State v. Eastburn

950 S.W.2d 595, 1997 Mo. App. LEXIS 1306
CourtMissouri Court of Appeals
DecidedJuly 16, 1997
DocketNos. 20604, 21163
StatusPublished
Cited by7 cases

This text of 950 S.W.2d 595 (State v. Eastburn) 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. Eastburn, 950 S.W.2d 595, 1997 Mo. App. LEXIS 1306 (Mo. Ct. App. 1997).

Opinion

CROW, Presiding Judge.

A jury found Appellant, Sheena Renea Eastburn, guilty of murder in the first degree, § 565.020, RSMo Cum.Supp.1992, and assessed punishment at imprisonment for life without eligibility for probation or parole. The trial court entered judgment per the verdict. Appellant brings appeal 20604 from that judgment.

While that appeal was pending, Appellant filed a motion to vacate the judgment and sentence per Rule 29.15.1 The motion court denied relief after an evidentiary hearing. Appellant brings appeal 21163 from that order.

We consolidated the appeals, Rule 29.15(7), but address them separately in this opinion.

Appeal 20604

Appellant’s brief presents three points relied on, two of which — the first and third— pertain to this appeal.

The first point avers the trial court erred in failing, sua sponte, to “remove for cause” two members of the venire. The third point maintains the trial court erred in overruling Appellant’s hearsay objections to testimony of three State’s witnesses.

The victim was Tim Eastburn. He married Appellant November 15, 1990. The marriage was dissolved September 17, 1992. The murder occurred two months later, on November 19,1992.

Appellant was represented at trial by a public defender and an assistant public defender. For convenience, we henceforth refer to them as “Defender” and “Assistant Defender,” respectively.

Appellant’s first claim of error arises from voir dire. Assistant Defender conducted voir dire for Appellant. One of his statements to the venire was:

“Sheena Eastburn is presumed innocent unless and until you all believe that she’s been proven guilty beyond a reasonable doubt. She doesn’t have to take the stand, she doesn’t have to testify. In fact, she doesn’t have to put on any evidence at all, and I as her attorney or [Defender] as her attorney, we don’t have to put on any evidence.
Is there anybody who believes that we should put on some evidence?”

Several members of the venire responded. Among them were Scott Woodworth and Alta Royal. The transcript shows:

“Venireman Woodworth: I do.
[Assistant Defender]: ... you’re ... Mr. Woodworth?
Venireman Woodworth: Yeah.
[Assistant Defender]: What do you believe, sir?
Venireman Woodworth: Believe it should be some explained.
[[Image here]]
[Assistant Defender]: ... Mr. Woodworth, are you expecting the defense to prove their [sic] innocence? Are you expecting us to prove Sheena Eastburn’s innocence?
Venireman Woodworth: Yeah.
[Assistant Defender]: Okay. Anyone else agree with Mr. Woodworth?
[[Image here]]
[Assistant Defender]: ... Ms. Royal, you’re shaking your head?
Venireman Royal: Yeah, I agree.
[Assistant Defender]: You expect us to prove that she’s innocent?
Venireman Royal: Yeah.”

At the conclusion of voir dire, Assistant Defender challenged numerous members of the venire for cause2; however, Assistant Defender lodged no challenge for cause against either Woodworth or Royal. Appellant thereafter used her peremptory challenges (§ 494.480.2(2), RSMo 1994) against members of the venire other than Wood-[598]*598worth and Royal. Consequently, Woodworth and Royal served on the jury.3

The only complaint in Appellant’s motion for new tidal regarding Woodworth was:

“The Court erred ... when it allowed venire person ... Woodworth to be seated on the jury after he stated that he believed defendant should testify to prove her innocence. As defendant was required to use the majority of her peremptory challenges on [other] venire persons who should have been struck for cause ... defendant was unable to exclude venire person ... Wood-worth!.]”

The only complaint in Appellant’s motion for new trial regarding Royal was identical to the complaint regarding Woodworth.

Appellant’s first point relied on reads:

“The trial court plainly erred in failing to sua sponte remove for cause venireper-sons ... Woodworth, and ... Royal, because Appellant was denied a jury of twelve unbiased and qualified jurors, in violation of her rights to due process of law and to a fair trial ... in that Woodworth and Royal said they expected the defense to prove Appellant’s innocence, even though they were told that they were required by law to presume Appellant innocent, and that the State had the burden of proving her guilty beyond a reasonable doubt.”

There is a subtle difference between the complaint about Woodworth and Royal in Appellant’s motion for new trial and the complaint about them in Appellant’s first point on appeal.

The complaint in the motion for new trial was that Woodworth and Royal stated they believed Appellant should testify to prove her innocence. The complaint in the first point on appeal is that Woodworth and Royal said they expected the defense to prove Appellant’s innocence.

As set forth infra in our account of the evidence, Appellant testified at trial regarding her role in the events preceding the murder and her actions and intent at the scene of the murder during its occurrence. In that respect, the instant case is like State v. Hadley, 815 S.W.2d 422 (Mo. banc 1991).

In Hadley, the members of the venire were asked if any of them believed the accused had to prove his innocence. Id. at 423. One venire member replied, “Well, I feel that if he doesn’t take the stand that I wouldn’t be able to judge it impartially.” Id. On appeal, the accused maintained the trial court committed plain error by failing to exclude the venire member sua sponte. Id. The Supreme Court held:

“Any potential miscarriage of justice in having [the venire member] on the jury was entirely dependent upon defendant failing to testify. From the outset, it was apparent defendant would testify. His was the only testimony supporting the claim of self defense. When defendant took the stand, the possibility of prejudice disclosed by [the venire member’s] voir dire examination evaporated. In any event, a trial court is under no duty to strike a juror on its own motion, even though the juror states on voir dire that if the defendant fails to testify the juror would be more likely to convict.”

Id. at 424[2],

It is clear from Hadley that we cannot convict the trial court of reversible error in failing to remove Woodworth and Royal from the venire sua sponte merely because they stated they believed Appellant should testify (the complaint in Appellant’s motion for new trial). Perhaps aware of this, Appellant claims on appeal that the trial court should have removed Woodworth and Royal from the venire sua sponte because they said they expected the defense to prove Appellant’s innocence.

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Related

Wadlow v. State
518 S.W.3d 872 (Missouri Court of Appeals, 2017)
Eastburn v. State
400 S.W.3d 770 (Supreme Court of Missouri, 2013)
State v. Sutton
320 S.W.3d 729 (Missouri Court of Appeals, 2010)
State v. Baumruk
280 S.W.3d 600 (Supreme Court of Missouri, 2009)
State v. Ebeirus
184 S.W.3d 582 (Missouri Court of Appeals, 2006)
State v. Wright
30 S.W.3d 906 (Missouri Court of Appeals, 2000)
State v. Slankard
74 S.W.3d 271 (Missouri Court of Appeals, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
950 S.W.2d 595, 1997 Mo. App. LEXIS 1306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-eastburn-moctapp-1997.