State v. Hendrix

646 S.W.2d 830, 1982 Mo. App. LEXIS 3809
CourtMissouri Court of Appeals
DecidedDecember 14, 1982
DocketNo. WD 33156
StatusPublished
Cited by15 cases

This text of 646 S.W.2d 830 (State v. Hendrix) 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. Hendrix, 646 S.W.2d 830, 1982 Mo. App. LEXIS 3809 (Mo. Ct. App. 1982).

Opinion

SHANGLER, Presiding Judge.

The defendant Hendrix was convicted by a jury of robbery in the first degree [§ 569.020] and sentenced to a term of twenty years. The appeal concerns contentions of jury selection, trial discipline and final argument, so a narrative of the evidence is not necessary to decision.

In the course of juror qualification, the defense counsel posed the question: “[A]re any of you so pressed for time that it may preclude you from giving due deliberation to this case?” To that, one member of the venire inquired: “How much time are you looking at? ... That makes a lot of difference.” The venire was informed, first by defense counsel and then by the court, that the trial would take that day and part of the next. The response satisfied that venireman. Other members of the jury panel indicated a response to the initial defense counsel question: Baker, Skivers, Poe, Fort-ner, Tolly, Huffman, Eisel, Albrecht and Walters. The defense counsel probed no further. Two members of the venire volunteered articulated responses. Fortner explained that he was “half moved” from one [832]*832residence to another, and “if it's a long drawn out affair, I would like to get off this.” The court commented: “I’m going to say at this time this case will not take in excess of maybe today and a couple of hours tomorrow.” Fortner showed no further concern. The other articulation was from venirewoman Albrecht. Her back was wrenched, and she was not sure whether she could “sit for long in one spot to be honest with you.” The defense counsel gave the subject no further attention.

The voir dire proceeded to conclusion. In the conference in chambers, defense counsel challenged for cause venire members Skivers, Ortabals, Armstrong, Albrecht and Baker on the assertion that each indicated the pressure of time would preclude their due deliberation to the case. We note at outset that venire member Ortabals was not among those who indicated [presumably by raised hand] any concern about the length of trial. Of the other four, Armstrong, Skivers and Baker remained tacit to the explanation of the court that the trial would extend no more than into the next day, and so were deemed satisfied. The concern of venirewoman Albrecht was not as to the length of the trial as such, but for her persona] comfort. In fact, none of the venire members the defendant sought to disqualify for cause [other than Albrecht] gave any sign other than by hand, made any inquiry, or spoke any response — and Albrecht had a concern other than that posed by the question of defense counsel.

The sense of the contention the defendant asserts is that the responses of the venire members were equivocal — in which circumstance, the trial court owed a duty of independent examination to determine whether the true state of mind of the venire members would disclose that, if chosen to serve as jurors, the press of time would impede deliberation of guilt or innocence. A criminal defendant is entitled to a full panel of qualified venire members before the peremptory challenges. State v. Reynolds, 619 S.W.2d 741, 749[6, 7] (Mo. 1981). To qualify as a juror, the venire member must be able to enter upon that service with an open mind, free from bias or prejudice. State v. Pride, 567 S.W.2d 426, 432[11] (Mo.App.1978). The burden is on the defendant to probe the venire for any ground of disqualification. State v. Cheesebrew, 575 S.W.2d 218, 222[4, 5] (Mo. App.1978). Where a member of the venire gives an equivocal or otherwise uncertain answer of an ability to hear the evidence and adjudge the cause without bias or prejudice, then the duty of the trial judge to make independent inquiry of qualification arises. State v. Ealy, 624 S.W.2d 490, 493[10-12] (Mo.App.1981). The question of counsel, even if understood as an indirect probe for prejudice, elicited no further response after the assurance by the court [fulfilled by events] that the trial would not last beyond part of the next day. The concern of the venire member Albrecht was not due to a “press of time” — so as to present the hazard of a verdict reached with undue haste, as the defendant proposes — but to a physical ailment. There was no hint of prejudice in her response. The duty of further inquiry was on the defendant. That the Albrecht response, without more definitive examination, suggests a juror distracted by physical discomfort, poses only a remote possibility of prejudice and does not override the presumptive validity of the trial court decision to seat that venire member. State v. Owens, 620 S.W.2d 448, 450 (Mo.App.1981). The point is denied.

The defendant contends next that the court restricted unduly the participation of counsel in the defense of the cause. The defendant was represented by two lawyers at the trial. The precise complaint is that the court would permit only one of the two counsel to participate in any cross-examination. The right of an accused to be represented by counsel, of course, is a guarantee of the law of the land. It is also an incident of the due process of law ensured by our state organic law. Mo.Const. Art. I, [833]*833§ 10 (1945); Magerstadt v. LaForge, 303 S.W.2d 130, 133[3] (Mo.1957). A defendant may engage the representation of more than one counsel, if means allow. State ex rel. Snip v. Thatch, 355 Mo. 75, 195 S.W.2d 106, 108[5, 6] (1946). The control of the trial of the case rests with the court, and the conduct of counsel is subject to that authority and discretion. 75 Am.Jur.2d, Trial, § 192 (1974). A court does not have discretion, however, to interfere with the trial tactics of counsel, nor otherwise restrict the function of advocacy fairly and ethically practiced. Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383, 388[11-13] (1949). Thus, while a court may restrict a party to one lawyer to cross-examine a witness [Thompson v. Curators of University of Missouri, 488 S.W.2d 617, 620[5-6] (Mo.1973) ], to restrict the cross-examination of every witness to the same lawyer, where the defendant enjoys representation by multiple counsel, unreasonably interferes with the right of counsel to govern tactics and strategy. Parker v. Wallace, 473 S.W.2d 767, 771[2-5] (Mo.App.1971).

The defendant was represented at the trial by Messrs. Welch and Martin. He contends to us that the trial court ordered that only one of the counsel would be allowed to cross-examine the prosecution witnesses, and so unlawfully hampered the exercise of the right to counsel. The abuse the defendant cites against the trial court, if shown, constitutes error. The record, however, presents only an ambiguous episode, and not the defined trial action the defendant asserts as judicial error. The entire transcription recites these events:

THE COURT: Come up here.

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Bluebook (online)
646 S.W.2d 830, 1982 Mo. App. LEXIS 3809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hendrix-moctapp-1982.