State v. Watson, KCD

Decision Date03 March 1980
Docket NumberNo. KCD,KCD
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Jerry WATSON, Defendant-Appellant. 29669.
CourtMissouri Court of Appeals

Ross Eshelman, Poague, Brock, Wall & Eshelman, Clinton, for appellant.

John Ashcroft, Atty. Gen., Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for respondent.

Before WASSERSTROM, C. J., DIXON, PRITCHARD, SWOFFORD, SOMERVILLE and TURNAGE, JJ., and ROBERT R. WELBORN, Special Judge.

TURNAGE, Judge.

Jerry Watson was convicted of the statutory rape of his 15-year old stepdaughter and the jury assessed punishment at imprisonment for 10 years. The dispositive issue raised on this appeal is the refusal of the trial court to excuse two venirepersons on Watson's challenge for cause. Reversed and remanded.

This case was argued and submitted to a panel of this court and an opinion was adopted. That opinion was later withdrawn and this case was submitted to an expanded panel.

Watson contends the trial court abused its discretion in failing to excuse venirepersons Dody and Johnston on his challenge for cause. The examination of venireperson Dody was as follows:

MR. ESHELMAN: . . . Do any of you know Mr. Watson's family? His wife is Berniece, and they live or did live in Deepwater, Missouri.

(Juror Dody raised hand.)

MR. ESHELMAN: Mrs. Dody?

JUROR DODY: Yes.

MR. ESHELMAN: Do they buy groceries at your store?

JUROR DODY: Yes.

MR. ESHELMAN: Other than buying groceries at your store, do you know them?

JUROR DODY: No.

MR. ESHELMAN: Or anything about them?

JUROR DODY: No.

MR. ESHELMAN: Anything good or bad?

JUROR DODY: No.

MR. ESHELMAN: So, I take it by your answer that your knowing them from buying groceries would not affect your judgment in this case?

JUROR DODY: No.

MR. ESHELMAN: Do any of you know Ronda Williams? She is the alleged victim in this crime, alleged crime. She is 16 years old. She attends school at, I believe it is called Lakeland School, near Deepwater. Do any of you know her?

(no answer.)

MR. ESHELMAN: She is the step-daughter of the defendant. Mrs. Dody, do you know her?

JUROR DODY: Yes.

MR. ESHELMAN: And what would be your occasion for knowing her?

JUROR DODY: Just a customer in our store.

MR. ESHELMAN: Would that affect your judgment in this case?

JUROR DODY: I would really just as soon not serve on this, knowing all the parties, but

MR. ESHELMAN: In other words, knowing that girl and knowing that this case is about her, would that affect your judgment in this case?

JUROR DODY: It could.

MR. ESHELMAN: Do you believe that that might prevent you from viewing the evidence in a completely fair and impartial manner?

JUROR DODY: It could.

THE COURT: Mrs. Dody, you stated you knew the people, but do you feel you could sit as a jury member, listen to the evidence and base your decision upon the evidence heard from the witness stand and instructions given by this Court? Could you do that?

JUROR DODY: Yes.

The entire examination of venireman Johnston was as follows:

MR. ESHELMAN: Mr. Johnston, do you have children?

JUROR JOHNSTON: Three, two boys and a girl.

MR. ESHELMAN: What is the age of the girl?

JUROR JOHNSTON: Twenty-three.

MR. ESHELMAN: Does the fact you have a girl cause you to view the evidence in this case differently than if you did not?

JUROR JOHNSTON: I think so.

MR. ESHELMAN: In what way might it affect your view of the evidence?

JUROR JOHNSTON: Might affect it.

MR. ESHELMAN: Do you fear that you would put that girl in place of the witness when you hear the witness testifying?

JUROR JOHNSTON: I don't know.

MR. ESHELMAN: So you can't promise me you could be fair and impartial when you heard the evidence, is that right?

JUROR JOHNSTON: That is right.

MR. ESHELMAN: You can't promise me that?

JUROR JOHNSTON: No.

THE COURT: Mr. Johnston, I will ask you the same question. Could you listen to the evidence from the witness stand and instructions given by this Court and based on those two factors return a fair and impartial verdict?

JUROR JOHNSTON: I think so.

Watson contends the examination shows both of these people expressed a doubt that they could fairly and impartially hear this case and the court therefore abused its discretion in refusing to sustain the challenge for cause. The State first contends this matter is not properly preserved for review because the record does not show whether these two venirepersons served on the ultimate jury panel or whether Watson was forced to use any of his peremptory challenges to remove them. State v. Morrison, 557 S.W.2d 445, 447 (Mo. banc 1977) makes it clear that a defendant need not show that he has exhausted his peremptory challenges or that he used a peremptory challenge to strike a venireperson in order to appeal the failure of the trial court to sustain a challenge for cause. The court there reiterated the well settled law of this state that a defendant is entitled to a full panel of qualified jurors before he is required to make his peremptory challenges. The State next contends the court in Morrison, n. 2, p. 447, leaves open the question of whether or not a defendant can appeal a ruling on his challenge for cause when the record does not disclose whether the venireperson may have been stricken by the state. The record in this case does not show the jury panel and those stricken by Watson and the State, but when this point came up in oral argument, Watson's attorney offered to supplement the record by filing a certified copy of the plaintiff and defendant's jury list showing which party made peremptory strikes. The State did not object to this procedure. That record has now been filed with this court and shows that Watson exercised a peremptory challenge to strike both Dody and Johnston. Thus, the question left open in Morrison is not present in this case.

