State v. Coleman

553 S.W.2d 885, 1977 Mo. App. LEXIS 2568
CourtMissouri Court of Appeals
DecidedJuly 5, 1977
DocketNo. 38202
StatusPublished
Cited by4 cases

This text of 553 S.W.2d 885 (State v. Coleman) 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. Coleman, 553 S.W.2d 885, 1977 Mo. App. LEXIS 2568 (Mo. Ct. App. 1977).

Opinion

DOWD, Judge.

Defendant-appellant appeals his conviction by a jury in the Circuit Court of nonsupport of a minor child under § 559.358, RSMo 1969, a misdemeanor, § 556.040, RSMo 1969. Defendant was ordered to pay a fine of five hundred dollars. We reverse and remand for a new trial.

As defendant does not question the sufficiency of the evidence to sustain the conviction, a brief summary of the facts will suffice. The complaining witness testified that she had had sexual relations with the defendant several times in January 1974 and on February 14, 1974. The child was born nine months later on November 14, 1974. Defendant denied having normal sexual relations with the complaining witness on any night but the night he met her in January 1974. The complaining witness denies that she had intercourse with anyone but defendant from the time she met him until the birth of the child. She also stated that the defendant acknowledged to her that the child was his. Defendant denies that he is the child’s father.

On this appeal, defendant raises only one Point Relied On. He contends that the trial court erred in refusing to permit the prospective jurors to answer the question “Has anybody, any one of the eighteen of you ever had a similar situation within your family circle.”

During voir dire defendant’s attorney, Mr. Sullivan, was examining the jury panel and the following occurred:

“MR. SULLIVAN [defense counsel]: . As the Court has informed you, this is a case in which the State has charged that Wayne has not supported a child. That is a crime. Wayne denies being the father of this child. Now, permit me to ask this question: And I know it is personal, but we got to know. Has anybody, any one of the eighteen of you ever had a similar situation within your family circle?” (Emphasis added).

The prosecuting attorney made no objection. However, the trial judge interrupted as follows:

“THE COURT: Mr. Sullivan, the Court believes that that would be an improper question as broadly stated as it is. I am going to ask you not to ask that question at this time.
MR. SULLIVAN: Your Honor, I think I am entitled to know.
THE COURT: Approach the bench gentlemen. (Counsel approach the bench and the following proceedings occurred). THE COURT: Go ahead, state your objection.
MR. SULLIVAN: I think I am entitled to know if because of a personal relationship within the family circle, either a daughter or a female relative being in the same situation or the other way, a man in the family circle being accused of this, because of that particular thing they have a preconceived notion about the case.
THE COURT: Mr. Sullivan, I believe this comes within the same category as asking these persons about having committed any previous crime. This is a matter that may be available through search of records, but is not a proper question to ask on voir dire of the jury panel and again I am going to instruct you and require you not to ask that question.
MR. SULLIVAN: I guess my exception is noted.
THE COURT: It is.”

The proceedings returned to open court.

“MR. SULLIVAN: Ladies and gentlemen, is there anything about what you know about this case right now that leaves any doubt in any of your minds as to your ability to be, if selected, a fair and impartial juror? I find the panel satisfactory your Honor.”

In order to resolve defendant’s Point Relied On two questions must be answered. The first is whether or not the trial judge improperly prevented defendant’s attorney from asking the veniremen if a similar situ[887]*887ation had occurred within their family circles, and second, whether the defendant’s objection to the court’s action was waived by stating the panel was satisfactory.

We believe this was a proper question in order to discover possible bias, attitudes and experiences by the veniremen and thus guarantee to defendant the right to trial by a fair and impartial jury. The trial court improperly curtailed defendant attorney’s voir dire examination by preventing him from asking the question set out above and in so doing abused his discretion.

Great liberality is allowed in inquiring into attitudes and experiences of the jury panel. The court in State v. Granberry, 484 S.W.2d 295, 299 (Mo. banc 1972) quoted with approval State v. Miller, 207 S.W. 797, 798 (Mo.1918) as follows:

“ ‘It is the rule in this state that a liberal latitude is allowed in the examination of the jurors on their voir dire. * * * [2] The purpose of the examination by defendant of the panel on their voir dire is to develop, not only facts which might form the basis of a challenge for cause, but also such facts as might be useful to him in intelligently determining his peremptory challenges.’ ”

The judge was wrong in not permitting the question to be asked. It was a necessary question in determining possible prejudice on the part of the jurors towards the defendant.

The state argues that the defendant’s attorney waived his objection to the trial judge’s ruling because of his failure to file a motion to discharge the jury panel and by stating he found the jury satisfactory. The state relies heavily on State v. Turnbough, 498 S.W.2d 567 (Mo.1973). However, since the case at bar was submitted to this Court the case of State v. Brown, 547 S.W.2d 797 (Mo. banc 1977) was handed down which affects our disposition of the state’s argument and this appeal. The Court in Brown held that it is not necessary to move to quash or discharge the panel in order to preserve for inclusion in a motion for new trial and review on appeal the specific objections made during voir dire to questions asked by the other party or to preserve for review the trial court’s refusing to permit proposed questions to be asked of the panel. The court in Brown stated: “To the extent that Turnbough is in conflict with this holding, it is overruled.” (p. 805). Therefore, defendant’s attorney did not waive his objection by not making a motion to discharge the panel.

Nor do we believe defendant’s attorney waived his objection to the court’s curtailment of his voir dire examination by his last statement of the voir dire examination that “I find the panel satisfactory.” We must examine this statement in the context in which it was made to determine if the defendant’s attorney waived his objection or acquiesced in the court’s ruling. Defendant’s attorney did everything possible to ask the question and preserve his record. He asked a proper question, then approached the bench and explained to the court why the question was important. He then pointed out the danger of a preconceived notion or prejudice by the jury on this matter. The court stated this information asked for in the question could be discovered by a “search of records.” The court viewed the question as analogous to asking a juror about his criminal record. We do not agree with this conclusion. However, we believe if any attorney on voir dire saw fit, he could inquire as to the criminal record of a juror.

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Cite This Page — Counsel Stack

Bluebook (online)
553 S.W.2d 885, 1977 Mo. App. LEXIS 2568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-coleman-moctapp-1977.