State v. Russ

574 S.W.2d 5, 1978 Mo. App. LEXIS 2693

• Court: Missouri Court of Appeals
• Decided: September 26, 1978
• Docket: No. 39075
• Status: Published

Opinions

CLEMENS, Presiding Judge.

Defendant has appealed his conviction for carrying a concealed weapon. (Section 564.610, RSMo.1969). He does not challenge the sufficiency of the evidence.

Defendant first contends the trial court erred in failing to declare a mistrial when the prosecutor remarked at the close of the state’s case, “as to the C.C.W. [carrying concealed weapon], the state rests.” Defendant contends this statement implied other criminal matters were pending against defendant. His objection to the statement was sustained and at his request the jury was instructed to disregard it and the prosecutor was admonished.¹ The court denied defendant’s motion for a mistrial and defendant now contends this was error. We disagree.

In the comparable case of State v. Harris, 547 S.W.2d 473[1] (Mo:1977) the court held a more harmful remark², which the trial court instructed the jury to disregard, was insufficient to warrant a holding the trial court had abused its discretion in denying a mistrial. So it is here.

Defendant also contends the trial court should have granted his challenge for cause of a juror who had served 27 years as a police officer before retirement. A former affiliation with law enforcement, standing alone, is not a ground for challenge for cause. State v. Wraggs, 512 S.W.2d 257[2] (Mo.App.1974). Here, on voir dire the juror declared he would give no greater weight to the testimony of police officers and would not be prejudiced against defendant. Nor did the juror know any of the four police officers who were the state’s sole witnesses.

Defendant further argues that the juror’s answers, “I don’t think so, no,” were equivocal and required further investigation by the trial court. We find no need for more intensive questioning simply to obtain an unqualified “no.” We defer to the opportunity of the trial court to evaluate the juror’s demeanor and its conclusion the juror conscientiously considered the questions asked of him and could serve as a disinterested juror. We find no abuse of discretion in the trial court’s ruling. See also State v. Lewis, 526 S.W.2d 49[3] (Mo.App.1975), and State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642[17] (1937).

Defendant relies on State v. Butts, 349 Mo. 213, 159 S.W.2d 790[3-6] (1942), which we find distinguishable. There, the challenged juror was a member of the Kansas City police force. The court held he should have been excluded because his superior, the chief of police, and several fellow officers would testify. Since the juror challenged here was retired he would not be exposed to the influence of the police department and the rationale of the Butts case does not apply.

Judgment affirmed.

SMITH, J., concurs. McMILLIAN, J., dissents in separate opinion.

1 . The prosecutor indicated he was merely awaiting proof of defendant’s prior conviction before closing his case.

2 . There the court clerk referred to the court file as containing “the charge of one prior conviction . . . .”