State v. Stillings, s. 17728

• Decision Date: 18 July 1994
• Docket Number: 18818,Nos. 17728,s. 17728
• Citation: 882 S.W.2d 696
• Parties: STATE of Missouri, Respondent, v. Stanley STILLINGS, Appellant. Stanley STILLINGS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 696

882 S.W.2d 696

STATE of Missouri, Respondent, v. Stanley STILLINGS, Appellant.

Stanley STILLINGS, Appellant, v. STATE of Missouri, Respondent.

Nos. 17728, 18818.

Missouri Court of Appeals,

Southern District,

Division Two.

July 18, 1994.

Motion for Rehearing and Transfer to Supreme Court Denied Aug. 9, 1994.

Donald R. Cooley, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John R. Watson, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

Appellant, Stanley Stillings, was tried by jury for murder in the second degree, § 565.021, ¹ and armed criminal action, § 571.015. The jury found him guilty of voluntary manslaughter, § 565.023, and armed criminal action, assessing sentences of 15 years' imprisonment for each.

The trial court entered judgment per the verdicts, ordering the sentences to run consecutively. Appellant brings appeal 17728 from that judgment.

While appeal 17728 was pending, Appellant commenced an action per Rule 29.15 ² to vacate the judgment. After an evidentiary hearing, the motion court entered an order denying relief. Appellant brings appeal 18818 from that order.

We consolidated the appeals, Rule 29.15(l ), but address them separately in this opinion.

Appeal 17728

Appellant's sole point relied on avers he was denied a trial by an impartial jury "due to the intentional withholding of opinions of bias toward [Appellant] by jurors who were picked to try the case and due further to misconduct by jurors during deliberation."

Although Appellant does not challenge the sufficiency of the evidence to support the verdicts, a brief account of it is helpful in addressing the claim of error. Viewing the evidence and all of its reasonable inferences in the light most favorable to the verdicts, and disregarding any evidence or inferences to the contrary, State v. Morovitz, 867 S.W.2d 506, 508 (Mo. banc 1993), the evidence establishes the following facts.

Around 2:00 a.m., June 30, 1990, several people were on the "city square" in Ava. Two fights, each involving two antagonists, occurred. According to Appellant and his witness, Randy Curtis, Appellant attempted to break up one of the fights.

Two State's witnesses testified that Kevin Vaverka swung at Appellant, but missed. Appellant retreated, pursued by Vaverka. Vaverka attempted to kick Appellant, then ceased the pursuit.

Appellant went to his car. State's witness Herschel Graham testified Appellant reached into the car through a back window, pulled something out, then put it back. Shortly thereafter, according to Graham, Vaverka started toward Appellant's car.

Graham and another State's witness, Jimmy Lee Thornsberry, saw Appellant remove a shotgun from his car. Thornsberry testified, "I hollered and told Kevin he had a gun out."

As Vaverka approached, Appellant took a few steps backward. Thornsberry and another State's witness, Carla Walker, testified Vaverka reached for the gun. It discharged, inflicting a wound to Vaverka's head. Vaverka fell, face down.

Ava police officer Gary Koop arrived at the scene at 2:39 a.m. He observed Vaverka lying in the street. Vaverka was dead.

At trial, Appellant maintained he was fearful Vaverka was going to attack him. Appellant's testimony:

"... he was reaching for me with ... at least ... one hand, I'm not positive if both of them but at least one hand.

Q And what happened then?

A Evidently I fired the gun, I do not remember what happened...."

In final argument, Appellant's lawyer insisted Appellant should be acquitted because he acted in self-defense.

Appellant's motion for new trial averred that a member of the jury, Vicki Yeary, was prejudiced against him and failed to disclose it during voir dire. Specifically, the motion pled that before trial, Yeary said if she were selected for the jury, she would vote to convict Appellant because he was involved in "dealing drugs" in the Ava community. The motion further pled Appellant and his lawyer did not learn of this until after trial.

Attached to the motion was an affidavit of a 19-year-old neighbor of Yeary. According to the affidavit, a member of Yeary's family told the affiant the day before trial that if Yeary were chosen for the jury, she would vote to convict Appellant because of rumors that he was involved in dealing drugs. The affidavit further stated that the affiant did not make that information available to Appellant or his lawyer until after trial.

At the hearing on the motion for new trial, Appellant presented testimony by Joanie Jenkins (not the affiant mentioned in the preceding paragraph). Jenkins testified she was summoned as a potential juror for Appellant's trial, along with Yeary. Jenkins was acquainted with Yeary; they work for the same employer.

