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State v. Ess

Supreme Court of Missouri, En Banc

January 13, 2015

THOMAS A. ESS, Appellant

Argued and Submitted May 7, 2014.

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[Copyrighted Material Omitted]

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Ess was represented by Richard H. Sindel and Kathryn B. Parish of Sindel, Sindel & Noble PC in Clayton.

Ess, the state was represented by Timothy A. Blackwell of the attorney general's office in Jefferson City.

GEORGE W. DRAPER III, JUDGE. Russell, C.J., Breckenridge, Stith and Teitelman, JJ., concur; Wilson, J., concurs in part and dissents in part in separate opinion filed; Fischer, J., concurs in opinion of Wilson, J.


George W. Draper III, Judge.

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Thomas A. Ess (hereinafter, " Ess" ) appeals from the circuit court's judgment convicting him of two counts of first-degree statutory sodomy, section 566.062, RSMo 2000[1], two counts of second-degree statutory sodomy, section 566.064, and one count of attempted first-degree child molestation, section 566.067. Ess raises three points on appeal, alleging juror misconduct, instructional error, and insufficient evidence to support two of his convictions. This Court holds one juror committed misconduct through the intentional nondisclosure of a material fact related to the lawsuit, specifically that the juror formed an opinion about Ess's guilt or innocence prior to deliberations in direct contravention of the circuit court's instructions. This Court further holds there was insufficient evidence to convict Ess of attempted first-degree child molestation. The circuit court's judgment is reversed, and the case is remanded.[2]

Factual and Procedural History

Ess was charged with multiple counts of first-degree statutory sodomy, second-degree statutory sodomy, and one count of first-degree child molestation for acts alleged to have occurred against his stepsons, W.L. and B.L., at various times between 1995 and 2003. W.L. and B.L. testified at trial, detailing various acts of sodomy. Ess testified and denied all of the allegations, explaining that his relationship with his stepsons was troubled and deteriorated during their teenaged years. The jury convicted Ess of five of the six counts submitted to the jury.[3]

In his motion for a new trial, Ess alleged, inter alia, that he was entitled to a new trial based on misconduct by Venireperson No. 3, who ultimately served on Ess's jury as Juror No. 3. Ess alleged Juror No. 3 committed misconduct by announcing during a lunch recess during voir dire that " this is an open and shut case" after the circuit court instructed the panel members they were not to discuss the case or form an opinion before the case was submitted. Ess argued this comment revealed a bias existing at the outset of trial, which was not disclosed intentionally during voir dire and was communicated to others in violation of the circuit court's order. Attached to Ess's motion was an affidavit from Venireperson No. 26, stating, " [d]uring a break taken before the end of jury selection, after the court admonished the panel not to discuss the case, I heard [Juror No.] 3 remark to other nearby jurors that 'this is an open and shut

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case,' indicating to me that he believed [Ess] to be guilty." Venireperson No. 26's affidavit further indicated Juror No. 3 was told " shh" by another venireperson as if to admonish Juror No. 3 in accordance with the circuit court's instructions not to discuss the case.

The circuit court held an evidentiary hearing on Ess's motion.[4] Venireperson No. 26 testified he was sitting in the hallway outside of the courtroom on a bench after lunch when Juror No. 3 stated it was a " cut-and-dry [sic]" case. Venireperson No. 26 then corrected himself to state Juror No. 3's actual words were " open and shut." Venireperson No. 26 further testified Juror No. 11 made a " shh" sound after Juror No. 3 made the comment. Defense counsel attempted to elicit evidence about Venireperson No. 26's perceptions of Juror No. 3's comment, specifically whether Juror No. 3 favored the state or the defense. However, the circuit court sustained the prosecutor's objections, which were to a lack of foundation, speculation, and hearsay. Juror No. 11 also testified that he " shushed" Juror No. 3 and told him they were not to talk about the trial in the hall.

Following the evidentiary hearing, the circuit court overruled Ess's motion for new trial. In its written judgment, the circuit court found Ess failed to present any evidence from Juror No. 3 or any evidence regarding the context of Juror No. 3's statement, including any information about his mannerism, tone, or gestures when making the comment. The circuit court further found there was no evidence to show whether Juror No. 3 favored the state or the defendant. Ess appeals these convictions.

