State v. Butler

549 S.W.2d 578, 1977 Mo. App. LEXIS 2501
CourtMissouri Court of Appeals
DecidedMarch 22, 1977
DocketNo. 37665
StatusPublished
Cited by8 cases

This text of 549 S.W.2d 578 (State v. Butler) 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
State v. Butler, 549 S.W.2d 578, 1977 Mo. App. LEXIS 2501 (Mo. Ct. App. 1977).

Opinion

McMILLIAN, Presiding Judge.

Defendant appeals from a judgment of conviction entered by the Circuit Court of the City of St. Louis finding him guilty of first degree robbery by means of a dangerous and deadly weapon, and a sentence of ten (10) years in the Missouri Department of Corrections pursuant to the Second Offender Act, § 556.280, RSMo 1969. For reversal, the defendant urges that the trial court erred: (1) in denying his motion for mistrial based upon allegedly improper voir dire; (2) in overruling defendant’s objections to questions by the Assistant Circuit Attorney to a defense witness which assumed a fact not in evidence; and (3) in overruling the defendant’s objection to statements made by the Assistant Circuit Attorney during his closing argument as to the credibility of Mrs. Hudson, defendant’s grandmother. We find no merit in these allegations of error and accordingly, affirm.

Because the defendant does not question the sufficiency of the evidence, we shall give only a brief review of the facts. On April 21, 1975, at 10:00 a. m., an individual identified as the defendant and another man robbed a Jack-in-the-Box restaurant, on Kingshighway Boulevard. Both men came up to the counter and pulled their guns, the other individual announced, “This is a holdup.” The individual identified as the defendant jumped over the counter, replaced the gun in his breeches, took approximately twenty (20) dollars from the cash register, and ran out the Kingshighway door. Meanwhile the other individual had gone upstairs and returned a minute or two later with the manager, at gunpoint. He immediately left out the back door with $1500 in cash, taken from the upstairs safe. A few days later, Mrs. Jeanetta English, the Jack-in-the-Box employee who was working at the counter at the time of the robbery, identified the defendant as the man who stole the twenty (20) dollars from the cash register.

Appellant’s defense was based upon the testimony of his grandmother with whom he lived. She stated that Dwayne Ransom, a friend of the defendant’s came to see Butler about 9:00 a. m. on April 21. The two men had a short conversation, after which Mr. Ransom left and the defendant returned to bed until 11:30 a. m. when Mr. Ransom returned to see Butler.

Based on the above evidence the jury found the defendant guilty of first degree robbery.

Appellant’s first claim of error is that the trial court failed to grant his motion for a mistrial for improper voir dire. [580]*580The following exchange took place between the prosecuting attorney, Mr. O’Toole and Mr. Charles Westbrook, a venireman during voir dire:

“MR. O'TOOLE: Do you have a son named Charlie?
“MR. WESTBROOK: Right.
“MR. O’TOOLE: Did you used to live over on Swan, near Manchester?
“MR. WESTBROOK: No, I lived at Norfolk and Newstead.
“MR. O’TOOLE: Yeah, I used to know your son because I used to work at the YMCA. He’s a good kid.”

Defendant relying on State v. Holliman, 529 S.W.2d 932 (Mo.App.1975), argues that these comments indicating that the prospective juror was acquainted with the prosecuting attorney were prejudicial. As such, they deny the defendant his right to a full panel of qualified jurors before he makes peremptory challenges. Nothing in the transcript shows that defendant in fact used one of his peremptory challenges to remove Mr. Westbrook. The only thing we have is defendant’s bald assertion contained in his brief that he used a peremptory challenge to remove the venireman. We do not, however, decide the issue on this basis.

The trial court did not err in finding that this questioning was not prejudicial as to this juror or to the jury as a whole, or in denying the motion for mistrial. In the Holliman case, supra, relied on by the defendant it was the cumulative effect of the venireman’s relationship with the victim which rendered it error not to sustain the challenge for cause. In that case the challenged juror knew the slain policeman, was a friend of the policeman’s father, had a son who not only was a policeman subjected to the same danger but was also assigned to the same district where the killing had occurred. State v. Holliman, supra. The tenuous acquaintance established between Mr. O’Toole and Mr. Westbrook cannot compare to the close relationship in Holliman. Moreover, the courts have been willing to find a juror competent in spite of a close relationship between that juror and counsel. State v. Doepke, 536 S.W.2d 950 (Mo.App. 1976) (The trial court did not abuse its discretion in denying a motion to quash the jury panel even though the prosecuting attorney was known to all jury members.) (State v. Grant, 394 S.W.2d 285, 289 (Mo.1965) (The trial court did not err in failing to sustain the challenge of a prospective juror who had known the prosecutor all his life and was represented by the prosecutor “in any legal matters [he] might have.”) State v. Jones, 64 Mo. 391 (1877) (That the juror was the father-in-law of the prosecuting attorney did not render him incompetent.)

Even if the above remarks were prejudicial as to Mr. Westbrook a mistrial and discharge of the entire jury panel is an inappropriate remedy. A mistrial is reserved for more serious errors. Whereas the defendant could have used the less drastic challenge for cause the record does not disclose that he even made such a challenge so as to allow the trial court to rule on it. In addition, the disqualification of an individual juror for bias is not sufficient grounds for a challenge of the entire panel. State v. Weidlich, 269 S.W.2d 69, 71 (Mo.1954).

Lastly, even if the remarks were prejudicial, any objection to them was waived by the defendant when he expressly accepted the panel as satisfactory. State v. Turnbough, 498 S.W.2d 567, 570 (Mo.1973).

In light of the standard of review in Holliman, supra (the decision of the trial judge to include a juror is reversible “only for an abuse of discretion and ‘all doubts should be resolved in favor of the finding of the trial court.’ ”) and the minimal acquaintance established between the venireman and Mr. O’Toole, the trial court should be affirmed.

The second error claimed by the defendant is that the questions asked by the prosecuting attorney when cross-examining the defense witness, Mrs. Hudson, assume facts not in evidence and were argumentative. In substance the prosecutor asked Mrs. Hudson if she was aware that her grandson bought a car the day after the [581]*581robbery, if she had seen him driving a car, and if she saw a car parked outside her house. To all questions she responded negatively.

The state does not discuss whether these questions were, in fact, improper but claims that even if they were, any prejudicial effect they may have had was cured by the answers given. Recently the Supreme Court reaffirmed this principle. State v. Hemphill, 460 S.W.2d 648

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Wiley
766 S.W.2d 700 (Missouri Court of Appeals, 1989)
State v. Allen
714 S.W.2d 195 (Missouri Court of Appeals, 1986)
State v. Crespo
664 S.W.2d 548 (Missouri Court of Appeals, 1983)
State v. Callahan
641 S.W.2d 186 (Missouri Court of Appeals, 1982)
State v. Howard
606 S.W.2d 268 (Missouri Court of Appeals, 1980)
State v. Hutchens
604 S.W.2d 26 (Missouri Court of Appeals, 1980)
State v. Payton
581 S.W.2d 384 (Missouri Court of Appeals, 1979)
State v. Haynes
573 S.W.2d 68 (Missouri Court of Appeals, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
549 S.W.2d 578, 1977 Mo. App. LEXIS 2501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-butler-moctapp-1977.