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State v. Stewart

Court of Appeals of Missouri, Southern District, First Division

May 23, 2017

STATE OF MISSOURI, Plaintiff-Respondent,
KENNETH A. STEWART, Defendant-Appellant.



          DON E. BURRELL, J.

         Kenneth A. Stewart ("Defendant") appeals his convictions after a jury trial of two counts of endangering the welfare of a child and two related counts of armed criminal action. See sections 568.045 and 571.015.[1] Defendant's sole point claims the trial court plainly erred in denying his request to have venireperson no. 19 ("Juror 6") removed from the panel for cause. Defendant did not present this claim to the trial court in his motion for new trial, so he seeks plain-error review under Rule 30.20, insisting that Juror 6's subsequent service on the jury "resulted in a manifest injustice" because Juror 6 stated that "'there's no way of knowing'" whether "she would be fair and impartial in a case involving child endangerment." Because the trial court's ruling did not amount to evident, obvious, and clear error, we affirm Movant's convictions.

         Governing Law and Applicable Principles of Review

         "It is fundamental that a criminal defendant is entitled to a jury composed of only those who are free from any bias or prejudice." State v. McKee, 826 S.W.2d 26, 28 (Mo. App. W.D. 1992). Specifically, "[t]he trial court must strike for cause prospective jurors when they exhibit prejudicial bias because the victim is a child." State v. Clark, 981 S.W.2d 143, 147 (Mo. banc 1998). "If the voir dire is constitutionally sufficient, the final decisions as to which members of the venire are not impartial lies within the sound discretion of the trial court." State v. Nicklasson, 967 S.W.2d 596, 611-12 (Mo. banc 1998).

         "In determining whether plain error has, in fact, occurred-the first step in a plain error analysis-we note that generally, '[a] trial court's ruling on a challenge for cause will be upheld on appeal unless it is clearly against the evidence and is a clear abuse of discretion.'" State v. Garrison, 276 S.W.3d 372, 376 (Mo. App. S.D. 2009) (quoting Joy v. Morrison, 254 S.W.3d 885, 888 (Mo. banc 2008)). To reverse for plain error, a reviewing court must ultimately find that manifest injustice or a miscarriage of justice has resulted from the trial court error. State v. Worthington, 8 S.W.3d 83, 87 (Mo. banc 1999). "Plain errors are those which are 'evident, obvious, and clear.'" State v. Scurlock, 998 S.W.2d 578, 586 (Mo. App. W.D. 1999) (quoting State v. Bailey, 839 S.W.2d 657, 661 (Mo. App. W.D. 1992)). If such error appears, then (and only then) the court must determine "whether the claimed error resulted in manifest injustice or a miscarriage of justice." Id.

         Relevant Facts and Procedural Background

         Defendant does not challenge the sufficiency of the evidence supporting his convictions. Thus, we relate only facts relevant to the trial court's denial of Defendant's challenge for cause to Juror 6.

         During voir dire, the trial court informed the panel of prospective jurors that Defendant had been charged with "the offenses of endangering the welfare of two children [("the children")] and two counts of armed criminal action." It also told the panel that "[D]efendant has ple[aded] not guilty to the charges." Each panel member was asked to answer some preliminary questions about themselves. Juror 6 stated her name, the number of years she had lived in Greene County, her marital status, that she had no children, and that she operated a dance academy. During the prosecutor's portion of voir dire, the panel was told the names of the children and that their ages were five and seven at the time of trial.

         In response to questions from defense counsel, Juror 6 disclosed that she knew another member of the panel, but she said that the other person would not "have any more influence over [her] than anybody else[.]" Juror 6 also disclosed that she had "a good friend in the St. Louis area who's an officer with the police department[, ]" but she said she would not "have a hard time" telling that friend that she had found someone not guilty.

         Defense counsel later asked, "Is there anybody here . . . for any reason, that you don't think you can sit on this jury?" Juror 6 was among a group of panelists who raised their hands in response to that question. Defense counsel then called on each of those panelists, and the following is the exchange with Juror 6.

[Defense counsel]: . . . . Yes.
[Juror 6]: I'm [Juror 6]. I'm a CASA volunteer[[2], and so I've worked with similar cases, not --probably not this one, and it's been a while since I've had a case. It was three years since my last case, but that is something that I've -- I just feel like you should be aware of.
[Defense counsel]: Okay. And do you think that that -- your experience as being a CASA volunteer --that that would be playing in the back of your head a little bit and possibly ...

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