert any statutory basis for his objection. The trial court overruled the new trial motion and sentenced Defendant as noted above. This appeal timely followed.

Analysis

Point I—Public Access to Jury Selection

Defendant's first point maintains the trial court “essentially exclud [ed] the public from [ voir dire ]” by “the filling of all seats in the courtroom” with venirepersons when it “was not necessary” and “the trial court failed in its duty to consider reasonable alternatives, such as bringing in venirepanels of smaller sizes, which would allow the public, including the victim's and [Defendant]'s relatives, to attend [ voir dire ].” Defendant contends that the trial court's actions violated his rights under the Sixth and Fourteenth Amendments of the United States Constitution, article I, section 18(a) of the Missouri Constitution, and section 476.170.⁴

We address only Defendant's constitutional arguments because he failed to offer an objection at trial based upon the statute. See State v. Webb, 725 S.W.2d 901, 904 (Mo.App.E.D.1987) (“The assignment of error in a motion for new trial and in the points relied upon submitted to this court must be based on objections made and reasons assigned at the time the alleged error occurs”). Defendant also failed to offer any case law or argument concerning the application of the statute to the facts of his case. See State v. Edwards, 280 S.W.3d 184, 190 (Mo.App.E.D.2009) (the contention presented in the point relied on must be developed in the supporting argument).

The following facts are relevant to this point. At a pretrial hearing in January 2012, the trial court discussed as follows its plan for jury selection.

[The Trial Court]: Okay. As—so we think that originally what the Court was planning on doing was seating—how many did you tell me, [addressing a court staff member], 60 jurors at first, and have another 60 that could come in that afternoon, if we didn't get—couldn't seat the amount we needed out of the first 60. And basically, that the first day would probably end up being voir dire most of the day. If we got in to openings, and basically start the second day with the first witness.

At another pretrial hearing about a week before the March 2012 trial, defense counsel objected as follows to the anticipated voir dire process.

[Defense Counsel]: Judge, I am concerned about the way I understand we're going to conduct the voir dire with, I guess, 56 jurors, potential jurors brought into the courtroom. If we do that, that is going to take up every bit of the seating in the courtroom. I understand there is only limited seating in the courtroom, but on the other hand [Defendant] does have a right under the Sixth and the Fourteenth Amendments to the U.S. Constitution, Article I, Section 18A of the Missouri Constitution to a public trial. I'm sure there will probably be family members of [Defendant], and perhaps other people that would like to attend the trial.

And I would ask for some accommodations, so it is possible to have a public presence during the entire trial including voir dire. Otherwise, I think he would be denied his right to a public trial.

[The Trial Court]: They can attend the trial, but there is not going to be room in here during the voir dire and there is never room in here for the voir dire. And so I don't know of any accommodations that we can make. So that request is going to be denied.

On the first day of trial, before a venire panel was brought in, defense counsel again “object[ed] to the exclusion of the public during voir dire on the basis of the [Six]th and [Fourteen]th amendments to the United States Constitution Article I, Section 8[sic] and according to the Missouri State Constitution and the First Amendment to the United States Constitution.” The trial court observed that 60 to 63 people had been summoned, and because the courtroom normally accommodated “43 individuals[,]” some chairs were replaced by a bench which permitted the courtroom to seat 56 people. The trial court overruled the objection and stated that “there is no room for anybody else in this courtroom and because of that during voir dire anybody else will be excluded from the courtroom.” The trial court responded, “Yes” when defense counsel stated: “Motion [to allow room for members of the public to attend voir dire ] is overruled and continuing, Judge?”

“[T]he Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.” Presley, 558 U.S. at 213, 130 S.Ct. 721. “[W]hether a defendant's right to a public trial has been violated is a question of law subject to de novo review.” State v. Williams, 328 S.W.3d 366, 369 (Mo.App.W.D.2010). Generally, “the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.” Waller v. Georgia, 467 U.S. 39, 49, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The State agrees that “[t]he denial of the right to a public trial is structural error that requires no showing of prejudice[,]” citing Crawford v. Minnesota, 498 F.3d 851, 854 (8th Cir.2007) (citing Waller, 467 U.S. at 49–50, 104 S.Ct. 2210). Further, the defendant has no duty to suggest alternatives to closure.

The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from [Supreme] Court precedents but also from the premise that “[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system.”

Presley, 558 U.S. at 214, 130 S.Ct. 721 (quoting Press–Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U.S. 501, 505, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)).

Exceptions to the defendant's right to a public voir dire of potential jurors do arise. As the Supreme Court explained in Presley, “ ‘the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information’ ” could present such exceptional circumstances. Id. at 213, 130 S.Ct. 721 (quoting Waller, 467 U.S. at 45, 104 S.Ct. 2210). Borrowing from Waller, the Supreme Court in Presley identified four steps to ensure the proper balance between the competing interests: 1) an “overriding interest that is likely to be prejudiced” by a public proceeding must be stated; 2) “the closure must be no broader than necessary to protect that interest”; 3) “the trial court must consider reasonable alternatives to closing the proceeding”; and 4) “it must make findings adequate to support the closure.” 558 U.S. at 214, 130 S.Ct. 721 (quoting Waller, ...