State v. Walker

• Decision Date: 24 July 1990
• Docket Number: No. WD,WD
• Citation: 795 S.W.2d 522
• Parties: STATE of Missouri, Respondent, v. Joe O. WALKER, Appellant. 42576.
• Court: Missouri Court of Appeals

Page 522

795 S.W.2d 522

STATE of Missouri, Respondent, v. Joe O. WALKER, Appellant.

No. WD 42576.

Missouri Court of Appeals,

Western District.

July 24, 1990.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 22, 1990.

Application to Transfer Denied Oct. 16, 1990.

L. Patrick O'Brien, Kansas City, for appellant.

William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P.J., and LOWENSTEIN and GAITAN, JJ.

LOWENSTEIN, Judge.

Joe O. Walker was convicted by a jury of three counts of sodomy, § 566.060, RSMo 1986, for which he was sentenced to ten years imprisonment for each count. The sentences in the first two counts were to run consecutively, while the sentence in count three was to be served concurrently with the other two.

On appeal, Walker contends the trial court erred: (1) in overruling his motion to strike for cause three members of the jury panel where each stated unequivocally that they could not put their emotions aside and judge the case using their reason and common sense; (2) in overruling his motion to dismiss Count II of the indictment, where Count II was identical to Count I, thus charging him twice for the same offense and (3) in giving MAI-CR3d 300.02 and 302.04, and in refusing his offered instructions in that the given instructions improperly defined "proof beyond a reasonable doubt." The judgment is affirmed.

The evidence is not in dispute, that most favorable to the verdict is as follows: On approximately December 16, 1988, ten-year old Cynthia Walker was home alone with appellant, her natural father. During this time, appellant asked Cynthia to come into his bedroom. There, he undressed, asked Cynthia to do the same, then proceeded to have anal intercourse with her. Some time after, appellant repeated the same act in the living room, and at that time, also had oral intercourse with Cynthia.

Walker was charged by indictment with three counts of sodomy. Count I alleged that sometime between December 1, 1988 and December 31, 1988, appellant placed his penis into the anus of Cynthia Walker. Count II alleged verbatim the same offense. Count III alleged that sometime between December 1, 1988 and December 31, 1988, appellant placed his penis into the mouth of Cynthia Walker.

At trial, Walker stated he was an alcoholic and could not remember all of the nights in December 1988. However, he denied having anal and oral sex with his daughter. Nevertheless, he was convicted on all three counts.

Point one contends the trial court erred in overruling Walker's motion to strike for cause three members of the jury panel. Walker claims each of these jurors stated they could not put their emotions aside and judge the case fairly, therefore he was denied his right to a full panel of fair and impartial jurors prior to exercising his peremptory challenges. State v. Brown, 749 S.W.2d 448, 451 (Mo.App.1988).

During the voir dire defense counsel made the following remarks:

If I may continue, Cynthia Walker, a 10-year-old girl, will testify that her natural father, Joe Walker, placed his penis in her anus and then had oral sex with her. Now, I know that each of you, thinking about that, and I want you to take a minute to think about that and feel the emotion of it, because I think every human being would feel an emotion, hearing that kind of accusation, but here is what I need to know.

I want to know which ones of you can put that emotion away and judge this case on the evidence as it comes in, applying reason and common sense. Does everyone understand the question? The question is, I know we all have that kind of gut reaction, but I need to know who can put that gut reaction aside and apply with reason and common sense to the evidence in this case, and there are some people who cannot do it.

Raise your hand if you can put that emotion aside and judge this case using your reason and common sense.

Six venirepersons did not raise their hand. Three were struck for other reasons, while the remaining three responded as follows:

[Defense Counsel]: You feel the same way, you couldn't put that emotional response behind you?

Venireperson Biebel: I think it would play a factor.

[Defense Counsel]: Okay. Thank you. Anyone else here that didn't raise their hand--yes, Ms. Parr.

Venireperson Ruth K. Parr: Yes.

[Defense Counsel]: You feel--

Venireperson Parr: I think it might, even with children.

[Defense Counsel]: The emotional impact would be too strong?

Venireperson Parr: That's right.

[Defense Counsel]: Anyone else?

* * * * * *

Venireperson Janet C. Downs: Janet Downs, yes.

[Defense Counsel]: You feel like, the other persons that you'd have such a [sic] intense emotional reaction to those kinds of accusations you don't feel you could sit on this jury?

Venireperson Downs: Yes.

During individual questioning by the state, the prosecuting attorney asked the following questions, and received the following answers of the three challenged venirepersons:

[Prosecuting Attorney]: If the judge read you an instruction telling you what you are and are not allowed to consider in reaching your verdict, are you telling us that you cannot follow that law or do you think you can?

Venireperson Biebel: I could follow the law.

[Prosecuting Attorney]: I'd like to ask the same question of Ms. Parr.... Are you telling us you could or could not follow the law?

Venireperson Parr: I could follow the law.

[Prosecuting Attorney]: Thank you very much. And I wanted to ask Ms. Downs the same question.

Ma'am, would you be able to follow the law as the judge reads it to you, or are you telling us that you cannot follow the law?

Venireperson Downs: I believe I could follow the law.

The trial judge did not personally question any of these three individuals. The defense attorney's motion to strike the three for cause was overruled. Therefore, Walker contends, he was forced to use three of his peremptory challenges to remove the above stated venirepersons from the jury panel.

An individual accused of a crime is entitled to a full panel of qualified jurors before he is required to expend his peremptory challenges. State v. Schwer, 757 S.W.2d 258, 262 (Mo.App.1988); State v. Bebermeyer, 743 S.W.2d 516, 519 (Mo.App.1987). For a trial court to deny a legitimate challenge for cause constitutes an abuse of discretion and reversible error. Schwer, supra, at 262.

However, the determination of a venireperson's qualifications is a matter for the trial court in the exercise of sound judicial discretion and will be rejected only upon a clear showing of abuse of discretion. State v. Olinghouse, 605 S.W.2d 58, 69 (Mo. banc 1980); Schwer, supra, at 262; Bebermeyer, supra, at 519. To show such an abuse, the bare possibility of prejudice is not enough--it must clearly appear from the evidence that the challenged venireperson was in fact prejudiced. State v. Evans, 701 S.W.2d 569, 572 (Mo.App.1985). Any doubt as to the propriety of the trial judge's ruling should be resolved in his favor. Id. It should also be noted the qualifications of a juror are not conclusively determined by an initial response to a question--that determination is to be made based on the entire examination. Bebermeyer, supra, at 519. If after further questioning, jurors indicate an ability to follow applicable principles of the law, the court may then make its final determination of the qualifications of the jurors. Id.

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