State v. Thompson, KCD

Citation541 S.W.2d 16
Decision Date06 July 1976
Docket NumberNo. KCD,KCD
PartiesSTATE of Missouri, Respondent, v. Edward E. THOMPSON, Appellant. 28200.
CourtCourt of Appeal of Missouri (US)

Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

A jury found defendant guilty of robbery, first degree, (Section 560.120, RSMo 1969) and his punishment was fixed at seven years confinement in the Missouri Department of Corrections.

On appeal defendant claims that he is entitled to a new trial solely by reason of the trial judge's refusal to honor his request to excuse venireman Howard H. Moore for cause, thereby forcing him to expend one of his peremptory challenges to remove said juror.

This state has steadfastly hewed to the proposition that an accused in a criminal case must be afforded a full panel of qualified jurors before he is required to expend his peremptory challenges, and denial by a trial court of a legitimate request by an accused to excuse for cause a partial or prejudiced venireman constitutes reversible error. State v. DeClue, 400 S.W.2d 50 (Mo.1966); State v. Land, 478 S.W.2d 290 (Mo.1972); State v. Lovell, 506 S.W.2d 441 (Mo.banc 1974). This proposition is rooted in the constitutionally guaranteed right of every accused to a 'public trial by an impartial jury', Mo.Const. Art. I, Sec. 18(a), and personifies a dedicated judicial effort to preserve inviolate this constitutionally guaranteed right in the broadest sense. Experience has taught that it is not always possible to objectively demonstrate juror partiality. Not infrequently, juror partiality is subtle, elusive, and highly subjective. When juror partiality is capable of being objectively demonstrated, challenges for cause have been devised as a means for achieving an impartial jury. When juror partiality is sensed, but incapable of being objectively demonstrated, peremptory challenges have been devised as a means for achieving an impartial jury. Together, they serve the ultimate goal of obtaining a jury free from the taint of both objectively demonstrated and subjectively sensed partiality. Purity of the right to be tried by an impartial jury is so zealously guarded that an accused may covet his peremptory challenges and 'spend' them as he alone sees fit. Therefore, if an accused is not presented with a full panel of jurors objectively demonstrated as qualified before he exercises his peremptory challenges, his given number of peremptory challenges is proportionately reduced and his right to 'spend' them as he alone sees fit is accordingly impinged. The strength and integrity of trial by jury in a criminal case lies in the composite impartiality of the jury finally selected to try a particular case, and both are eroded to an unknown extent when even a single or isolated instance of partiality creeps in, whether objectively demonstrated or subjectively sensed.

On voir dire examination of the jury panel in the instant case, the prosecutor elicited a show of hands from several veniremen who had previously been victims of various unrelated crimes. Venireman Howard H. Moore was among those who raised their hands. In exploring his past experience the following inquiry took place:

'VENIREMAN MOORE: About 20 years ago I was held up at 12th and Garfield at night, robbed. I think I could be fair in this trial, but this did happen to me.

(PROSECUTOR): Okay. But you feel that you could give both the state and the defendant a fair trial based on the evidence alone?

'VENIREMAN MOORE: I think I could.

(PROSECUTOR): Thank you, sir.

(DEFENDANT'S ATTORNEY): Mr. Moore, I'd like to ask you a question.

VENIREMAN MOORE: Go ahead.

(DEFENDANT'S ATTORNEY): Do you feel like if you are chosen for the jury in this case, when you're hearing the evidence come out about somebody who claims they were robbed, that your mind's going to go back to the time that you were robbed and you're going to have that on your mind?

VENIREMAN MOORE: Well, I think that it's possible, I think that's possible. I might think about that.

(DEFENDANT'S ATTORNEY): Well, do you think in deliberating on this case, if you are chosen as a juror, that you might have a hard time putting your experience as a victim of a robbery out of your mind?

VENIREMAN MOORE: I think it would be hard for me to put it out of my mind, I do.

(DEFENDANT'S ATTORNEY): Well, you see what I am driving at?

VENIREMAN MOORE: I do; I do.

(DEFENDANT'S ATTORNEY): Do you think you might have some problem being totally unbiased toward this defendant in this kind of a case?

VENIREMAN MOORE: I think that's possible, I think I could, you know, listen to the evidence and be fair and impartial in this case, but I think maybe I would think back to this time, too.

(DEFENDANT'S ATTORNEY): Well, we appreciate your honesty about that, Mr. Moore, think you.

Judge, I would ask on the basis of his answers that Mr. Moore be excused for cause.

THE COURT: He's indicated his ability to try the case fairly. If you wish to question him further, you may do so.

(DEFENDANT'S ATTORNEY):...

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37 cases
  • State v. Bey
    • United States
    • New Jersey Supreme Court
    • 2 d2 Agosto d2 1988
    ..."spend" them as he alone sees fit is accordingly impinged.' " State v. Morrison, 557 S.W.2d 445, 446 (Mo.1977) (quoting State v. Thompson, 541 S.W.2d 16, 17 (Mo.App.1976)); State v. Brown, 496 So.2d 261, 265-66 (La.1986) (loss of peremptory is denial of right); accord State v. Ealy, 624 S.W......
  • State v. Olinghouse
    • United States
    • Missouri Supreme Court
    • 10 d2 Junho d2 1980
    ...produce bias or prejudice against the defendant on trial and that question simply was not put as it was in the case of State v. Thompson, 541 S.W.2d 16 (Mo.App.1976), relied upon by appellant. On this record, it cannot be said that the trial court's ruling was an abuse of discretion. See St......
  • State v. Treadway
    • United States
    • Missouri Supreme Court
    • 10 d4 Novembro d4 1977
    ...on the cases of State v. Holliman, 529 S.W.2d 932 (Mo.App.1975); State v. Carter, 544 S.W.2d 334 (Mo.App.1976); and State v. Thompson, 541 S.W.2d 16 (Mo.App.1976) to substantiate his contention that it was error for the trial court not to strike Mr. Duke for cause. In each of these cases, a......
  • State v. Smith
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    • Missouri Supreme Court
    • 26 d2 Abril d2 1983
    ...veniremen from which to make his allotted peremptory challenges, State v. Engleman, 634 S.W.2d 466, 471 (Mo.1982); State v. Thompson, 541 S.W.2d 16, 17 (Mo.App.1976). While trial court refusal to sustain a valid challenge for cause constitutes reversible error, State v. Engleman, 634 S.W.2d......
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