State v. Wilson, WD 64074.

• Decision Date: 23 August 2005
• Docket Number: No. WD 64074.,WD 64074.
• Citation: 169 S.W.3d 571
• Parties: STATE of Missouri, Respondent, v. Sherron WILSON, Appellant.
• Court: Missouri Supreme Court

169 S.W.3d 571

STATE of Missouri, Respondent, v. Sherron WILSON, Appellant.

No. WD 64074.

Missouri Court of Appeals, Western District.

August 23, 2005.

Irene C. Karns, Columbia, MO, for Appellant.

Deborah Daniels, Jefferson City, MO, for Respondent.

Before: EDWIN H. SMITH, C.J., HAROLD L. LOWENSTEIN and ROBERT G. ULRICH, JJ.

ROBERT G. ULRICH, J.

Sherron Wilson appeals from his convictions for violence to an offender housed in a department correctional center, section 217.385, RSMo 2000, and second degree assault, section 565.060, RSMo 2000, and concurrent sentences of ten and seven years imprisonment. He claims that the trial court abused its discretion in sua sponte dismissing a venireperson, who was deaf, based on the court's inability to accommodate the venireperson's disability. The judgment of convictions is affirmed.

Mr. Wilson was an inmate at the Fulton Reception and Diagnostic Center when he was charged with violence to an offender housed in a department correctional center and second degree assault for assaulting Robert Anderson, another inmate, by hitting him repeatedly with a piece of concrete and by striking him in the head with his fist. As a result of the assault, the victim suffered numerous abrasions, lacerations, and avulsions of the soft tissue area of his face and scalp, and a first-degree burn on the left side of his neck. At the trial in November 2003, during voir dire, the trial court sua sponte struck a venireman on the ground that Mr. Wilson was entitled to a fair and impartial panel capable of hearing all the evidence and the court could not accommodate the venireman's hearing disability by providing an interpreter that day for a trial. Mr. Wilson was ultimately convicted of the charged crimes and sentenced, and this appeal followed.

In his sole point on appeal, Mr. Wilson claims that the trial court abused its discretion in sua sponte dismissing the deaf venireman based on the court's inability to accommodate the venireperson's disability. Mr. Wilson contends that the trial court's action violated his right to a jury selected without discrimination as guaranteed by the Equal Protection Clauses of the United States and Missouri Constitutions. He also contends that the trial court's action violated the venireperson's entitlement to equal protection.

The Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution provide that an accused is entitled to a fair and impartial jury. Edgar v. State, 145 S.W.3d 458, 462 (Mo.App. W.D.2004). Additionally, the Equal Protection Clause of the Fourteenth Amendment prohibits a state from discriminating against prospective jurors on the basis of race or gender at any stage of the jury selection. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although Mr. Wilson claims that the trial court's action in dismissing the deaf venireman violated his and the venireman's equal protection rights, this case is decided on statutory grounds.

Within constitutional limits, a state may regulate the qualification of jurors. Strauder v. West Virginia, 100 U.S. 303, 309-10, 25 L.Ed. 664 (1879). Indeed, Missouri statutes regarding juror qualifications and accommodations in court proceedings for hearing impaired persons provide greater protection regarding the jury selection process than the federal and state constitutions. A defendant is entitled to a full panel of qualified jurors before he makes his peremptory challenges. State v. Stewart, 859 S.W.2d 913, 916 (Mo.App. E.D.1993). A trial court has broad discretion in determining the qualifications of potential jurors and, specifically, whether a deaf person can provide reasonable jury service. State v. O'Neal, 718 S.W.2d 498, 502 (Mo. banc 1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1388, 94 L.Ed.2d 702 (1987); State v. Clark, 110 S.W.3d 396, 402-03 (Mo.App. W.D.2003). The trial court is in a better position to determine the qualifications of prospective jurors, and doubts as to the trial court's findings will, therefore, be resolved in its favor. Clark, 110 S.W.3d at 403; Allen v. Grebe, 950 S.W.2d 563, 566 (Mo.App. S.D.1997). Thus, a trial court's ruling on a challenge for cause will not be disturbed on appeal unless it constitutes a clear abuse of discretion and a real probability of injury to the complaining party. State v. Feltrop, 803 S.W.2d 1, 7 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991); O'Neal, 718 S.W.2d at 502; Clark, 110 S.W.3d at 403.

