State v. Scott, 54440
| Decision Date | 17 July 1972 |
| Docket Number | No. 54440,54440 |
| Parties | STATE of Missouri, Respondent, v. Louis Andrew SCOTT, Appellant. |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
Marvin Q. Silver, Murray Stone, St. Louis, for appellant.
This is an appeal from a conviction of murder, first degree, for which the jury assessed punishment at death. Sections 559.010 and 559.030. 1
The state's evidence is sufficient to support a finding by the jury that during the afternoon of April 28, 1967, the defendant and two companions, one armed with a sawed-off shotgun, robbed a Liberty Loan Company office in St. Louis and during the course of the robbery James Nolkemper, an employee of the loan company, was, at the direction of defendant, shot and killed by the robber with the shotgun. Defendant did not testify and offered no evidence.
Defendant contends that the trial court limited the scope of his voir dire examination as a result of which he was denied his Fifth Amendment 2 right against compulsory self-incrimination and his Sixth Amendment 3 right to trial by an impartial jury in that two veniremen, challenged by him for cause, were left on the panel although they had stated during voir dire examination that if he did not testify they would 'hold this against him.' The state, asserting that the matter of determination of the qualifications of veniremen is within the discretion of the trial judge, contends that he exercised sound judicial discretion in overruling these challenges for cause. We conclude that, considering the facts and circumstances of this case, the court should have sustained the challenge to one of the veniremen (Mr. Cunningham) and that defendant should have a new trial for that reason.
We said in State v. DeClue, Mo., 400 S.W.2d 50, l.c. 57, that '(m)any cases recognize that it rests within the sound judicial discretion of the trial judge to detrmine the qualifications of a venireman and that his decision thereon should not be disturbed unless there is a clear abuse of discretion.
This does not mean, however, that this court should not and does not review the facts of each particular case, when such question is raised, to determine whether or not there was an abuse of discretion.' See also: State v. Spidle, Mo., 413 S.W.2d 509; State v. Crockett, Mo., 419 S.W.2d 22, 26.
We quote the pertinent part of the voir dire examination of prospective jurors:
'MR. STONE (counsel for defendant): * * * The defendant, Louis Scott, has a right to tkae the stand and he also has the right not to take the stand, and this is right whether or not. If Mr. Scott would decide not to take the witness stand, would you 'hold this against him' for any reason, Mr. Erbs? A No.
'Q Miss Theisen? A I would.
'Q Even if the Court instructs you--
'MR. FREDERICKS (counsel for the state): One moment.
'(The following proceedings took place at the bench without the hearing of the jury panel:
(End of proceedings at the Bench.)
'MR. STONE: (continuing) Mr. Brookins, if Mr. Scott were not to take the stand, would you hold this against him?
'A No.
'Q Mr. Baker?
'A It is hard to answer, but I think I would hold it against him. In my opinion, if he were innocent he would be glad to testify.
'(The following proceedings took place at the bench without the hearing of the jury panel:
(End of proceedings at the Bench.)
'A I believe I would.
'Q Mr. Jacobs? A Yes, Sir.
'Q Mr. Beers? A Yes, Sir.
'Q Mr. Dreyer? A Yes, Sir.
'Q Mr. Van Fleet? A Yes, Sir.
'Q Mr. Brown? A Yes, sir.
'Q Mr. Steffens? A. Yes.
'Q Mrs. Thomure? A Yes, Sir.
'Q Mr. Sullens? A Yes.
'Q Mr. Smith? A Yes.
'Q Mr. Purk? A Yes, Sir.
'Q Mr. Younger? A Yes, Sir.
'Are you still referring to the same question if he would object to his not taking the stand?
'(The following proceedings took place at the bench without the hearing of the jury panel:
'I will instruct this jury the defendant is not required to take the stand.
(End of proceedings at the Bench.)
'Now, the question I would like to ask is this; whether the defendant takes the stand or not, what decision he makes at the end of this trial is his business, would you still require the State to carry the burden of proof in judging his guilt? Would you still require the State of Missouri to carry the burden of proof, as is always required?
'Mr. Erbs?
'A Yes.
'Q (Mr. Fredericks) Miss Theisen? A Yes?
'Q Mr. Brookins? A Yes.
'Q Mr. Baker? A Yes.
'Q Mr. Cunningham? A Yes.
'MR. FREDERICKS: Does anybody have a question along that line?
'Thank you, Your Honor.
'A I don't really understand it, but if he would not testify it--
'Q (Mr. Stone) Is there anybody else who did not understand Mr. Fredericks' question? Miss Theisen?
'A I know what he means but I don't know how to answer you.
'(The following proceedings took place at the bench without the hearing of the jury panel:
'THE COURT: I can see the way the question is being asked we are going to have a lot of trouble, we will never get a panel, and it has been clarified by Mr. Fredericks.
'What do you want to do with this woman?
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