State v. Stewart

517 S.W.3d 680, 2017 WL 2255256, 2017 Mo. App. LEXIS 488
CourtMissouri Court of Appeals
DecidedMay 23, 2017
DocketNo. SD 34334
StatusPublished
Cited by7 cases

This text of 517 S.W.3d 680 (State v. Stewart) 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. Stewart, 517 S.W.3d 680, 2017 WL 2255256, 2017 Mo. App. LEXIS 488 (Mo. Ct. App. 2017).

Opinion

DON E. BURRELL, J.

Kenneth A. Stewart (“Defendant”) appeals his convictions after a jury trial of two counts of endangering the welfare of a child and two related counts of armed criminal action. See sections 568.045 and 571.015.1 Defendant’s sole point claims the trial court plainly erred in denying his request to have venireperson no. 19 (“Juror 6”) removed from the panel for cause. Defendant did not present this claim to the trial court in his motion for new trial, so he seeks plain-error review under Rule 30.20, insisting that Juror 6’s subsequent service on the jury “resulted in a manifest injustice” because Juror 6 stated that “ ‘there’s no way of knowing’ ” whether “she would be fair and impartial in a case involving child endangerment.” Because the trial court’s ruling did not amount to evident, obvious, and clear error, we affirm Mov-ant’s convictions.

Governing Law and Applicable Principles of Review

“It is fundamental that a criminal defendant is entitled to a jury composed of only those who are free from any bias or prejudice,” State v. McKee, 826 S.W.2d 26, 28 (Mo. App. W.D. 1992). Specifically, “[t]he trial court must strike for cause prospective jurors when they exhibit prejudicial bias because the victim is a child.” State v. Clark, 981 S.W.2d 143, 147 (Mo. banc 1998). “If the voir dire is constitutionally sufficient, the final decisions as to which members of the venire are not impartial lies within the sound discretion of the trial court.” State v. Nicklasson, 967 S.W.2d 596, 611-12 (Mo. banc 1998).

“In determining whether plain error has, in fact, occurred—the first step in a plain error analysis—we note that generally, ‘[a] trial court’s ruling on a chai-[682]*682lenge for cause will be upheld on appeal unless it is clearly against the evidence and is a clear abuse of discretion.’ ” State v. Garrison, 276 S.W.3d 372, 376 (Mo. App. S.D. 2009) (quoting Joy v. Morrison, 254 S.W.3d 885, 888 (Mo. banc 2008)). To reverse for plain error, a reviewing court must ultimately find that manifest injustice or a miscarriage of justice has resulted from the trial court error. State v. Worthington, 8 S.W.3d 83, 87 (Mo. banc 1999). “Plain errors are those which are ‘evident, obvious, and clear.’” State v. Scurlock, 998 S.W.2d 578, 586 (Mo. App. W.D. 1999) (quoting State v. Bailey, 839 S.W.2d 657, 661 (Mo. App. W.D. 1992)). If such error appears, then (and only then) the court must determine “whether the claimed error resulted in manifest injustice or a miscarriage of justice.” Id.

Relevant Facts and Procedural Background

Defendant does not challenge the sufficiency of the evidence supporting his convictions. Thus, we relate only facts relevant to the trial court’s denial of Defendant’s challenge for cause to Juror 6.

During voir dire, the trial court informed the panel of prospective jurors that Defendant had been charged with “the offenses of endangering the welfare of two children [ (“the children”) ] and two counts of armed criminal action.” It also told the panel that “[Defendant has ple[aded] not guilty to the charges.” Each panel member was asked to answer some preliminary questions about themselves. Juror 6 stated her name, the number of years she had lived in Greene County, her marital status, that she had no children, and that she operated a dance academy. During the prosecutor’s portion of voir dire, the panel was told the names of the children and that their ages were five and seven at the time of trial.

In response to questions from defense counsel, Juror 6 disclosed that she knew another member of the panel, but she said that the other person would not “have any more influence over [her] than anybody else[.]” Juror 6 also disclosed that she had “a good friend in the St. Louis area who’s an officer with the police department^]” but she said she would not “have a hard time” telling that friend that she had found someone not guilty.

Defense counsel later asked, “Is there anybody here ... for any reason,, that you don’t think you can sit on this jury?” Juror 6 was among a group of panelists who raised their hands in response to that question. Defense counsel then called on each of those panelists, and the following is the exchange with Juror 6.

[Defense counsel]: .... Yes.
[Juror 6]: I’m [Juror 6]. I’m a CASA volunteer
[Defense counsel]: Okay. And do you think that that—your experience as being a CASA volunteer—that that would be playing in the back of your head a little bit and possibly not make you fair and impartial in this case?
[Juror 6]: I think—I think I can be objective, but I also think that with [683]*683children, it’s—it would be more emotional or—I’m trying to find the right words. I would be objective, but maybe [sic] more difficult because of the children to be objective.
[Defense counsel]: And that’s what we’re going to be dealing with, is, at the time, I believe, they were three and four years old.
So that would definitely be playing in the back of your head?
[Juror 6]: I mean, yeah. I mean, there’s no way of really knowing based on the cases that I’ve worked with and the information that will be given in the case. I—I have no way of judging how similar it would be or the possibility that it would be blank in my mind or not, I guess.
[Defense counsel]: So you don’t know?
[Juror 6]: I don’t really know.
[Defense counsel]: Okay. It might affect you; it might not?
[Juror 6]: It could; it could not. I mean, either way.
[Defense counsel]: Fair enough. Thank you.

After the conclusion of voir dire, defense counsel sought to remove Juror 6 for cause in the following exchange.

[Defense counsel]: [Juror 6]. She was a volunteer and she would also have some issues with children—with children being involved.
[Prosecutor]: So what she’s saying—I would strongly encourage the Court to keep [Juror 6]. She’s saying it’s something totally different. She said—her quote was: “I can be objective; with kids it is more emotional.”
That statement is true with everybody. It doesn’t have anything to do with her job or her being involved in CASA. So I would ask that we keep her.

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Cite This Page — Counsel Stack

Bluebook (online)
517 S.W.3d 680, 2017 WL 2255256, 2017 Mo. App. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stewart-moctapp-2017.