State v. Moorehead

875 S.W.2d 915, 1994 Mo. App. LEXIS 741
CourtMissouri Court of Appeals
DecidedMay 10, 1994
DocketNos. 63665, 64939
StatusPublished
Cited by7 cases

This text of 875 S.W.2d 915 (State v. Moorehead) 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. Moorehead, 875 S.W.2d 915, 1994 Mo. App. LEXIS 741 (Mo. Ct. App. 1994).

Opinion

CRIST, Judge.

This is a consolidated appeal. Defendant directly appeals his conviction for sale of a controlled substance in violation of § 195.211, RSMo 1986. He also appeals the denial of his Rule 29.15 motion for post-conviction review without an evidentiary hearing. We affirm.

Defendant does not challenge the sufficiency of the evidence to convict him. Therefore, only a brief description of the facts is necessary. On June 29, 1992, at approximately 4:50 p.m., Detective Thomas Llewellyn was working undercover for the City of St. Louis Police Department, attempting to engage people in known drug areas of St. Louis in drug deals. On that date, Detective Llewellyn was approached by Kendrick MacArthur, who asked him if he was looking for drugs. When Llewellyn responded affirmatively, MacArthur took Llewellyn to another location where Defendant sold Llewellyn a rock of crack cocaine for seventeen dollars. Defendant was subsequently arrested after a brief chase.

[917]*917On July 80, 1992, the grand jury indicted Defendant for sale of a controlled substance. After trial on February 18-19, 1993, a jury convicted Defendant. The trial court sentenced him as a prior and persistent offender and prior drug offender to twenty years’ imprisonment.

On July 16, 1998, Defendant filed a pro se Rule 29.15 motion for post-conviction review. Counsel was appointed and she amended Defendant’s motion. The motion court denied Defendant’s points without an evidentiary hearing in a lengthy opinion.

In his first point, Defendant argues the trial court abused its discretion by striking for cause Venireperson Lazarus Johnson because Johnson did not intentionally fail to disclose a prior arrest during voir dire.

During voir dire, the State questioned the venire panel regarding their prior arrests. At that time, Venireperson Johnson stated his only arrest was for missing a court date on a traffic violation. During further questioning regarding prior arrests, the prosecutor approached the trial bench and indicated he believed Johnson was failing to disclose a prior arrest in 1992 for third degree assault. The court decided to wait until the end of voir dire to question Johnson. Following this conversation, the prosecutor directly asked Venireperson Johnson if he had ever been arrested for anything other than traffic tickets. Johnson indicated he only had prior arrests as a juvenile, not as an adult. Johnson was 39 years of age.

FoEowing voir dire, Venireperson Johnson was asked into the trial judge’s chambers where he was questioned about this prior arrest. He admitted the incident, which had arisen out of a fight with his girlfriend. However, Johnson stated he beheved he had not actuahy been arrested, because he had turned himself in to the pohce. However, upon further questioning, he stated he had gone through booking procedure, had been fingerprinted, had been confined for about three hours, and then was released on his own recognizance. In sustaining the State’s motion to strike for cause, the trial court stated:

I find it hard to beEeve that anybody that went through a booking procedure would not then think they’re being arrested. He apparently was booked, he was fingerprinted and his mug shot was taken, and at that point any normal person would beEeve they had been arrested. I do not understand how he could not remember that on voir dire and bring it up.
So I’m going to find I don’t beEeve his statement in here that he forgot about it and that he beheved it was not an arrest and that’s why he didn’t bring it up, and it’s an intentional nondisclosure....

The decision regarding whether a venireperson has intentionaEy concealed information during voir dire is within the trial court’s discretion and wiE not be overturned on appeal unless we are able to conclude an abuse of discretion unmistakably occurred. State v. Martin, 755 S.W.2d 337, 339[1] (Mo.App.1988). Moreover, an appeEate court should grant extreme deference to the abiEty of the trial court to gauge the demeanor and eredibiEty of the venirepersons and the decision of whether a particular venireperson intentionaEy concealed a fact. Washburn v. Medical Care Group, 803 S.W.2d 77, 83 (Mo.App.1990).

Prospective jurors have a duty to answer aE voir dire questions truthftdly and fairly so that his or her qualifications may be assessed and chaEenges utilized inteEigently. State v. Shelby, 782 S.W.2d 703, 704 (Mo.App.1989). Questions regarding nondisclosure normaEy arise after trial in a motion for new trial and concern actual jurors in the case. However, the law developed under those situations is equaEy appEcable where nondisclosure by a venireperson is revealed prior to trial and he or she is stricken for cause.

A venireperson may be stricken for cause where it is found he or she intentionally concealed the truth to a question explored on voir dire. Cf. State v. Hatcher, 835 S.W.2d 340, 343[3] (Mo.App.1992); State v. Endres, 698 S.W.2d 591, 595[8] (Mo.App.1985). Intentional nondisclosure occurs “where there exists no reasonable inabiEty to comprehend the information asked of the [918]*918juror and the juror actually remembers the experience or the experience was of such significance that his purported forgetfulness is unreasonable.” Martin, 755 S.W.2d at 340[5]; Moore v. Jackson, 812 S.W.2d 240, 243[1] (Mo.App.1991).

Defendant contends the record shows Johnson did not intentionally conceal the truth, but believed he had not been arrested. While Johnson did state he did not believe he was actually arrested, the court found this to be incredible. We agree. It is not an unmistakable abuse of discretion for the trial court to believe Johnson did realize he had been arrested when he knew charges were pending against him, he turned himself into the police, he was booked and fingerprinted, and then released on his own recognizance. We defer to the trial court’s determination that Johnson’s belief he had not been arrested was unreasonable.

Furthermore, Defendant is unable to show he was prejudiced by the strike because he has not shown the jury empaneled was not impartial. State v. Becton, 841 S.W.2d 315, 319[4] (Mo.App.1992). Point denied.

In Point II, Defendant contends the trial court plainly erred in allowing the State to improperly personalize the crime to the jurors in its closing argument.

As conceded, Defendant failed to preserve this alleged error in his motion for new trial and our review is only for plain error. Rule 29.11(d); Rule 29.12(b). Appellate courts should rarely grant relief for assertions of plain error in a closing argument. State v. Crenshaw, 852 S.W.2d 181, 187[8] (Mo.App.1993). “Absent objection and request for relief, a trial court’s options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.” Id. at 187[7].

The portion of the closing which Defendant now challenges is as follows:

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Related

State v. McGinness
215 S.W.3d 322 (Missouri Court of Appeals, 2007)
State v. Logan
941 S.W.2d 728 (Missouri Court of Appeals, 1997)
State v. Sumlin
915 S.W.2d 366 (Missouri Court of Appeals, 1996)
State v. Madewell
904 S.W.2d 66 (Missouri Court of Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
875 S.W.2d 915, 1994 Mo. App. LEXIS 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moorehead-moctapp-1994.