State v. Jones

692 S.W.2d 343, 1985 Mo. App. LEXIS 4053
Missouri Court of Appeals·Decided May 7, 1985·No. No. 48652·Published·Cited by 2 cases

Opinions

KAROHL, Judge.

Defendant was convicted of burglary second degree, § 569.170 RSMo 1978. Since defendant was charged as a persistent offender under § 558.016 RSMo 1978 the court determined punishment. Defendant had previously been convicted on guilty pleas of two burglaries, a stealing and an assault, all felonies. The sentence was ten years.

Defendant claims error in the trial court’s refusal to remove venire person Carroll for cause. Although she is the wife of a police officer, defendant does not rely on that fact. He relies only on the following inquiry and the trial court’s failure to inquire. Defendant maintains that she expressed doubt and was not qualified as an impartial juror.

Having asked the jury panel if any one knew any police officers, the prosecutor then asked juror Carroll:

[PROSECUTOR]: Who do you know?
JUROR CARROLL: My husband is a police officer.
[PROSECUTOR]: Um, now we get down to the — tell me that’s a real hard job. Can you treat a police officer and his testimony on the same basis that you would treat anyone else’s?
JUROR CARROLL: I don’t really know if I could.
[PROSECUTOR]: All right. We need a little bit of a commitment. We need to know whether you would treat a police officer’s testimony with the same degree of detachment, same skepticism, and the same basis as you would treat any other witness that would come in?
In other words, would you be any more or less inclined to believe a police officer because he was a police officer?
JUROR CARROLL: No.
[PROSECUTOR]: Okay. Double negative. What we’re asking is would you judge a police officer’s testimony the same as you would judge anyone else’s?
JUROR CARROLL: Probably, yes.
[PROSECUTOR]: Okay. We need something. We need a yes or no. Um, in other words, obviously you’re married to a police officer. Many of his friends are police officers. You socialize with them, I assume, but the question is would the fact that there are two police officers, who may or may not know your husband, the fact that two police officers are coming into testify, would that affect your ability to be fair and judge these two police officers, who are testifying here today, any different if they were two people from Centerre Bank and Trust?
JUROR CARROLL: No.
[PROSECUTOR]: I realize this is a tedious process. And I’ll try to finish up as soon as I possibly can.
The state is going to call three or four witnesses. The police officers are Detective Franklin, Detective Charles Douglas and perhaps a police officer George Rat-termann. Anyone think they know any one of those individuals?
JUROR CARROLL: I believe I’ve met Rattermann if it’s the same Rattermann.
[PROSECUTOR]: Pardon me?
JUROR CARROLL: If it’s the same Rattermann, his wife belongs to the Police Wife’s Association.
[PROSECUTOR]: It’s a George Rat-termann.
JUROR CARROLL: It sounds familiar, yeah.
[PROSECUTOR]: Do you know whether you’ve met him personally or not?
JUROR CARROLL: I could have at, you know, the Police Wife’s Luncheon or the ball or something.
[PROSECUTOR]: If, in fact, it is someone that you have met before, could you be fair and impartial with regard to his testimony?
[345]*345JUROR CARROLL: Yes.
[PROSECUTOR]: Any other detectives that I mentioned?
JUROR CARROLL: Don’t recall their names, (emphasis added)

Defendant’s counsel did not question ve-nire person Carroll nor did the court. Defense counsel told the court, “[r]egard Juror 701, Elaine Carroll, she’s the wife of a police officer. I think she’s stated — she first stated she didn’t know if she could be fair. She knows — she thinks she knows Police Officer Rattermann or at least his wife. I request she be struck for cause.” The prosecutor opposed the motion on the ground that “she could judge their testimony as she would a — judge anyone else’s.” The court ruled as follows: “Her answers are somewhat confusing but based on the last response, which I understood that she could be fair and even if she knew Ratter-mann’s wife, wouldn’t affect her decision. Therefore I’ll overrule your motion.” The court later acknowledged that defense counsel had made his record on this issue and the issue was preserved in defendant’s motion for new trial.

After the present case was tried our supreme court, in a divided opinion, reversed and remanded for new trial on a similar issue. State v. Draper, 675 S.W.2d 863 (Mo. banc 1984). Judge Blackmar dissented but noted, “I must, however, express my impatience at the practice of judges, especially those in urban areas, in overruling challenges for cause when the juror may have expressed tentative thoughts which give occasion for concern.” 675 S.W.2d at 868. This court concurs with Judge Blackmar’s sentiment. We find that defendant was denied the right to a full panel of qualified veniremen.

In this case the state’s proof consisted of the testimony of two police officers. On October 19,1983 the officers were assigned to the Vice Narcotics Division for the St. Louis Police Department. They were in civilian clothes and were conducting an early morning surveillance of a package liquor store. Detective Franklin was in an unmarked police car on the north side of Lillian immediately across the street from the liquor store. From that location he observed a man enter J & M Cleaners which was located west of the liquor store and to the left front of the police car. He saw an individual open a window screen and enter the cleaners through a window facing Lillian. He notified his partner, Detective Douglas, of the problem. As he approached the cleaners he saw sixteen pairs of jeans being thrown out the window. Detective Franklin placed the individual under arrest as he was climbing out the window. Detective Douglas saw the jeans coming out the window and observed the arrest. Both men noted that defendant had his hands covered with white socks. In addition to this evidence the state offered the testimony of the property manager to confirm that the building was locked and that defendant had no permission to enter.

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State v. Jones, 692 S.W.2d 343, 1985 Mo. App. LEXIS 4053 (Mo. Ct. App. 1985).

692 S.W.2d 343 (State v. Jones) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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