Marshall v. Brown

608 S.W.2d 105, 1980 Mo. App. LEXIS 2939
CourtMissouri Court of Appeals
DecidedOctober 7, 1980
DocketNo. 40945
StatusPublished
Cited by6 cases

This text of 608 S.W.2d 105 (Marshall v. Brown) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall v. Brown, 608 S.W.2d 105, 1980 Mo. App. LEXIS 2939 (Mo. Ct. App. 1980).

Opinion

STEPHAN, Judge.

Defendant Charles Brown appeals a judgment of $20,000 entered upon a jury verdict in favor of plaintiff Michael Marshall. The litigation arises from an accident which occurred on October 23, 1975, in which plaintiff’s motorcycle was struck in the rear by defendant’s automobile. Plaintiff had pulled to a stop at a stop sign. Defendant testified that his attention was momentarily diverted, that when he redirected his observation to the roadway, he saw the motorcycle for the first time, but that it was too late to brake or swerve to avoid hitting it. Finding merit in one of defendant’s five assignments of error, we reverse and remand for a new trial.

Defendant first alleges error in the trial court’s refusal to permit the questioning of the panel on voir dire as to whether any of the panel members would be prejudiced against defendant because he was black. Plaintiff in this action was white.1 Early during voir dire, and outside the hearing of the panel, counsel for plaintiff made a motion in limine to prevent inquiry of that nature. Defendant’s attorney indicated that the motion was unnecessary because he had no intention of asking such a question. Voir dire was then conducted by counsel. Plaintiff’s counsel probed the panel, inter alia, for possible prejudice against plaintiff because of the fact that he was a police officer. Two panel members who admitted such bias were excused for cause. Following this examination, defense counsel requested permission to question the venire panel regarding possible racial prejudice. This “about-face” apparently resulted from his feeling that a racial factor had been injected sub silentio into the proceedings because of the fact that both of the excused veniremen, who admitted a likely prejudice against a white plaintiff, were black. The court’s denial of such permission forms the grounds for defendant’s first assignment of error.2

Defendant cites Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), as the primary support for his argument. In that case, tried in federal district court, the Supreme Court overturned the conviction of a black defendant for the murder of a white policeman because of the trial court’s failure to question the venire panel regarding the possibility of racial prejudice. The Aldridge holding was grounded on the “essential demands of fairness,” Id., 310, 51 S.Ct. 471. A subsequent case, Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), reversed a criminal conviction for a similar reason and expressly based its holding on Fourteenth Amendment due process grounds.

However, subsequent cases have qualified, or at least explained, the Aldridge-Ham rulings. In Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976), the Court found no error in the trial court’s refusal to permit voir dire questioning concerning racial bias, and accordingly upheld the conviction, in a Massachusetts state court, of a black defendant for the murder of a white security guard. The Court there [107]*107stated that Aldridge should be recognized merely as an exercise of the Supreme Court’s supervisory control over lower federal courts,3 Id., 598, n. 10, 96 S.Ct. 1022 n. 10; and that Ham stood for the proposition that interrogation as to racial bias on voir dire is constitutionally mandated (and therefore required in state courts as well) only when circumstances “suggest a significant likelihood that a racial prejudice might infect [the defendant’s] trial.” Id., 598, 96 S.Ct. 1022. See also United States v. Bowles, 574 F.2d 970, 973, n. 3 (8th Cir. 1978). In Ham, the Court found such circumstances to exist: the black defendant was well known locally for his civil rights activities; his defense at trial was that he was framed on the charge of drug possession by local authorities as a means of harassment because of those activities. The facts in Ristaino suggested no such likelihood, the Court finding insufficient an argument grounded principally on the fact that defendant was black while his victim was white.

On the record of the instant case, we find a similar lack of support for the argument that there was a “significant likelihood” that defendant’s trial was infected by racial bias. In Ham, a racial element was inextricably part of the case: defendant attempted to show that local authorities had a motive to bring false charges against him, a motive based on defendant’s race and on his activities concerning racial issues. The case at bar contains no such element. Moreover, in this case a white plaintiff complains of a black defendant’s negligence in a common type of automobile accident. An allegation of that type of negligent conduct is in our view much less likely to inflame racial passions than was the criminal narcotics charge brought against defendant in Ham.

Prior to plaintiff’s voir dire interrogation of the panel, defense counsel and the court concurred that inquiry into possible racial bias was unnecessary. We do not believe it highly significant that two black veniremen subsequently admitted a bias against plaintiff, when the only stated ground for that bias was plaintiff’s occupation. Therefore, on the basis of Ristaino, we reject Aldridge and Ham as support for an argument that defendant had a constitutional right to submit the question to the panel.

We turn then to the question of whether the requested interrogation is required under Missouri law.4 We are not aware of any Missouri cases requiring voir dire questions on possible racial bias. In State v. Nelson, 459 S.W.2d 327 (Mo.1970), the trial court addressed the panel as a group and asked about possible bias against a black defendant. Defendant argued on appeal that the question should have been put to each venireman individually. The Missouri Supreme Court held that the limitation by the trial court was not an abuse of its discretion. Id., 331. In so doing, the court did not address the question as to whether any interrogation on the racial issue was required in the case. Missouri courts have only said that such inquiry is proper. State v. Pyle, 343 Mo. 876, 123 S.W.2d 166, 169-170 (1938); Hawkins v. Mo. Pac. Ry. Co., 182 Mo.App. 323, 170 S.W. 459, 465 (1914).

Absent any requirement in Missouri law of voir dire questions on possible racial bias in this type of a case, we must look to the general rule governing voir dire examination. Such examination is largely a subject for the trial court’s control in the exercise of its discretion. The appellate court will interfere with the trial court’s rulings only when there has been a manifest abuse of the court’s discretion and when there is a probability of injury to the defendant. Hill v. Boling, 523 S.W.2d 867, 873 (Mo.App.1975); Bunch v. Crader, 369 S.W.2d 768, 771 (Mo.App.1963).

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Bluebook (online)
608 S.W.2d 105, 1980 Mo. App. LEXIS 2939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-brown-moctapp-1980.