As pointed out in State v. Land, 478 S.W.2d 290, 292(1, 2) (Mo.1972) the area involving the challenge of venirepersons can not and should not be the subject of standardized or rigid rules. Each case must be judged on the particular facts in that case. However, a broad discretion is vested in the trial court in the matter of ruling on challenges for cause and an appellate court reviews the facts of each case to determine whether or not there has been an abuse of that discretion.

The examination of Dody and Johnston bears a marked similarity to the examination of the venireman in State v. Lovell, 506 S.W.2d 441 (Mo. banc 1974). In Lovell the venireman stated he felt from what he had read in the papers that in criminal cases the hands of the police were tied. When asked if he felt that a person charged with a crime should have more of a burden, he stated, "I would try to judge honest, but I might be affected." In response to a lengthy question from the assistant prosecutor concerning his feeling and his ability to render a fair and impartial verdict, the venireman stated: "I feel that I could, but I do have this in the back of my mind." Later the venireman stated, "I think I could listen to the evidence and weigh it and judge righteously." Later, in response to a question by defense counsel, the venireman said that he thought he could put his feelings out of his mind and require the state to follow the standard of reasonable doubt. The next question was: "Will you have trouble adhering to that standard? That is the problem." The juror replied: "Probably a little." Thereafter, the court addressed the venireman and stated the only question in the case was whether or not the venireman could give the defendant a fair trial. The court asked if there was any reason he could not hear the evidence and the instructions of the court and give the defendant a fair and impartial trial under the evidence and the law, and the venireman stated, "I don't think so."

The court in discussing the action of the trial court in overruling the challenge for cause discussed the discretion vested in the trial court and stated at p. 444:

In exercising this discretion, the decision of the trial court should rest upon the facts stated by the juror with reference to his state of mind and should not be allowed to depend upon the conclusions of the juror whether he could or would divest himself of a prejudice he admitted to exist in his mind. State v. Jones, 384 S.W.2d 554, 558 (Mo.1964).

The court discussed the venireman's answers which revealed his state of mind that he might feel a defendant should have a greater burden in his own defense than that imposed upon him by the standard of reasonable doubt and that he might have trouble adhering to that rule but that he would try to judge properly, but that he might be affected by his feelings and that they might remain at the back of his mind if he sat on the case. The court then stated at p. 444(4):

"Only upon leading questions by the State's attorney and the court with respect to whether he knew of any reason why he could not give defendant a fair trial did he answer, 'I don't think so.' The only basis for the court's ruling is the...

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6 cases
  • Presley v. State
    • United States
    • Missouri Court of Appeals
    • April 15, 1988
    ...can tell the court and counsel that he will not be the kind of juror every criminal defendant is entitled to have." State v. Watson, 595 S.W.2d 754, 758 (Mo.App.1980). Out-state cases dealing with a claim of ineffective assistance of counsel based on counsel's failure to challenge a venirem......
  • State v. Trimble
    • United States
    • Missouri Court of Appeals
    • June 8, 1983
    ...hard to answer." Counsel pursued this matter on voir dire and received further equivocal answers. Citing and relying on State v. Watson, 595 S.W.2d 754 (Mo.App.1980), defendant argues that Melton's equivocations disqualified him and therefore he was "unconstitutionally" required to challeng......
  • State v. Murphy
    • United States
    • Missouri Court of Appeals
    • December 16, 1980
    ... ... State v. Treadway, supra, 649-650(3-4); State v. Goodrich, supra, 83(2) ...         Appellant has placed reliance upon State v. Lovell, 506 S.W.2d 441, 443-444(1-4) (Mo.banc 1974). The case cited by appellant and State v. Watson, 595 S.W.2d 754, 756-758(1-4) (Mo.App.1980), hold that a venireman's ... Page 390 ... opinion he could render a fair and impartial verdict would not rehabilitate a venireman who had clearly expressed doubt he could be a fair and impartial juror. Appellant's reliance on such reasoning is ... ...
  • State v. Ealy
    • United States
    • Missouri Court of Appeals
    • October 27, 1981
    ...the trial court in overruling his challenge for cause. Id. at 447; State v. Taylor, 602 S.W.2d 820, 822 (Mo.App.1980); State v. Watson, 595 S.W.2d 754, 756 (Mo.App.1980). In so holding, the court in Morrison reiterated the well-settled principle in Missouri that a defendant is entitled to a......
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