State v. Taylor

643 S.W.2d 14, 1982 Mo. App. LEXIS 3764
Missouri Court of Appeals·Decided September 14, 1982·No. No. 44723·Published·Cited by 3 cases

Opinions

GUNN, Judge.

Defendant appeals his jury tried convictions of first degree burglary, second degree assault, two counts of sexual abuse in the first degree and two counts of felonious restraint. His appeal attacks the trial court’s overruling his challenge to two ven-ire persons and the St. Louis City grand jury selection process. We find no error and affirm the judgment.

Defendant does not challenge the sufficiency of the evidence. The jury could readily find that defendant broke into the home of a woman and sexually abused her and her twelve year old daughter. Not content with this malbehavior, defendant swung a shotgun at the woman and other guests in her home.

At trial, defendant testified and owned up to a substantial variety of prior convictions.

Defendant complains of the trial court’s refusal to strike two venirepersons for cause, thus forcing him to use peremptory challenges. He first contends that a venire-person should have been excused for cause, since she was acquainted with three police officers who had been endorsed by the state as witnesses.

At the outset, we note the basic principles governing jury selection. A defendant is entitled to a full panel of qualified venire-persons and the statutory number of peremptory challenges. State v. Engleman, 634 S.W.2d 466, 471 (Mo.1982). But the trial court by reason of its superior coign of vantage has large discretion in determining the qualifications of a venireperson. State v. Royal, 610 S.W.2d 946, 950 (Mo. banc 1981). Therefore, its ruling on a challenge for cause will not be disturbed in the absence of a clear abuse of discretion, with any doubt as to the propriety of such ruling to be resolved in the trial court’s favor. State v. Daniels, 629 S.W.2d 627, 630 (Mo.App.1982).

Competent jurors must be ready to assume their important function with open minds and free from bias or prejudice. State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981). But unless there is some fact or admission which the appellate court can reasonably view as disclosing prejudice despite spoken word to the contrary, the trial court should not be convicted of an abuse of discretion in overruling a challenge for cause. State v. Holliman, 529 S.W.2d 932, 939 (Mo.App.1975).

[16] The venireperson’s mere acquaintance with police officers endorsed by the state as witnesses does not alone disqualify her as a juror. State v. Martin, 643 S.W.2d 63, No. 44429 (Mo.App.E.D. Aug. 17, 1982); State v. Dodson, 551 S.W.2d 932, 934 (Mo.App.1977), cert. denied, 434 U.S. 1071, 98 S.Ct. 1255, 55 L.Ed.2d 774 (1978). Although the officers were assigned to the same district as her husband, she knew them only socially. She stated unreservedly that her opinion or acquaintance of the officers would in no way influence her in regard to any determination about their testimony. As she was never uncertain or equivocal in her ability to be impartial, see State v. Carter, 544 S.W.2d 334, 337 (Mo.App.1976), we find no appearance of bias or prejudice. Thus, there was no error in the trial court’s overruling the challenge for cause.

Defendant also contends that another venireperson should have been excused for cause. And though the second situation presents a closer question than the first, still we find no reversible error.

The second venireperson was asked whether the fact that defendant or a witness had a prior conviction would bear influence on her. Her response was initially affirmative but later cured as shown:

MRS. ADELMAN-ADLER [Defendant’s counsel]: Is there anyone here who thinks that if they learned during the course of this trial that a witness or the defendant had previously been convicted of some crime that they would feel that if he was guilty before, he’s probably guilty of something now? Mrs. Lucchesi, you feel that way?
MRS. LUCCHESI [Venireperson]: It’s difficult to say. I would have to weight it. I have feelings of it, yes.
MRS. ADELMAN-ADLER: You feel that if someone has a prior record that they are more likely to be guilty than not?
MRS. LUCCHESI: Yes.
MRS. ADELMAN-ADLER: That would influence you then in this case if you learned that that situation existed.
MRS. LUCCHESI: It could.
MRS. ADELMAN-ADLER: If you feel that it might or could influence you, you do want the defendant to get a fair trial?
MRS. LUCCHESI: Oh, yes.
MRS. ADELMAN-ADLER: If you feel that in some way you have some prejudice or some opinion that might affect you or might affect one side or the other, do you feel that you would be the fairest juror in this case?
MRS. LUCCHESI: I feel that I could be fair. I’m just telling you. I think it would be in the back of my mind.
MRS. ADELMAN-ADLER: You would have that in the back of your mind during the course of your deliberations?
MRS. LUCCHESI: Yes.
MRS. ADELMAN-ADLER: Is there anyone else who has that feeling or thinks that the fact that a person has been previously convicted would influence you in your decision on the facts in this case?
MR. MOSS [Prosecutor]: I object to that. It can be considered for the credibility of a particular witness that is testifying. Therefore, it would influence the fact.
THE COURT: In the event any evidence comes out in this case about any witness having had a conviction of some crime, the Court would instruct the jury that that fact is to be considered only as far as the believability or credibility of the witness is concerned and certainly no evidence whether or not a person is guilty of the crime that is charged here. I don’t know whether that’s in this case or not. You all understand what I’m saying? Is there anybody that couldn’t follow such an instruction, consider that only for the purpose of credibility and not with regard to the question of guilt or innocence? You understand that?
MRS. ADELMAN-ADLER: Thank you, Judge.

Following voir dire, defendant’s challenge for cause of the venireperson was over[17] ruled. We find no abuse of discretion by the trial court’s ruling in this instance.

The substance of this particular voir dire was inquiry concerning credibility of a witness having a prior record of conviction. That is a legitimate subject of concern and a relevant matter to be ultimately considered by a jury. § 491.050, RSMo (Supp. 1981).

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State v. Taylor, 643 S.W.2d 14, 1982 Mo. App. LEXIS 3764 (Mo. Ct. App. 1982).

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