State v. Weekley

621 S.W.2d 256, 1981 Mo. LEXIS 405
CourtSupreme Court of Missouri
DecidedSeptember 8, 1981
Docket62156
StatusPublished
Cited by32 cases

This text of 621 S.W.2d 256 (State v. Weekley) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Weekley, 621 S.W.2d 256, 1981 Mo. LEXIS 405 (Mo. 1981).

Opinions

STOCKARD, Commissioner.

Jimmie Lee Weekley, appellant herein, was found guilty by a jury of murder in the, second degree. The jury was unable to agree on the punishment, and the court assessed the punishment at life imprisonment.

Appellant does not challenge the sufficiency of the evidence. We need to state only that a jury reasonably could find that on June 17, 1978 appellant shot his estranged wife with a shotgun causing her death.

By his first point appellant asserts the trial court committed prejudicial error when at the request of the State it struck for cause John Tracy, a member of the jury panel.

We need not set forth the precise questions and answers, but during the voir dire [258]*258examination venireman Tracy clearly indicated that he was not favorably disposed towards sending a defendant to prison, and that the evidence would have to be “awful strong” before he would do so. He also stated that “if [he] thought there was any doubt at all [he] wouldn’t convict him,” and that he did not “feel * * * qualified to sit in judgment on another man’s life or even a few years of his life, and if it wasn’t pretty well cut and dry, * * * [he] wouldn’t convict him.”

In determining the qualifications of a prospective juror, the trial court has very wide discretion, and the court’s ruling will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion. State v. Jones, 384 S.W.2d 554 (Mo.1964); State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977). We should also keep in mind that the trial court is in a better position, by reason of its presence and personal observation, to determine the validity of a challenge for cause than is an appellate court when reviewing the record. State v. McGrew, 534 S.W.2d 549 (Mo.App.1976); State v. Harris, 425 S.W.2d 148 (Mo.1968). The challenged venireman clearly indicated a misconception of his duties as a juror, and he also expressed a substantial doubt as to his willingness or ability to follow the law as declared by the court in its instructions. In these circumstances there was no abuse of discretion on the part of the trial court in sustaining the State’s challenge for cause.

Aside from the above, this is a case where a venireman was excused from the jury; not where it is contended that a disqualified venireman was kept on the jury panel. “When the action complained of is the striking of a juror, an appellant is not entitled to relief unless he can show that the jury finally empaneled was not impartial.” United States v. Young, 553 F.2d 1132 (1977); cert. den. 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 278 (1977).1 See also State v. Mathis, 52 N.J. 238, 245 A.2d 20 (1968); United States v. Burgard, 553 F.2d 190 (8 Cir. 1977); United States v. Marshall, 471 F.2d 1051 (D.C.Cir.1972). There is nothing in the record to show, and appellant does not contend, that the jury as finally constituted was not composed of competent, qualified, and unbiased jurors. See State v. Allison, 300 S.W. 1069 (Mo.1927). We find no merit to appellant’s first point.

The offense of which appellant was charged occurred on June 7, 1978. By his second point appellant contends that prejudicial error resulted from the giving of Instruction No. 1 which followed precisely the language of MAI-CR 2.01. That instruction was changed effective January 1, 1979 and appellant’s trial occurred thereafter. He now contends that it was prejudicial error not to give the instruction as set forth in MAI-CR2d 2.01.

We consider this contention to have been ruled by State v. Williams, 611 S.W.2d 26 (Mo. banc 1981); State v. Lute, 608 S.W.2d 381 (Mo. banc 1980); and State v. Jones, 604 S.W.2d 665 (Mo.App.1980). We see no occasion to here set forth again the reasoning of those cases. It is sufficient to say that the effect of those rulings is that the two instructions are almost identical, and the only changes pertain to use in MAI-CR 2.01 of the indefinite masculine pronoun (such as “he” and “his”) in referring to witnesses. No reasonably intelligent juror could have been confused by use in this case of MAI-CR 2.01.

By his third point appellant asserts error resulted when the trial court overruled his objections and his motion for a mistrial when the State asked appellant on cross-examination about any history of “black-out periods.” He asserts that this was “entirely irrelevant and immaterial” and was beyond the scope of the direct examination.

On direct examination appellant testified as to his activities prior to the shooting. He stated that his wife was in the mobile home and he went in and laid down on the couch, and the “only thing I know it just got dark because something right here left a hole [259]*259and everything got dark.” On cross-examination he was asked if he felt anything hit his head, and he replied, “Everything just got dark.” He was then asked whether he had any of “these blacking out periods before?” At a bench conference appellant objected to the question “as beyond the scope of the examination in chief.” The court commented that appellant had previously said “everything went dark,” and it stated that it would “allow the State a little latitude in going into that.” Appellant’s motion for a mistrial was denied. The following then occurred:

“Q. (BY MR. STEVENSON, [the prosecutor]:) Did you have any of those black-outs before?
“A. I was just trying to think. Back in ’71.
“MR. SHAW: Aw, Judge, I object to this. This is far too remote in time and beyond the scope of examination in chief. There’s certainly no relation or connection whatsoever to this case to this blow on the head.
“THE COURT: Overruled.
“Q. (BY MR. STEVENSON:) You say 1971?
“A. I had a nervous breakdown, but I didn’t. The doctor—
“MR. SHAW: May we approach the bench?
“THE COURT: Yes you may.
(THE FOLLOWING PROCEEDINGS WERE HAD AT THE BENCH BETWEEN COURT AND COUNSEL OUT OF THE HEARING OF THE JURY:)
“MR. SHAW: Defendant’s going to object to this, ask that it be stricken as non responsive to the question as beyond the scope of examination in chief. I’m going to ask the jury be admonished to disregard that.
“THE COURT: All right. We will order the last part of the answer stricken and the jury will be instructed to disregard it.
(THE FOLLOWING PROCEEDINGS WERE HAD WITHIN THE HEARING OF THE JURY:)
“THE COURT: Members of the jury, the last portion of that answer will be stricken and you will be instructed to disregard that answer.

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Bluebook (online)
621 S.W.2d 256, 1981 Mo. LEXIS 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-weekley-mo-1981.