Jenkins recounted a conversation with Yeary in the courthouse hallway on the morning of trial, just before voir dire began. Jenkins' testimony:

"Q ... did Mrs. Yeary make any statements to you about the Defendant's trial here or ... whether or not she thought that he was guilty?

A Yes.

Q What did she say to you, as best you can remember?

A She just made the comment, more or less, that she thought that he was guilty, that he had done it and more or less that's all there was to it.

Q Did she make any statements or infer anything to you about the fact that she wondered why we were having a trial or anything?

A Yes.

Q And ... did she say words to that effect?

A Words to that effect, yes.

Q Okay. Do you remember specifically what she said word for word?

A No, I couldn't tell you word for word.

....

Q Was ... it clear to you that she was indicating to you that she thought he was guilty at that point?

A Yes, very clear."

Jenkins was excused from the venire when she revealed she was on the city square at the time of the shooting. Yeary said nothing during voir dire and was chosen as a juror.

Appellant points out that during voir dire, the trial court asked whether any member of the venire had any opinion about the case. Later during voir dire, the prosecutor stated the objective was to find twelve people who could be fair to Appellant and the State. The prosecutor asked whether the venire members understood they must set aside anything they had heard about the case and make their decision solely on the evidence in the courtroom.

Appellant's lawyer requested the venire members to assume they were on the jury and had not heard any evidence, then asked whether he could assume everyone would vote not guilty. Appellant's lawyer also asked whether any member of the venire would be influenced by anything he or she had heard or thought they knew about the case.

Near the end of voir dire, the trial court emphasized the jurors were to base their decision on what they heard under oath at trial.

Appellant maintains Yeary intentionally concealed her bias and prejudice against him by remaining silent during the above questions and admonitions. Appellant cites State v. Coy, 550 S.W.2d 940, 942 (Mo.App.1977), which holds that intentional concealment by a prospective juror of facts on voir dire will give rise to an inference of bias and prejudice, thereby requiring a new trial.

In Coy, the accused pointed out during voir dire that the sheriff would be a prosecution witness, and inquired whether anyone would give a law enforcement officer's testimony greater credibility than that of other witnesses. The accused also asked whether anyone was a "personal friend, business, neighbor" of any prosecution witness, whether anyone was engaged in law enforcement work, and whether anyone knew of anything that would make it difficult for her or him to render a fair and impartial verdict.

After trial in Coy, the accused learned that one juror, Walker, had been called by the sheriff on the night of the crime to tow the accused's vehicle to Walker's garage and impound it. Affidavits obtained from Walker revealed he did not know the reason the car was impounded, and never discussed anything about the case with the sheriff or other officials. However, Walker frequently towed impounded vehicles for law enforcement agencies. The appellate court held this disclosure showed a continuous business relationship which Walker should have revealed during voir dire. Id. at 942. The conviction was reversed and the case was remanded for a new trial.

Appellant also cites State v. Jackson, 412 S.W.2d 428 (Mo.1967). There, however, the Supreme Court of Missouri held the failure of a venire member to recall being the victim of a purse-snatching nine years before the accused's murder trial was not an intentional concealment, hence the trial court did not abuse its discretion in denying a new trial.

In considering Appellant's claim of error we note that during the hearing on the motion for new trial, juror Yeary was not called to testify and no affidavit from her was presented. That is in marked contrast to Coy, 550 S.W.2d 940 (two affidavits from the subject juror), and Jackson, 412 S.W.2d 428 (testimony by the subject juror). The Jackson procedure was followed in two other cases cited by Appellant, State v. Endres, 698 S.W.2d 591 (Mo.App.E.D.1985), and State v. Martin, 755 S.W.2d 337 (Mo.App.E.D.1988), where the subject jurors testified at the hearings on the motions for new trial.

Here, the trial court did not have a response from juror Yeary to Jenkins' testimony. ³

The trial court was not obliged to believe Jenkins' testimony. State v. Duckett, 849 S.W.2d 300, 305 (Mo.App.S.D.1993). The truth or falsity of that testimony was for the trial court to determine in the exercise of sound judicial discretion. Id.; State v. Palmer, 726 S.W.2d 810, 812 (Mo.App.S.D.1987); State v. Galardo, 654 S.W.2d 360, 362 (Mo.App.S.D.1983).

Even if the trial court found Jenkins' testimony credible, all it established was that Jenkins recalled Yeary saying she thought appellant was guilty, "that he had done it," and she wondered why there would be a trial. As the State points out, the venire...