State v. Wacaser, 70726

• Decision Date: 31 July 1990
• Docket Number: No. 70726,70726
• Parties: STATE of Missouri, Respondent, v. Nila Jeanne WACASER, Appellant.
• Court: Missouri Supreme Court

Page 190

794 S.W.2d 190

STATE of Missouri, Respondent, v. Nila Jeanne WACASER, Appellant.

No. 70726.

Supreme Court of Missouri,

En Banc.

July 31, 1990.

Nancy McKerrow, Columbia, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

BLACKMAR, Chief Justice.

The defendant was initially charged with two counts of first degree murder in the stabbing deaths of her sons Jeremy, aged 11, and Eric, aged 8. Before trial the state entered a nolle prosequi of Count I, relating to Jeremy, and the trial proceeded on Count II, charging the murder of Eric. The jury found the defendant guilty as charged but was unable to agree on the punishment. The trial judge then proceeded in accordance with § 565.030.4, RSMo 1986, finding three statutory aggravating circumstances and sentencing the defendant to death. The appeal from the judgment and sentence is consolidated with an appeal from the denial of her motion under Rule 29.15, which was heard by another judge. We reverse the conviction and remand for a new trial because of error in the failure to sustain a challenge to a venireman for cause. This holding moots the 29.15 appeal. Of the remaining 29 points, we need consider only those which are likely to present problems on retrial.

1. Overruling of Challenges for Cause

The defendant argues that the trial court committed reversible error in overruling her challenge for cause to jurors Beavers and Morelock. The questioning of Beavers continued over many pages of the transcript. The problem is best illustrated by quotation, as follows:

MRS. CHAPMAN: I'm sorry. Mr. Beavers, you said you were not against the death penalty. Are you automatically in favor of the death penalty in every case of murder in the first degree.

JUROR BEAVERS: Not every case, no.

MRS. CHAPMAN: When you say "not every case," what do you mean? Do you tend to favor the death penalty in most cases of murder in the first degree?

JUROR BEAVERS: Not necessarily. I would say in this particular case with a child involved I might have a tendency to lean toward the death penalty.

MRS. CHAPMAN: You would just by virtue of that fact alone?

JUROR BEAVERS: That's correct.

MRS. CHAPMAN: Is that a pretty strong feeling on your part?

JUROR BEAVERS: I would have to say there would have to be some very strong mitigating circumstances. Right now, I couldn't imagine any.

MRS. CHAPMAN: You couldn't imagine any mitigating circumstances?

JUROR BEAVERS: Right.

MRS. CHAPMAN: So, is it fair to say that it would be pretty difficult for you to consider mitigating circumstances in such a case?

JUROR BEAVERS: I would say so, yes.

MRS. CHAPMAN: So, if the law and you were instructed as to the law in requiring additional evidence from the prosecutor and requiring you to consider mitigating circumstances, you'd have some difficulty because of your feelings considering those instructions.

JUROR BEAVERS: Yes, I would.

MRS. CHAPMAN: You would?

JUROR BEAVERS: Yes, I would.

* * * * * *

MR. CHANCELLOR: But, I believe in questioning from Susan Chapman you said, because this involves the death of a child, you would tend to lean toward the death penalty. Is that more or less what you said?

JUROR BEAVERS: That's correct.

MR. CHANCELLOR: What I want to ask you is, do you think honestly in your own mind you could sit and fairly listen to the evidence and apply the law from The Court to that evidence and render a fair verdict in this case, keeping in mind this involves the death of a child?

JUROR BEAVERS: If we're talking about a verdict of innocent or guilty, yes.

MR. CHANCELLOR: As far as punishment goes do you think you can render a fair verdict as to punishment based upon the evidence and the law?

JUROR BEAVERS: That I'm not sure about. I think I would have a tendency in terms of punishment to lean toward the death penalty, in a case like this.

* * * * * *

MR. CHANCELLOR: Mr. Beavers, you're not on trial. The defendant, Nila Wacaser, is. Can you sit and be a fair and impartial juror in her case? Can you, again, listen to the evidence and base your verdict solely on the evidence you hear in this courtroom and render a fair verdict?

JUROR BEAVERS: Again, I say it's a difficult question and I'm struggling with it in terms of I'd like to be impartial. I'd like to think I'm impartial, but I guess I'd say in the case of a child I've got my doubts.

