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June 14, 1982


From the Circuit Court of Gasconade County; Criminal Appeal; Judge John C. Brackmann.

Motion for Rehearing Denied July 6, 1982.

Before Morgan, P.j., Bardgett, Rendlen, JJ., Seay, Sp.J., Parrish, Sp.J.

The opinion of the court was delivered by: Parrish

Appellant was convicted of capital murder of Sophie Marie Barerra and sentenced to life imprisonment without eligibility for probation or parole until he serves a minimum of fifty years of that sentence.

Sophie Marie Barrera died January 14, 1980, when the automobile she was driving exploded from a bomb blast. The explosion occurred about 5:00 p.m. on that date.

Previously, on March 20, 1979, another bomb, partially detonated, had been found where Mrs. Barrera parked her automobile. Dynamite was used as the explosive in the first bomb. The dynamite had become wet and only partially exploded.

Following the explosion which caused the death of Mrs. Barrera, pieces of a pressure switch were found which had been a part of the fatal bomb. That pressure switch was similar to one found in the remains from the other partially exploded bomb. The technology and expertise in the design and construction of the two pressure switches were the same. However, no determination was made regarding the type of explosives which were a part of the second bomb.

Sophie Marie Barrera had owned and operated a dental laboratory in St. Louis. Appellant is a dentist who practiced in St. Louis and was a customer of Mrs. Barrera. Since March, 1978, Appellant had owed Mrs. Barrera $14,504.37 for laboratory services. Mrs. Barrera had brought a civil action against Appellant in an attempt to collect the amount owed. She obtained a default inquiry against Dr. Engleman on March 9, 1979.

Appellant had been angry about the lawsuit. He had made threats against Mrs. Barrera to his former wife, Ruth Engleman.

On March 21, 1979, one day after the first bombing attempt, Appellant admitted to Ruth that he was responsible for that bombing.

After the first bombing attempt Mrs. Barrera discussed the civil suit with her attorney. The attorney then attempted to negotiate a settlement rather than pursue a default judgment based upon the prior default inquiry. The dispute was not settled but Mrs. Barrera did not thereafter take the steps necessary to secure a default judgment. The civil suit had been scheduled for trial the week of January 21, 1980.

After Mrs. Barrera's death, Ruth Engleman contacted agents of the Alcohol, Tobacco and Firearms Section of the United States Treasury Department. She told them of her former husband's admission that he had been responsible for the first attempted bombing of the Barrera automobile. Ruth agreed to assist in an investigation of Appellant's possible involvement in the bombing which had killed Mrs. Barrera. Ruth consented to the making of tape recordings of conversations she expected to have with Dr. Engleman. Later, during the latter part of January, 1980, and during February, 1980, several conversations between Ruth and Appellant were tape recorded.

The tape recordings were accomplished in two ways.

One series of recordings was made with a transmitting device which Ruth wore on her person. This device transmitted a signal to receiving units monitored by federal agents where recording devices were utilized to make tape recordings of the conversations. Some of these recordings were of conversations which took place at Ruth's residence. Others were of conversations at a restaurant frequented by Ruth and Dr. Engleman.

A second series of recordings was made by a recording device which was placed inside Ruth's residence. Those conversations were not monitored at any outside source but were recorded by the equipment in the residence.

In the tape recorded conversations, Appellant made various references about Mrs. Barrera and the bombing which resulted in her death as well as the earlier attempted bombing. Among those references were admitted acknowledgments of having expertise with explosive devices and receiving financial benefits as a result of Mrs. Barrera's death.

At trial, over Appellant's objections, portions of the various tape recordings were admitted as evidence and played to the jury. Transcripts of two of those recordings were provided the jury for reference during the playing of the recordings.

The trial first commenced in November, 1980. A jury was selected and sequestered and some evidence presented. However, on the morning following the first night for which the jury was sequestered, mistrial was declared due to the sheriff failing to properly sequester the jury during the prior evening. The mistrial was granted upon defendant's motion. The prosecutor made no objection to the request for mistrial.

Thereafter, the trial from which Appellant now appeals was held in January, 1981.

Appellant asserts that he was denied a fair trial for several reasons. He contends that he was subjected to double jeopardy by the earlier attempt at trial which resulted in mistrial. He further contends that error was committed by the trial court during jury selection by failing to grant two of his challenges for cause and by making certain remarks to the jury which he asserts were prejudicial. Appellant also contends that the admission in evidence of certain photographs and the tape recordings of portions of conversations between him and his former wife was error and, further, that the trial court erred in refusing to give the alibi instruction, MAI-CR 3.01, to the jury.

Indictment for capital murder was returned in the Circuit Court in the City of St. Louis. The case was tried in Gasconade County following change of venue.


Double Jeopardy

Appellant asserts that his conviction should be reversed and he should be forever discharged for the reason that he was once previously placed in jeopardy for the offense which is the basis of this appeal. Appellant contends his trial was barred by the Fifth Amendment of the United States Constitution and by Article I, Section 19 of the Missouri Constitution.

On November 12, 1980, this case was for trial. A jury was selected and testimony from five witnesses received. The jury, having been sequestered, retired in the custody of the sheriff for the evening.

The following morning, upon court reconvening, Appellant moved for mistrial for the reason that the sheriff failed to keep the jury together during the prior evening. The prosecutor did not oppose the request and mistrial was declared.

Appellant acknowledges that double jeopardy does not normally arise when a mistrial is declared upon request of a defendant. However, Appellant contends that since no inquiry was made as to whether he personally consented to his counsel's request for mistrial, any subsequent trial is barred. He relies upon Madison v. State, 533 S.W.2d 252 (Mo. App. 1976), for that proposition.

