State v. Williams, 42543

• Decision Date: 22 September 1981
• Docket Number: No. 42543,42543
• Citation: 624 S.W.2d 127
• Parties: STATE of Missouri, Respondent, v. Willie WILLIAMS, Appellant.
• Court: Missouri Court of Appeals

Page 127

624 S.W.2d 127

STATE of Missouri, Respondent, v. Willie WILLIAMS, Appellant.

No. 42543.

Missouri Court of Appeals, Eastern District, Division Three.

Sept. 22, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 16, 1981.

Application to Transfer Denied Dec. 14, 1981.

David Uthoff, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George Peach, Circuit Atty., St. Louis, for respondent.

CRIST, Presiding Judge.

Defendant appeals from a jury conviction of robbery in the second degree. The defendant was found to be a persistent offender under § 558.016, RSMo. 1978 and was sentenced by the trial court to a term of twenty-five years pursuant to § 558.021. We affirm.

The pivotal issue of this appeal is whether the trial court abused its discretion in denying defendant's request to strike for cause venireperson Mary Privett.

Our standard of review was enunciated in State v. Christian, 604 S.W.2d 758, 760 (Mo.App. 1980) as follows:

(T)he trial court has vast discretion in ruling on a challenge of a venireman for cause and its decision should not be disturbed except for a clear abuse of discretion. (citations omitted) This rule is based on the logical conclusion that the trial court is in a better position to determine the validity of a challenge for cause than an appellate court.

During voir dire, Ms. Privett revealed a friend and fellow employee had been the victim of a burglary. She was casually acquainted with two members of her church's congregation who were policemen. She asked defense counsel to repeat his statement concerning the state's burden of proof in a criminal case and twice, in response to his questions as to whether she would be able to determine if the state had proven its case beyond a reasonable doubt, replied "I think so." At another point, Ms. Privett gave an ambivalent answer to a question by defense counsel concerning credibility of witnesses, a query which neither the court nor the prosecutor understood.

Defense counsel then told the panel that the only evidence the jury would hear would be presented by the state. Ms. Privett asked: "You mean you won't have any defense evidence at all? " The defense attorney again explained that there was no duty on the part of the defense to put on any evidence and asked if she would be able to assess the state's evidence on its own without deviating from the reasonable doubt standard. To this, Ms. Privett answered: "I don't know about that. If you don't have any defense evidence and you just have it one sided-."

At this point, the court intervened and attempted to clarify the concepts of the presumption of the innocence of the accused, the burden of proof on the state in a criminal proceeding and reasonable doubt. Defendant's counsel then asked if Ms. Privett had any reservations. She said "Well-kind of, yes, I do." and "Well, I mean, I still don't understand why you can't hear both sides of the story, both sides of the crime. I don't understand that. Of course, I never was in Court before. I don't know anything about it but I thought you have to have both sides."

The court again explained the state's burden of proof and told Ms. Privett that she was not a suitable juror if she felt the defendant would have to prove his innocence. Ms. Privett, in response to defense counsel's question, averred she would be able to follow the judge's instruction in this area.

After excusing two other jurors for cause the court then questioned Ms. Privett as follows:

THE COURT: Very well. Juror 350, (Mary Privett) do you feel that you could give both sides a fair and impartial trial in this case, and if you feel you could not then you just simply say so.

It's your duty to say if you feel you cannot then, it's your duty to tell the Court that you can't.

MARY L. PRIVETT: I wouldn't be sure. I wouldn't be sure of it.

THE COURT: Well, the difficulty with that is, ma'am, that these attorneys are going to select this jury based upon their answers to them now. If, after you're sworn as a juror in this case you decide you could not, then it would be too late, so they have to know now if you have some doubt about it or if you would be uncomfortable in sitting as a juror in this case feeling that you may not give both sides a fair and impartial trial, then you just tell the Court that you feel that you are not a suitable juror in this case.

MISS PRIVETT: Well, there would be a slight doubt.

THE COURT: Well, Madam Juror, I suppose that we as human beings are never clear on any particular subject matter.

MISS PRIVETT: Well, that's true.

THE COURT: There is-I'm sure there's a doubt in every person's mind as to whether or not they could do this or that or when they're asked to conform to a certain standard whether they can meet that standard. I think that is just human. But, as best you can, do you feel that you could give both sides a fair trial. Now, we have to have a yes or no answer because these attorneys have to go by what you say now because it will be too late once this jury is sworn.

MISS PRIVETT: Well, to the best of my knowledge I think I could.

THE COURT: All right. Do you wish to pursue it any further, gentlemen?

MR. CURRAN: No, your honor.

MR. FINNEY: I do not, your honor.

Ms. Privett was questioned no further.

On the basis of Ms. Privett's statement throughout the entire voir dire, it cannot be said that the trial court...