MR. CHANCELLOR: I really kind of need a "Yes" or "No" as you can get.

Again can you base your verdict from the evidence that you'll hear?

JUROR BEAVERS: Put in those terms, yes.

Section 546.150, RSMo 1986, dating back to the early days of statehood, provides as follows:

It shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried, but if it appear that such opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.

Section 546.180.3, which has existed in its present form at least since 1925, provides:

In all criminal cases, a list of the jurors found by the court to be qualified to sit in the case shall be forthwith delivered by the clerk of the court to the attorney for the state who shall thereupon and within such time as may be directed by the court announce or indicate the challenges for the state. The jury list, with the state's challenges indicated thereon, shall then be forthwith delivered to the defendant or his attorney, who shall thereupon announce or indicate his challenges and return the list into court within such time as may be ordered by the court, and the remaining twelve, or if there be more than twelve, the first twelve next remaining on the list unchallenged, shall be the jury to try the cause.

The challenge for cause to Beavers should have been sustained. He had formed an opinion on the matter of punishment and gave no assurance that he would be likely to change his opinion. The opinion was based not on rumor but on facts which would necessarily be brought out in evidence. His assurance that he could "fairly judge the case solely from the evidence ..." is not sufficient because, under the instructions, the jury had complete discretion once it found aggravating circumstances.

We have consistently held that a defendant is entitled to a full panel of qualified jurors before being required to make peremptory challenges, and that there is prejudicial error in failing to sustain a meritorious challenge for cause. ¹ One of our more recent cases is State v. Hopkins, 687 S.W.2d 188 (Mo. banc 1985), in which a prospective juror's police officer son had been killed in line of duty while executing a search warrant. The juror said that this experience might affect his judgment as a juror. In response to the judge's question as to whether he could base his verdict solely on the evidence and the instructions his response was, "I certainly would try." We held that this response was not a sufficient assurance that he would set aside his previously announced inclinations. This is comparable to Beavers' final statement that he was not sure that he could render a fair verdict on the issue of punishment.

In State v. Stewart, 692 S.W.2d 295, 299 (Mo.banc 1985), there was a reversal because a prospective juror "never unequivocally stated that she would not draw any inference of guilt from defendant's failure to testify," after initially indicating that she would expect him to do so. To the same effect is State v. Holland, 719 S.W.2d 453 (Mo. banc 1986).

The state does not strongly suggest that Beavers' responses on punishment were unequivocal, but asks us to depart from our prior holdings and to adopt a rule long in effect in the state of Oklahoma, and held to be permissible under the federal constitution in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Under the Oklahoma rule a defendant cannot establish reversible error in the overruling of a meritorious challenge for cause unless the defendant is forced to accept the challenged juror. By this holding there is no prejudice if the challenged juror is removed by peremptory challenge. If an available peremptory challenge is not exercised, then the defendant will be held to have accepted the juror.

If this rule were extrapolated to Missouri then there would be no prejudice in failing to sustain challenges for cause in a capital case unless there were ten erroneous overrulings. The defendant could keep any lesser number of unqualified jurors from serving by exercising peremptory challenges. Our practitioners have always placed great value in the peremptory challenge and our decisions have recognized this value. We decline to depart from our long established standards, grounded on our statutes and confirmed in decisions, in favor of a holding that would severely dilute the value of peremptory challenges. Decisions of the Supreme Court of the United States applying the due process clause of the Fifth Amendment do not necessarily set a ceiling for our procedural standards. The failure to sustain the challenge to Beavers was prejudicial error.

The state argues that the Oklahoma rule is supported by the substantial weight of authority, citing cases. There is no showing, however, as to the statutory provisions in the states which hold as Oklahoma does, and a casual examination indicates that some of the citations are not definitive. ² Our holdings are not based on abstract constitutional provisions, but on explicit statutory language. A juror who should be excluded for cause under § 546.150 is not a "qualified" juror under § 546.180.3.

The state also points to the large number of reversals for failure to sustain meritorious challenges for cause. The cure for this problem, as we have often said (see Hopkins and Stewart ), lies in trial judges freely excusing jurors for cause when there are plausible challenges and also, perhaps, in prosecutors...