State v. Stewart

859 S.W.2d 913, 1993 Mo. App. LEXIS 1175, 1993 WL 286812
Missouri Court of Appeals·Decided August 3, 1993·No. Nos. 61051, 62695·Published·Cited by 5 cases

Opinion

GARY M. GAERTNER, Presiding Judge.

Appellant, Curtis Stewart, appeals his jury conviction for murder in the first degree, RSMo § 565.020 (1986), two counts of armed criminal action, RSMo § 571.015 (1986), and felony assault, RSMo § 565.050 (1986), in the Circuit Court of the City of St. Louis. Appellant was sentenced to life imprisonment without parole on the first degree murder conviction, fifty years’ imprisonment on each count of armed criminal action, and fifteen years’ imprisonment on the felony assault count. Appellant also appeals the denial of his postconviction relief motion after an evidentiary hearing.

On September 10, 1990, security officers Robert Stallings and Jerry Sansoucie were patrolling Laclede Town Housing Complex in Sansoucie’s private automobile. At 8:45 p.m., as the officers drove past the 3000 block of Lawton, they were ambushed by assailants firing .22 caliber weapons. A total of seventeen bullets fired from two different weapons struck the officers’ vehicle. Officer Sansoucie suffered bullet wounds to the head and arm and died the next day. Officer Stallings was injured when the officers’ car subsequently crashed into a vacant building.

In the light most favorable to the verdict, the evidence established that two days before the murder, Sansoucie spotted appellant entering Laclede Town riding on his bicycle. Sansoucie alerted other security guards to the fact that appellant was not allowed in Laclede Town, and another security officer arrested appellant. At the time of his arrest, appellant threatened the guards, and specifically threatened Sansou-cie.

[915]*915On the evening of the murder, appellant and Victor Harper went to Kenneth Dotson’s apartment looking for Dotson’s brother. Unable to locate the brother, appellant and Harper informed Dotson where weapons could be located in the building and instructed Dotson to retrieve them. Dotson complied and followed appellant and Harper to a vacant building where he watched them load the weapons. The three then went to the murder scene, where they positioned themselves in perches in the windows of separate vacant apartments.

Dotson saw shots fired at the officers’ car as it passed by and subsequently crashed. He saw Harper fire and heard appellant firing from the next apartment. As appellant and Harper fled, Dotson heard appellant say, “They chased me out of here again, man, this [is] our set.” Dotson later saw appellant in the city jail, where appellant pressured him, “I don’t know nothing about no weapons or no guns, and you don’t know nothing either.” Appellant added to the effect, “without guns, they ain’t got no evidence no way.”

On the day of the murder, Robert Rice, who had known appellant for several years, was in Laclede Town visiting his girlfriend. Three or four hours before the murder, Rice observed Sansoucie and other security guards chasing appellant and appellant’s codefendant, Victor Harper. Rice heard appellant proclaim he was “tired of him” and that he was “going to get him.” That evening, after hearing numerous gunshots, Rice observed appellant and Harper carrying rifles. Thirty minutes later, Rice saw appellant, Harper, and appellant’s brother, Michael Stewart, riding in appellant’s mother’s car. Rice informed appellant that police were looking for appellant and Harper. The occupants of the car just smiled and laughed.

Chris Harper, brother of Victor Harper, admitted to police that on the day of the murder, he went to K-Mart with appellant to buy bullets. According to K-Mart’s records, the type of bullets Harper claimed they had bought were in fact, purchased at K-Mart at the time in question. However, at trial, Chris Harper changed his story, claiming he had just made this up. During his testimony, Chris Harper also admitted telling police that appellant and Victor Harper were at the shooting scene with rifles at the time of the murder. Harper claimed he had also fabricated this fact. Between the time of his admissions to police and his testimony at trial, Chris Harper was incarcerated in the same facility as appellant. Harper saw appellant at the facility, though he claimed he never spoke to him. During the same period, Chris spoke to members of his family concerning appellant’s trial.

The defense presented Anthony Cooper as a witness. Cooper claimed he was with appellant at Blumeyer Housing Complex in a different part of town on September 10, 1990. Cooper asserted that appellant remained with him until appellant’s brother came to pick him up.

For his part, appellant testified that he was at Laclede Town earlier in the day, but that he left for Blumeyer where he saw his girlfriend and Anthony Cooper. Appellant claimed he then left Blumeyer and flagged down his brother who was driving by. Appellant asserted the two of them went to Barnes Hospital to visit a friend, and then to Victor Harper’s girlfriend’s house. He professed Victor came by thirty minutes later and started talking about how a security guard had been shot. Later, he maintained, his brother took him “straight home.”

A jury found appellant guilty on all charges. On October 25, 1991, the Honorable Charles D. Kitchin sentenced appellant to consecutive terms of life without parole plus 115 years.

On May 11, 1992, appellant filed a pro se Rule 29.15 motion in the Circuit Court of the City of St. Louis. Upon appointment of counsel, an amended Rule 29.15 motion was filed on July 9, 1992. On August 11, 1992, Judge Kitchin denied appellant’s motion after an evidentiary hearing. This consoli[916]*916dated appeal followed.1

Appellant’s first contention on appeal is that the trial court erred in failing to strike an unqualified venireperson for cause. Because of this, appellant contends he was forced to use a peremptory strike to remove the venireperson. Appellant claims that Stephen Welby, a venireperson, had recently graduated from law school, and was to be sworn in as a licensed attorney within one week. According to appellant, then, but for a “mere technicality,” Welby was a licensed attorney. We disagree.

We note that a defendant is entitled to a full panel of qualified jurors before he makes peremptory challenges. State v. Ervin, 835 S.W.2d 905, 915 (Mo. banc 1992). Even if an unqualified juror does not actually serve, it is prejudicial error to fail to sustain a meritorious challenge for cause. Id. However, the trial court has broad discretion in determining the qualifications of prospective jurors and its ruling will not be disturbed unless it is clearly erroneous. Id.

According to Missouri statute, several classes of persons may not sit as jurors:

The following persons shall be disqualified from serving as a petit or grand juror:
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(7) Any licensed attorney at law ...

RSMo § 494.425 (1989).

Venireperson Welby clearly did not fit within the proscriptions of the statute. Had the legislature meant to disqualify all those who have graduated from law school, it could have done'so. The legislature clearly limited disqualification to those attorneys who are licensed, which the venire-person in question was not. The licensing requirement appellant characterizes as a “mere technicality” represents the difference between a person practicing law legally, and a person in criminal violation of Missouri statutes. See RSMo § 484.020 (1986); In re H_ S_, 236 Mo.App.

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State v. Stewart, 859 S.W.2d 913, 1993 Mo. App. LEXIS 1175, 1993 WL 286812 (Mo. Ct. App. 1993).

859 S.W.2d 913 (State v. Stewart) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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