State v. Tidwell

726 S.W.2d 380, 1987 Mo. App. LEXIS 3518
CourtMissouri Court of Appeals
DecidedJanuary 20, 1987
DocketNo. WD 37719
StatusPublished
Cited by3 cases

This text of 726 S.W.2d 380 (State v. Tidwell) 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. Tidwell, 726 S.W.2d 380, 1987 Mo. App. LEXIS 3518 (Mo. Ct. App. 1987).

Opinion

PRITCHARD, Presiding Judge.

By the verdict of a jury, appellant was found guilty of robbery in the first degree, § 569.020, RSMo 1978, and of armed criminal action, § 571.015, RSMo. He was sentenced, respectively to 30 years and to life imprisonment in the Division of Corrections, to run consecutively.

The sufficiency of the state’s evidence is not questioned. Suffice it to say that on May 21, 1985, the Midway Pharmacy, 303 Blue Ridge, Independence, Missouri, was robbed by two men, one of them using a gun. The pharmacist, George Underwood, and his niece, Denise Underwood, were able to observe appellant during the robbery and identified him during the trial.

The first point presented is that the trial court erred in overruling the motion for new trial because the jury foreman, Galen Young, failed to disclose information on voir dire examination which affected appellant’s right to make intelligent use of his peremptory challenges. The state inquired of the panel whether anyone or anyone close to them had been a victim of a robbery. Two, other than Young, responded. No venire person responded to a further question of whether anyone had been a victim of any type of crime. Appellant’s counsel then asked if any member had been a victim of a burglary, and Young responded that his home had been burglarized in 1981 when he was not home, but there was nothing about that fact which would make it hard or difficult for him to sit on the jury and give both sides a fair trial. There was no response to a question as to whether anyone had strong feelings about guns or the use of them in our society which would make it difficult for them to remain fair and impartial.

Then, after the trial, a conversation was had between Young and three lawyers from the Public Defender’s office, in the courthouse elevator and behind the courthouse. According to Public Defender law clerk, Robert McNemar, Young then stated that he would never forget the faces of the S.O.B.s who pointed weapons at him on two prior occasions, but he thought that was irrelevant when asked earlier, intimating that he made a conscious decision that it was irrelevant. On cross-examination, McNemar testified that Young did not say he intentionally concealed the matter in voir dire.

Young refused to sign an affidavit presented to him on behalf of appellant, but did sign a lengthy one which was presented in the hearing on the motion for new trial. He stated that the two prior situations did not even come into his mind at the time of the question on voir dire. [382]*382The first occurred 17 years ago when he was with an individual who became verbally abusive toward another person, and Young heard the noise of a sliding action of a .45 caliber weapon coming from the other person’s car. The second was a disturbance between a husband and wife. The husband telephoned Young and threatened the wife, and came over with a shotgun in his hands. On neither occasion was anyone injured, the police were not called, and no criminal charges were filed against anyone. Young did not consider that he was the victim on those two times; he did not mention them (during voir dire) because he did not remember them at the time; and there was no intentional concealment of the facts or a willful withholding of vital information.

Appellant is correct in maintaining that it is the duty of a prospective juror during voir dire to fully, fairly and truthfully answer all questions directed to him as a member of the panel. However, as was said further in State v. Jackson, 412 S.W.2d 428, 432 (Mo.1967), “[T]he question of what result should follow the failure of a juror to correctly answer a question touching his qualifications depends upon whether or not he was guilty of an intentional concealment. Primarily, the determination of that question must be left to the sound discretion of the trial court.” See also State v. McGinnis, 622 S.W.2d 416 (Mo.App.1981); State v. Gilmore, 681 S.W.2d 934, 944 (Mo. banc 1984); and State v. Smith, 649 S.W.2d 417 (Mo. banc 1983). In this case no intentional concealment is shown, as by an affidavit from the juror. See State v. Salkil, 649 S.W.2d 509, 516[9] (Mo.App.1983). Here, Foreman Young did not remember the two prior incidents at the time of voir dire. The questions put to the panel concerned being victims of crimes, and Young was not a victim in either of the two incidents, which he stated caused him to believe they were irrelevant. Although he did not respond to the question as to strong feelings about guns or their use, that question was connected to the further inquiry as to whether that would make it difficult to remain fair and impartial. There was no intentional concealment of relevant facts here, and the trial court did not err in refusing to grant a new trial on that allegation. Point I is overruled.

Appellant called as an alibi witness his employer, Ray Ridinger. During cross-examination of Ridinger, the state asked a series of questions concerning unemployment compensation, and then asked him if he had provided the gun in this case. Prompt objection was made as being highly prejudicial concerning extrinsic matters, and as having no good faith. That objection was not based upon the state’s failure to provide discovery upon the matter, but that contention was contained in appellant’s motion for new trial and is here presented. In this situation, the discovery issue will be reviewed under the plain error rule.

Appellant’s request for discovery (here paraphrased) included all items of information which in any manner could be expected to aid him in ascertaining the truth of any matter affecting the cause; statements of all persons who have been interviewed by an agent of the state in connection with the subject matter of the cause whom the state does not presently intend to call at trial; the memoranda or summaries of any oral statement made to an agent of the state by any person in connection with the subject matter of the cause, whether if in writing has been signed or approved in writing, or which relates to the proposed subject matter of the direct testimony of the witness at trial; the statements of persons or memo-randa or recordings of any oral statement pertinent to the subject matter whether or not made to an agent of the state; and the names and addresses of all persons who may have some knowledge of the facts of the case.

These requests would be broad enough to require discovery of matters bearing on the credibility of alibi witness, Ridinger, if allowable under discovery Rule 25.03. A reading of that rule shows that the appellant’s requests were beyond its scope. It relates to witnesses, documents, transcripts, and other matters which the state intends to introduce as [383]*383evidence at trial, including matters which to negate guilt, mitigate the offense or reduce the punishment. Here, nothing is covered as to statements made by persons to an agent of the state and others, which it would introduce at trial. There was, therefore, no onus upon the state, relating to an ongoing investigation of the state as to any implication of Ridinger in a separate criminal action to reveal the requested matters.

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Related

State v. McKee
856 S.W.2d 685 (Missouri Court of Appeals, 1993)
Tidwell v. State
784 S.W.2d 645 (Missouri Court of Appeals, 1990)
State v. Brock
778 S.W.2d 13 (Missouri Court of Appeals, 1989)

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Bluebook (online)
726 S.W.2d 380, 1987 Mo. App. LEXIS 3518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tidwell-moctapp-1987.