We do not agree that Madison stands for the proposition for which it is cited by Appellant. In Madison, which was an appeal of a Rule 27.26 proceeding, in denying the movant the relief he sought, the court alluded to the fact that the movant had personally consented, on the record at his first trial, to a request for mistrial made by his counsel. The issue presented in Madison was whether the consent to the previous mistrial was coerced by the trial court and by misconduct by the prosecutor. The holding in Madison is of no significance in this case.

There was no showing that the failure to properly sequester the jury during Appellant's first trial was motivated by bad faith or predicated by any desire to harass Appellant. The holding in United States v. Dintz, 424 U.S. 600, 611-612, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), which would bar retrial had the earlier mistrial been so motivated is, therefore, not applicable. Appellant was not placed in double jeopardy for the offense which is the basis for this appeal.


Jury Selection and Remarks by Trial Judge

Appellant assigns as error the trial court's failure to excuse two veniremen for cause during voir dire.

During voir dire appellant challenged panel members Evelyn Brinkman and Henry Linhardt for cause. The trial court denied both challenges.

With respect to Mrs. Brinkman, Appellant asserts that the inquiry on voir dire disclosed that Mrs. Brinkman had heard about the case from radio and television reports and had discussed the case with members of her family before she was summoned as a member of the panel. Appellant apparently asserts that Mrs. Brinkman had formed preconceived opinions regarding Appellant's guilt or innocence which required her to be excused for cause. Appellant specifically refers to statements made by Mrs. Brinkman during voir dire wherein she indicated that members of her family had expressed an opinion that Appellant was guilty of the offense charged. He makes reference to her stated belief that she could, with some difficulty, set aside the information she had previously received regarding the case if selected as a juror and to her further comment: ". . . I would rather not have to make that decision if any way possible."

As to Mr. Linhardt, Appellant's complaints are threefold. First, Appellant complains that Mr. Linhardt had heard the case discussed by others and had heard news media reports concerning the trial. Secondly, Appellant complains that Mr. Linhardt indicated that the fact the offense charged was capital murder would make it difficult or impossible for him to sit as a fair and impartial juror. Thirdly, Appellant raises an issue regarding a response by Mr. Linhardt that the panel member might not "feel comfortable" having a relative or close friend tried by a jury composed of persons with points of view like those he possessed.

Appellant asserts that the trial court should have granted Appellant's challenges for cause of Mrs. Brinkman and Mr. Linhardt. He asserts that the trial court abused its discretion in not striking those veniremen for cause and, therefore, that he was denied a qualified panel from which he could exercise his peremptory challenges.

The principles governing jury selection have been clearly enunciated. A defendant in a criminal case is entitled to a qualified panel of veniremen and the statutory number of peremptory challenges. An accused must be afforded a full panel of qualified jurors from which to make peremptory challenges. State v. Morrison, 557 S.W.2d 445, 446 (Mo. banc 1977), citing State v. Thompson, 541 S.W.2d 16, 17 (Mo. App. 1976); State v. Kirkpatrick, 428 S.W.2d 513, 516 (Mo. 1968). For a trial court to refuse to sustain a valid challenge for cause constitutes an abuse of discretion and reversible error. State v. Land, 478 S.W.2d 290, 292-293 (Mo. 1972); State v. Holliman, 529 S.W.2d 932, 941 (Mo. App. 1975).

However, the determination as to whether a challenge for cause should be granted can be made only upon the facts of a particular case. This court must review the facts upon which Appellant's challenges are based and determine whether or not there was an abuse of discretion. State v. Land, (supra) at 292. Such a review is undertaken with the recognition that the trial court is in a better position to determine challenges for cause as he has the opportunity to observe the demeanor of each challenged venireman and, for that reason, all doubts as to the trial court's findings should be resolved in its favor. State v. Wilson, 436 S.W.2d 633, 638 (Mo. 1969); State v. McGrew, 534 S.W.2d 549, 551 (Mo. App. 1976). "The trial court's determination will be rejected only upon a clear showing of abuse of discretion." State v. Olinghouse, 605 S.W.2d 58, 69 (Mo. banc 1980), citing State v. DeClue, 400 S.W.2d 50, 57 (Mo. 1966).

The determination of whether the trial court's failure to grant Appellant's challenges for cause of Mrs. Brinkman and Mr. Linhardt must be based upon review of the responses of those veniremen during juror selection. A panel member's qualifications must be determined not by a part of what he or she said but by the whole examination of each. State v. Wilson, 436 S.W.2d 633, 638 (Mo. 1969). See also State v. Stewart, 596 S.W.2d 758, 760 (Mo. App. 1980).

Each juror was examined at length during juror selection. The trial transcript contains thirteen pages of inquiry of Mr. Linhardt and twelve pages of inquiry of Mrs. Brinkman. Those inquiries and responses have been carefully reviewed.

Although Mrs. Brinkman acknowledged that the case had been discussed by members of her household during her presence and that some of those household members expressed opinions that defendant was guilty, she further stated the belief that she could set aside what others had said in her presence and decide the case on the basis of the evidence presented at trial.

Mr. Linhardt gave similar responses to questions about previous comments concerning the trial. Mr. Linhardt acknowledged having heard the case discussed by others although he had heard no opinions expressed as to Appellant's guilt or innocence. He had heard television or radio reports about the case. Nevertheless, Mr. Linhardt stated the belief that he could follow the court's instructions and he knew of no ...

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