State v. Archie

890 S.W.2d 381, 1994 Mo. App. LEXIS 2001, 1994 WL 722055
Missouri Court of Appeals·Decided December 28, 1994·No. Nos. 18182, 19128·Published

Opinion

FLANIGAN, Judge.

A jury found defendant Bobby Archie guilty of robbery, assault, and two counts of armed criminal action. He was sentenced to terms of imprisonment totaling 102 years, some running concurrently and some consecutively. Defendant appeals, and that appeal is Case No. 18182.

After the jury trial, defendant filed a motion under Rule 29.15,1 seeking relief from the conviction. The motion, as amended by counsel, was denied after an evidentiary hearing. Defendant appeals from that denial, and that appeal is Case No. 19128. The appeals have been consolidated and will be dealt with separately in this opinion.

Case No. 18182

Defendant’s sole point is that the trial court erred in denying his challenge for cause to venireperson Marilyn Lee, in violation of his rights to due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and Art. I, §§ 10 and 18(a) of the Missouri Constitution, “in that Ms. Lee stated that she would be unable to listen to the evidence in the case because of the gory details involved. Furthermore, Section 494.480, RSMo Cum.Supp.1993, is unconstitutional to the extent it eliminates defendant’s ability to raise this claim of error, as Article II, Section 1 of the Missouri Constitution prohibits the legislature from exercising judicial power.”

This court holds that there is no merit in defendant’s claim that the trial court erred in denying his challenge for cause to Ms. Lee. In so holding, this court does not rely on § 494.480,2 RSMo Cum.Supp.1993. [383] Thus, defendant’s attempt to challenge the constitutionality of that statute is moot.

Rule 30.06 requires the brief for appellant in a criminal appeal to contain, among other things, a statement of the facts. Rule 30.06(c) requires the statement of facts to be a fair and concise statement of the facts relevant to the questions presented for determination without argument. Such statements may be followed by a resume of the testimony of each witness relevant to the points presented.

Defendant’s statement of facts contains, in addition to page references, the following:

“During voir dire, the prosecutor indicated that the case involved a very violent crime with distasteful and gory evidence, and asked if such evidence would make any of the potential jurors uncomfortable. Marilyn Lee stated that she did not like to hear explicit details on such matters, that such matters bothered her, and that she avoided any such matters in television or newspaper reports. The state asked Ms. Lee, ‘so you’re saying you’d probably be unable to listen to the evidence in this case?’ Her reply was ‘yes.’ ”

Defendant used a peremptory challenge to remove Ms. Lee from the venire. Significantly, and improperly, defendant’s statement of facts makes no mention of the following colloquy between defense counsel and Ms. Lee at a later point in the voir dire examination:

“DEFENSE COUNSEL: Mrs. Lee, I would like to ask you some questions about your earlier comments about your — the problems you would have of hearing so-called gory details. How would those details affect your ability to sit as a juror?
“PROSPECTIVE VENIREMAN LEE: The ability — it wouldn’t affect the issues— I’m the type of a person that does not like to hear, or read, or see that type of thing. I don’t read about it — those things in the newspaper, I mean, any explicit details. I try not to listen to the TV, and I definitely don’t watch movies with anything like that that has—
“DEFENSE COUNSEL: So if you would see something in the newspaper or on the TV, you would tend to sort of avoid that and not — not pay attention to that?
“PROSPECTIVE VENIREMAN LEE: Exactly. That may not be the way I should handle it, but that’s the way I do handle it.
“DEFENSE COUNSEL: All right. And how would those — if there were to be that type of evidence in this trial, how would you handle that situation?
“PROSPECTIVE VENIREMAN LEE: The best I could.
“DEFENSE COUNSEL: Do you think you would be able to avoid turning away from the evidence in this trial?
“PROSPECTIVE VENIREMAN LEE: Yes, I do think I could do that.
“DEFENSE COUNSEL: Do you think it would affect your decision?
“PROSPECTIVE VENIREMAN LEE: No, I think — I think I would be able to reasonably consider the evidence, regardless of what it was.”

The qualifications of a prospective juror are not determined conclusively by a single response. They are made on the basis of the entire voir dire examination. State v. Gilmore, 681 S.W.2d 934, 944[36] (Mo. banc 1984). This court holds that the trial court did not abuse its discretion in denying defendant’s challenge for cause to Ms. Lee. There is no reason to consider whether § 494.480.4, which became effective after the trial of this case, is an independent reason to invalidate defendant’s point.

The judgment is affirmed.

Case No. 19128

Movant’s sole point is that he was entitled to relief on his Rule 29.15 motion, and the trial court erred in ruling otherwise, in that movant was denied his right to effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Art. I, § 18(a) of the Missouri Constitution, “in that trial counsel abandoned the defense of mental disease or defect precluding criminal responsibility, relying on psychological evaluation reports that were significantly incom-[384] píete and were replete with internal inconsistencies, thereby causing a reasonably competent attorney to question the accuracy of those evaluations. The motion court denied the Rule 29.15 motion because there was no evidence that the examinations were deficient, even though the motion court refused appellant the opportunity to present such evidence at the hearing.”

“Appellate review of a denial of post-conviction relief is limited to whether the findings, conclusions and judgment of the motion court are clearly erroneous. Rule 29.15(j). The motion court’s findings, conclusions and judgment are clearly erroneous only if a review of the entire record leaves the court with a definite and firm impression that a mistake has been made.” State v. Vinson, 800 S.W.2d 444, 448[8] (Mo. banc 1990).

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State v. Archie, 890 S.W.2d 381, 1994 Mo. App. LEXIS 2001, 1994 WL 722055 (Mo. Ct. App. 1994).

890 S.W.2d 381 (State v. Archie) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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