Juror Misconduct

Ess claims the circuit court erred in failing to grant him a new trial on his claim of juror misconduct. Ess argues Juror No. 3 was not impartial because he formed a clear opinion on the case prior to hearing any testimony or argument, and it was never established Juror No. 3 could set aside his prior opinions regarding Ess's guilt and give him a fair trial. Ess claims Juror No. 3's participation as a juror violated his right to a fair trial, his right to due process, and sections 494.470.2 and 547.020(2).[5]

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Standard of Review

The parties disagree about the appropriate standard of review. Ess argues the circuit court's judgment should be reviewed for an abuse of discretion. The state argues Ess's claim is limited to plain error because his motion for a new trial was filed one day after the deadline set forth in Rule 29.11(b).[6]

Ess's motion for new trial was due on January 9, 2014. Defense counsel's secretary attempted to file the motion that day; however, the circuit clerk's office informed her that the motion could not be accepted because the accompanying affidavit did not include a notary's stamp. This issue could not be rectified until the following morning, January 10, 2014. At the evidentiary hearing on Ess's motion for new trial, defense counsel apprised the circuit court of what happened and asked that the new trial motion be deemed to have been filed on January 9th. The state took no position on the matter, stating that even if it were considered timely filed, it would not change the outcome. The circuit court sustained Ess's motion to reflect that his new trial motion was filed timely on January 9, 2014.

Generally, the circuit court has no authority to waive or extend the time for filing a motion for new trial beyond the time set forth in Rule 29.11(b). State v. Bartlik, 363 S.W.3d 388, 391 (Mo. App. E.D. 2012). Here, however, the circuit clerk refused Ess's filing in the absence of some clear prohibition in law, court rule, or specific court order. The circuit clerk was obligated to accept the filing, see Vogl v. State, 437 S.W.3d 218, 226 (Mo. banc 2014); Rule 43.02(b), and a party could move to have the pleading stricken if the defect, which was the missing stamp on the accompanying affidavit, was not cured. Here, Ess's counsel cured the defect, filed the motion as soon as possible, and sought relief from the circuit court after explaining the circuit clerk's actions. Accordingly, this Court finds the circuit court's order ruling Ess's motion for new trial was filed timely was not an abuse of discretion. Ess's juror nondisclosure claim will be reviewed for an abuse of discretion. Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623, 644 (Mo. banc 2013).

Quantum of Proof

The state argues that even if this Court reviews Ess's claim for an abuse of discretion, it believes Ess failed to assert his juror misconduct claim properly because he did not present an affidavit or testimony from Juror No. 3. The state relies on the following statement from this Court's decision in State v. Mayes, 63 S.W.3d 615 (Mo. banc 2001): " In order to prove intentional concealment by a juror, the defendant must, at a minimum, allege intentional concealment in his motion for new trial and file an affidavit from the juror setting forth the facts surrounding the alleged concealment which reveals prejudice to the defendant." Id. at 626. The state contends that because Ess adduced testimony from Venireperson No. 26, and not from Juror No. 3, his claim must fail. The state's argument misinterprets

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this Court's holding in Mayes. In Mayes, the defendant failed to preserve the juror nondisclosure issue for review and was untimely in raising his claim. Id. at 624-25. The defendant failed to present testimony or an affidavit from the juror whose conduct was at issue; rather, he presented her jury questionnaire, which he contended impeached her voir dire testimony, thus demonstrating she committed misconduct. Id. This Court conducted plain error review and stated that even if the defendant's claims were raised timely, " a defendant alleging juror misconduct during voir dire must present 'evidence through testimony or affidavits of any juror, or other witness either at trial or at the hearing on his motion for new trial.'" Id. at 625-26 (emphasis added). This Court went on to hold that the circuit court did not err in overruling the defendant's new trial motion because he " failed to offer either an affidavit or testimony of [the juror], or other evidence " of intentional nondisclosure and he failed to " call the juror or otherwise establish " sufficient facts to merit relief. Id. at 626 (emphasis added).