Section 494.425, RSMo 2000, lists individuals disqualified from jury service. Subsections 5 and 9 disqualify the following persons from serving as a petit or grand juror:

(5) Any person unable to read, speak and understand the English language;

. . . .

(9) Any person who, in the judgment of the court or the board of jury commissioners, is incapable of performing the duties of a juror because of mental or physical illness or infirmity.

§ 494.425(5) & (9), RSMo 2000.¹ The language of these subsections suggests that a substantial hearing impairment could result in a juror being ineligible to participate on a petit or grand jury. State v. Bost, 820 S.W.2d 516, 517-18 (Mo.App. W.D.1991).

In this case, before the beginning of voir dire, the trial court noted that one of the veniremen was deaf and that a sign language interpreter had been contacted to assist in voir dire. The prosecutor moved to strike the deaf venireman arguing that the presence of an interpreter during deliberations would constitute a thirteenth juror and that a deaf person's socialization is such that "[t]heir common understandings are not the same as other jurors." The trial court overruled the prosecutor's motion to strike.

Two sign language interpreters appeared to work voir dire. Both interpreters testified under oath regarding their qualifications as interpreters. The interpreters explained to the court that ideally, two interpreters were needed for the proceeding because of the length of the proceeding and the intensity of the questioning. They also informed the court that only one interpreter would be available for that afternoon and that because she would not have a second interpreter to support her, she would not be able to interpret for more than an hour by herself. One interpreter further explained that she knew the venireman was the Assistant Superintendent of the Missouri School for the Deaf, that he spoke intelligibly, that he was more than adequately adept in one-on-one conversations, but that he would require an interpreter for full understanding in a situation such as a trial. The trial court, however, sua sponte struck the venireman for the sole reason that the defendant was entitled to a fair and impartial panel capable of hearing all the evidence and the court could not accommodate the venireman's disability by providing a second interpreter that afternoon for a trial.

Section 476.753, RSMo 2000, governs interpreters or aids for deaf persons in court proceedings. It directs that the court or county must provide an interpreter for a deaf juror. § 476.753.1(1), RSMo 2000. Specifically, the statute provides in pertinent part:

1. A designated responsible authority shall provide, based on a deaf person's expressed needs, auxiliary aids and services to interpret the proceedings to a deaf person and, if a deaf person gives testimony or other communication, to interpret the deaf person's testimony or other communication when:

(1) A deaf person is a party, juror or witness at any stage of any judicial or quasi-judicial proceeding in this state or in its political subdivisions, including, but not limited to, any civil proceeding, criminal proceeding or administrative hearing....

Id. Section 476.756, RSMo 2000, provides the process by which the court or county appoints an interpreter:

No qualified interpreter shall be appointed or auxiliary aids and services provided, pursuant to section 476.753, unless the designated responsible authority and the deaf person make a preliminary determination that the qualified interpreter or auxiliary aids and services are able to interpret effectively, accurately and impartially the statement of the deaf person and interpret the proceedings effectively, accurately and impartially to the deaf person.

The trial court has considerable discretion in determining whether an interpreter is needed and in selecting the interpreter. State v. Givens, 719 S.W.2d 25, 27 (Mo.App. W.D.1986); Kley v. Abell, 483 S.W.2d 625, 628-29 (Mo.App.1972).

Nothing in the record indicates that the venireman was unable to read, speak, and understand the English language; only that his inability to hear prevented him from understanding the spoken word in a situation like a trial without an interpreter. The trial court did not find that the venireman...