State v. Daniels

629 S.W.2d 627, 1982 Mo. App. LEXIS 3425
CourtMissouri Court of Appeals
DecidedJanuary 14, 1982
DocketNo. 12157
StatusPublished
Cited by10 cases

This text of 629 S.W.2d 627 (State v. Daniels) 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. Daniels, 629 S.W.2d 627, 1982 Mo. App. LEXIS 3425 (Mo. Ct. App. 1982).

Opinion

GREENE, Presiding Judge.

Defendant, Steven Gail Daniels, was jury-convicted of second degree burglary. The jury recommended a sentence of 90 days in the county jail. The trial judge disregarded the jury’s recommendation as to sentence, and assessed defendant’s punishment at 12 years’ imprisonment, under authority given the trial court by the Second Offender Act. Evidence adduced at the pre-sentence hearing showed that defendant had been convicted, on two prior occasions, of the crimes of second degree burglary. This appeal followed.

Defendant does not question the sufficiency of the evidence to sustain the present conviction. It suffices to say that the trial evidence established beyond a reasonable doubt that defendant unlawfully entered a storage closet on the premises of the Coach-light Motel in Rolla, Missouri, with the intent to steal two cases of “soda.”

Defendant’s first point of claimed error is that “[t]he trial court abused its discretion and, therefore, erred in its failure to excuse veniremen Hutcheson and Massey upon defendant’s challenge for cause based on bias and prejudice.”

In answer to a voir dire question by defense counsel as to whether any member of the jury panel had been the victim of a [629]*629crime, Hutcheson answered that he had. The following exchange between defense counsel and Hutcheson then transpired:

“Miss Daley: Sir, do you feel that that experience would make it difficult for you to sit on a jury in a criminal case? (Several items of personal property had been stolen from Hutcheson, but he had never gone to court over it.)
Juror Hutcheson: It wouldn’t make it difficult but I’d be pretty rough.
Miss Daley: Do you think that you could be fair and impartial?
Juror Hutcheson: Yes, I think I would. I think I’d be fair, but I’d — I’m for law and order.
Miss Daley: Would you tend to give more weight to a police officer than some other witness?
Juror Hutcheson: I probably would.
Miss Daley: Your Honor, I’ll ask that that juror be struck for cause.”

The trial court did not rule on the request of defense counsel to strike the name of juror Hutcheson for cause at that time.

Prospective juror Massey then stated he “had a car stolen one time”, after which the following exchange occurred:

“Miss Daley: Mr. Massey, do you feel that that experience would make it difficult or impossible for you to be fair and impartial in a criminal case?
Juror Massey: Well, I don’t think so, but I’m for law and order.
Miss Daley: Would you listen to all of the evidence?
Juror Massey: Yeah, I’d listen to it.
Miss Daley: Would you weigh it fairly or would you tend to give more weight to the State?
Juror Massey: Well, I don’t know. I couldn’t say hardly for sure about that.”

Prospective juror Roberts related that he had been the victim of burglaries on several occasions while he was in the furniture and hardware business. The following exchange between defense counsel and Roberts then occurred:

“Miss Daley: Mr. Roberts, do you feel that that experience would make it difficult for you to be fair in a criminal case?
Juror Roberts: I’m afraid I’d have to give you the same answer as Mr. Hutche-son. I’m for law and order and I’d be—
Miss Daley: Well, Mr. Roberts, if— would you presume someone guilty or would you give them the benefit of a doubt?
Juror Roberts: I’d give — I would go on the facts presented. Maybe I should change that to ‘supposedly facts.’ ”

A bench conference between counsel and the trial court was then held. What transpired at the conference is not in the record. Immediately thereafter, the following exchange occurred between the trial court with Roberts, Hutcheson and Massey:

“The Court: Mr. Roberts and Mr. Hutcheson and Mr. Massey, I direct these — this—these questions to all three of you:
The mere fact that you say that you’re for law and order — I believe you’ve already told the Court that you could follow the instructions which the Court read to you that you would follow the instruction which says that the defendant is presumed to be innocent and that this presumption remains until you, by your verdict, say that he’s guilty. Now, the mere fact that you gentlemen are for law and order doesn’t mean that you’re gonna convict some innocent person of a crime just merely because they’re charged with some criminal offense, do you?
Juror Roberts: You direct your question to me?
The Court: Yes, I’m directing it to you, Mr. Roberts.
Juror Roberts: I would have to — I’d weigh the evidence presented, sir.
The Court: I say: You wouldn’t convict a man—
Juror Roberts: No, sir.
The Court: — just because he was charged with a crime, unless the State would prove his guilt beyond a reasonable doubt?
Juror Roberts: In my own mind he’d have to be proven guilty.
[630]*630Juror Hutcheson: I feel the same way.
The Court: And Mr. Massey?
Juror Massey: I feel the same way, Your Honor.”

The trial court then denied the request of defense counsel to strike for cause the names of Roberts, Hutcheson and Massey from the jury list.

The record before us does not show whether Hutcheson or Massey actually served on the jury, but a defendant who seeks review of a trial court’s denial of his challenge for cause need not, as a predicate for review, show that he used a peremptory challenge to dispose of a venireman, or that the challenged venireman actually served. State v. Morrison, 557 S.W.2d 445, 447 (Mo. banc 1977). A defendant in a criminal case is entitled to a panel of qualified jurors before he is required to make his peremptory challenges. State v. Land, 478 S.W.2d 290, 292 (Mo.1972). The trial court has wide discretion in determining the qualifications of a venireman, and its ruling on a challenge for cause will not be disturbed in the absence of a clear abuse of discretion. State v. Treadway, 558 S.W.2d 646, 649 (Mo.banc 1977). The trial judge is in a far better position to make a determination as to the qualifications of a potential juror than we are, as his determination necessarily involves a judgment based on an observation of the demeanor of the venireman, as well as what he says, while we must depend on a cold record. State v. Harris, 425 S.W.2d 148, 155 (Mo.1968). For this reason, any doubt as to the propriety of the trial judge’s ruling should be resolved in his favor. State v.

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Related

State v. Edmonson
827 S.W.2d 243 (Missouri Court of Appeals, 1992)
Daniels v. State
726 S.W.2d 445 (Missouri Court of Appeals, 1987)
State v. Johnson
721 S.W.2d 23 (Missouri Court of Appeals, 1986)
State v. Evans
701 S.W.2d 569 (Missouri Court of Appeals, 1985)
State v. Jones
692 S.W.2d 343 (Missouri Court of Appeals, 1985)
State v. Draper
675 S.W.2d 863 (Supreme Court of Missouri, 1984)
State v. Butler
660 S.W.2d 225 (Missouri Court of Appeals, 1983)
State v. Taylor
643 S.W.2d 14 (Missouri Court of Appeals, 1982)

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Bluebook (online)
629 S.W.2d 627, 1982 Mo. App. LEXIS 3425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-daniels-moctapp-1982.