Here, neither party presented an affidavit or testimony from Juror No. 3 at the evidentiary hearing. While Juror No. 3's participation in the proceeding could have aided the circuit court in its fact-finding function and could have provided context to his comment, this Court's holding in Mayes does not foreclose a defendant from proving his or her claim in the absence of this evidence. The circuit court misapplied the law when it relied on language in Mayes taken out of context and overruled Ess's motion partially due to determining that he was required to file an affidavit from Juror No. 3 setting forth facts surrounding the alleged concealment to support his claim and prove prejudice.[7]

The state next contends Ess failed to present evidence that Juror No. 3 made the alleged comment at all. The circuit court found Ess failed to present any evidence from Juror No. 3 and, ultimately, held Juror No 3 held no bias against Ess. This holding is not supported by the evidence presented at the evidentiary hearing. While Venireperson No. 26 first stated Juror No. 3 said the case was " cut-and-dry [sic]," he then corrected himself, stating the comment was " open and shut." Both phrases convey the same sentiment: Juror No. 3 believed there was no dispute about how the case should be resolved. Moreover, Juror No. 11 testified that while he did not hear what Juror No. 3 said, he knew it was related to the case, which is the reason he admonished Juror No. 3 to not talk about the case in the hall. The state presented no evidence whatsoever and did not impeach either witness's credibility in any meaningful way.

Generally speaking, the circuit court is free to believe all, part, or none of the testimony presented by the witnesses at the evidentiary hearing. Brown & Williamson Tobacco Corp., 410 S.W.3d at 639. Hence, even if this Court found the circuit

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court completely disregarded the unimpeached testimony presented at the evidentiary hearing, the circuit court nevertheless misapplied the holding in Mayes that Ess was required to file an affidavit from Juror No. 3.

Further, the circuit court did not find the witnesses not credible, nor did the circuit court find the " open and shut" comment was not said at all.[8] Rather, the circuit court's express findings in its judgment make clear that its ruling was not based on such findings. The circuit court found that there was no information about the mannerism, tone, or gestures of Juror No. 3 that indicated an undisclosed bias and the testimony from Venireperson No. 26 and Juror No. 11 did not show that Juror No. 3 indicated whether he favored the state or the defendant.[9] These findings show that the circuit court did not believe that no statement was made by Juror No. 3 but, rather, that it found that the statement alone was " not sufficient evidence to support [Ess's] contention that [Juror No. 3] intentionally concealed a bias or prejudice against defendant." (Emphasis added.) The question to be resolved then is whether Juror No. 3's comment that the case was " open and shut" is sufficient evidence of intentional juror nondisclosure to warrant a new trial.

Intentional Juror Nondisclosure

When a criminal defendant invokes his or her right to a jury trial, the Sixth and Fourteenth amendments entitle that defendant to a panel of impartial, indifferent jurors whose verdict must be based upon evidence developed at the trial. Johnson v. State, 406 S.W.3d 892, 910 (Mo. banc 2013). The parties are entitled to ask questions to " help determine whether a venire member holds prejudices or biases that would impair the performance of his or her duties. If prejudices are discovered, an inquiry should take place to reveal whether a juror can set aside prejudices and impartially fulfill his or her obligations as a juror." State v. Edwards, 116 S.W.3d 511, 529 (Mo. banc 2003).

Venirepersons must have an " open mind, free from bias and prejudice." Mayes, 63 S.W.3d at 624 (quoting State v. Wheat, 775 S.W.2d 155, 158 (Mo. banc 1989), overruled on other grounds by Joy v. Morrison, 254 S.W.3d 885, 888-89 (Mo. banc 2008)). Venirepersons have a duty to answer all questions fully, fairly, and truthfully during voir dire. Id. Failure to respond fully, fairly, and truthfully can deprive the parties of information needed to exercise peremptory challenges or challenges for cause to ensure an impartial jury is empaneled. Id. at 625.

Ess maintains he is entitled to a new trial due to intentional juror nondisclosure. " In determining whether to grant a new trial for juror nondisclosure, the court first must determine whether a nondisclosure occurred at all" and, if so, whether the nondisclosure was intentional or unintentional. Saint Louis University v. Geary, 321 S.W.3d 282, 295 (Mo. banc 2009). Nondisclosure can occur ...

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