State v. Taylor, 52568

• Citation: 742 S.W.2d 625
• Decision Date: 05 January 1988
• Docket Number: No. 52568,52568
• Parties: STATE of Missouri, Plaintiff-Respondent, v. George E. TAYLOR, Jr., Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 625

742 S.W.2d 625

STATE of Missouri, Plaintiff-Respondent, v. George E. TAYLOR, Jr., Defendant-Appellant.

No. 52568.

Missouri Court of Appeals,

Eastern District,

Division Five.

Jan. 5, 1988.

Marsha Brady, Almond, Williams & Brady, P.C., Hillsboro, for defendant-appellant.

William L. Webster, Atty. Gen., John M. Morris, L. Timothy Wilson, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

CARL R. GAERTNER, Judge.

Appellant, George E. Taylor, was convicted after a jury trial of first degree robbery and armed criminal action. He was sentenced as a persistent offender to two concurrent terms of twenty years. Appellant challenges the conviction claiming that the trial court erred: (1) by prohibiting his defense counsel from asking during voir dire whether any of the veniremen would be prejudiced against the defendant because he lived with and was supported by a prostitute; (2) by allowing the state to read into evidence the preliminary hearing testimony of an unavailable witness since the state had not exercised due diligence in attempting to locate that witness; and (3) by allowing the state to improperly rehabilitate a witness by reading his police statement into evidence. We affirm.

The state's evidence was as follows: On April 30, 1985, appellant and his girlfriend, Barbara Randall, drove to a Derby gas station in Arnold, Missouri. Ms. Randall waited in the car while appellant approached the gas station armed with a handgun. The station was closed for the evening, and the attendant, Alan Baker, was locked inside counting money. Mr. Baker's wife and children were waiting for him in a car outside the station.

Appellant approached the Baker's car from behind and ordered Mrs. Baker and the children out of the car. He then instructed Mr. Baker to open the gas station door and ordered everyone inside. Appellant locked the Baker family in a storage closet, took the money, and fled with Ms. Randall. Appellant and Randall drove to the home of Dwayne McIntyre where they counted the money.

Five months later, Ms. Randall implicated appellant in the robbery. Appellant was subsequently charged with first degree robbery and armed criminal action.

In a pre-trial conference in chambers the trial court was advised that for some months before and after the robbery, appellant lived with and was supported by a state's witness, Barbara Randall, a prostitute. Appellant's counsel advanced the theory that Randall informed the police of appellant's complicity in the robbery out of spite after they separated. Because Randall had never been convicted of prostitution, the trial court admonished counsel that no mention of her occupation was to be made unless and until the relevance of her prostitution was established by, for example, evidence that a dispute over the division of the profits from her activities precipitated her giving information to the police. ¹ Nevertheless counsel requested the court to allow him to examine veniremen with the following questions:

(1) There will be testimony that the Defendant lived with Barbara Randall, one of the witnesses, and during that time she made her living as a prostitute. Would the fact that the Defendant lived with a woman while she was engaged in prostitution and allowed himself to benefit from the money she earned, would that fact by itself make you feel he probably committed the robbery he is charged with?

(2) There will be testimony that the Defendant shared in the profits of the "Touch of Class Escort Services," a prostitution business operated by the witness Barbara Randall. Would that fact in itself make you feel he probably committed the robbery he is accused of?

The trial court sustained the state's objections to these questions on the ground that they were irrelevant and prejudicial.

In his first point, appellant argues that he was entitled to a presumption of innocence, and that by denying him the right to examine the veniremen for bias and prejudice with the aforesaid questions, the trial court deprived him of his right to a fair trial. Appellant correctly contends that one purpose of voir dire is to expose juror bias or prejudice which could form the basis of a challenge for cause or be useful in utilizing peremptory challenges. State v. Smith, 649 S.W.2d 417 (Mo. banc 1983). However, both the defendant and the state are entitled to selection of a fair and impartial jury. State v. Lumsden, 589 S.W.2d 226, 229 (Mo. banc 1979). "[While] questions on voir dire [which are] calculated to expose bias or prejudice should be liberally permitted, ... questions calculated to create prejudice should be vigorously denied." State v. Reed, 629 S.W.2d 424, 426 (Mo.App.1981). Controversy often arises when proposed jury questions have a "dual or ambivalent" character in that "they may, arguably, tend to expose or create prejudice depending on the subjective viewpoint." State v. Abbott, 654 S.W.2d 260, 275 (Mo.App.1983). The trial court, therefore, is given broad discretion in controlling voir dire especially concerning the nature, extent and propriety of questions addressed to veniremen. Id. at 274; State v. Norton, 681 S.W.2d 497 (Mo.App.1984).

Any relationship between the acceptance of the earnings of a prostitute and the commission of an armed robbery is, to say the least, tenuous. We believe the trial court accurately viewed the proposed questions as a thinly veiled attempt to impeach a state's witness by reason of immoral conduct and to pre-dispose the jurors to discredit her testimony. The phrasing of voir dire questions in a manner which pre-conditions the jurors' minds to react even subconsciously in a particular way to anticipated evidence is an abuse of counsel's privilege to examine prospective jurors. See State v. Garrett, 627 S.W.2d 635, 642 (Mo. banc 1982). We may not disturb the trial court's exercise of discretionary control over voir dire examination in the absence of manifest abuse and a real probability of injury. State v. Betts, 646 S.W.2d 94, 98 (Mo. banc 1983); State v. Norton, 681 S.W.2d 497, 499 (Mo.App.1984). In light of the dubious relevance of the proposed questions, we find no such abuse or probability of injury here. Point denied.

Appellant next contends that the state failed to exercise due diligence in locating Alan Baker for trial, and therefore, the trial court erred in allowing the state to read Mr. Baker's preliminary hearing testimony into evidence. Appellant argues that since Baker was the only non-biased witness who identified him as the perpetrator, his testimony could have been the deciding factor in appellant's conviction.

Although the Sixth Amendment grants the defendant the right to confront all witnesses against him, an exception exists when a defendant had the opportunity to cross-examine an "unavailable" witness at a previous judicial proceeding against the defendant in the same matter. State v. Ivicsics, 604 S.W.2d 773, 779 (Mo.App.1980). "To establish unavailability the state must show an exercise of due diligence and a good faith effort to secure the attendance of the witness at trial." Id. The "reasonableness of the prosecutor's efforts depends on the circumstances of the particular case." State v. Lindsey, 709 S.W.2d 499, 505 (Mo.App.1986).

In attempting to locate Mr. Baker, the prosecutor first attempted to...