United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CRITES-LEONI, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Petition of Jamaal Muhammad
for a Writ of Habeas Corpus under 28 U.S.C. § 2254.
is currently incarcerated at the Moberly Correctional Center
in Moberly, Missouri, pursuant to the Sentence and Judgment
of the Circuit Court of the City of St. Louis, Missouri.
(Respt's Ex. D at 104-07.)
August 19, 2009, the State charged Muhammad as a prior and
persistent offender with forcible rape and sodomy and, in the
alternative, statutory rape and sodomy. (Respt's Ex. D at
17-18.) The crimes were alleged to have occurred in March
2008. On July 22, 2010, a jury found Muhammad guilty of
forcible rape. Id. at 94-97. The court sentenced
Muhammad to 20 years in prison. Id. at 104-07.
raised two points on direct appeal of his convictions.
(Respt's Ex. B.) In his first point, Muhammad argued that
the trial court plainly erred by failing to inquire into the
discontent that existed between Muhammad and defense counsel
before determining whether to appoint substitute counsel.
(Respt's Ex. B at p. 17.) He next argued that the trial
court abused its discretion in failing to quash the venire
panel after a venireperson passed out in front of the panel.
Id. at 19. On November 8, 2011, the Missouri Court
of Appeals affirmed Muhammad's conviction. (Respt's
filed a pro se motion for post-conviction relief
under Rule 29.15. (Respt's Ex. F.) After appointment of
counsel, Muhammad filed an amended post-conviction relief
motion and request for evidentiary hearing, in which he
alleged the following ineffective assistance of counsel
claims: (1) trial counsel failed to locate, interview, and
call as a witness Christian Clayborne; (2) trial counsel
failed to locate, interview, and call as a witness Khaleed
Salama and Penny Hubbard; and (3) trial counsel failed to
advocate that Muhammad receive a more favorable sentencing
disposition by calling witnesses on his behalf and failing to
correct the court regarding Muhammad's prior criminal
history. Id. On May 29, 2013, the motion court
denied Muhammad's amended motion and his request for an
evidentiary hearing. (Respt's Ex. H.)
appeal from the denial of post-conviction relief, Muhammad
raised the same ineffective assistance of counsel claims that
he raised in his post-conviction motion. (Respt's Ex. J.)
The Missouri Court of Appeals affirmed the decision of the
motion court. (Respt's Ex. L.)
filed the instant Petition on June 9, 2014. (Doc. 1.) He
raises 32 grounds for relief. In his first five grounds for
relief, Muhammad raises the following claims previously
raised in state court: (1) the trial court erred in failing
to conduct an adequate inquiry into his discontent with trial
counsel and in failing to appoint new counsel; (2) the trial
court failed to grant a mistrial after a venire person
fainted; (3) trial counsel was ineffective in failing to call
Christian Claybourne to testify at trial; (4) trial counsel
was ineffective in failing to call Khaleed Salama and Penny
Hubbard to testify at trial; and (5) trial counsel was
ineffective in failing to call witnesses and in failing to
correct the court about his criminal history at his
grounds 6 through 32, Muhammad raises for the first time
ineffective assistance of counsel claims. Muhammad alleges in
the following grounds of the Petition that
post-conviction counsel was ineffective for not
raising the ineffectiveness of trial counsel as to
trial counsel's: (6) failure to file a motion for change
of venue as requested by Muhammad; (7) failure to familiarize
herself with his case, prepare for trial, investigate
witnesses, or visit him; (8) failure to file a motion to
disqualify the trial judge; (9) failure to move to waive a
jury trial upon Muhammad's request; (10) failure to
present evidence at the sentencing phase of his trial; (12)
failure to object to and preserve for review the
prosecutor's knowing use of false statements; (13)
failure to object to and preserve for review the
prosecutor's wrongful actions in arguing outside of the
evidence during closing argument; (14) failure to object to
and preserve for review that the trial court erred in finding
Muhammad a persistent offender; (15) act of urging the jury
to convict him of a lesser offense; (16) failure to call the
treating physician as an expert witness; (17) failure to
request a hearing under the Missouri Rape Shield Statutes;
(18) failure to object to the admission of DNA evidence; (19)
failure to object to and preserve for review the wrongful
admission of DNA evidence; (20) failure to offer expert
testimony regarding the DNA evidence; (21) failure to secure
the state's plea offer; (22) failure to investigate and
call Khalilah Green, Steve Powell, Deshell Harris, and the
Secretary of the Youth Program as character witnesses; (24)
overall ineffectiveness at trial resulting in the trial being
nothing more than a sham and a mockery of justice; (25)
failure to preserve for review the claim that the trial court
erred in denying Muhammad's motion to proceed pro
se; (26) failure to object to and preserve for review
the claim that the prosecutor violated Brady v.
Maryland; (28) failure to impeach key prosecution
witnesses with prior inconsistent statements; (29) failure to
investigate and produce records showing the victim's
propensity for lying; (30) failure to cross examine witnesses
based on pre-trial statements; (31) failure to call
impeachment witnesses; and (32) failure to adequately
demonstrate the victim's prior inconsistent statements
via cross-examination of the victim. (Doc. 1 at 15-24.) In
two grounds of the Petition, Muhammad argued that direct
appeal counsel was ineffective: (23) in failing to raise
on appeal that the trial court erred in overruling his Motion
for Judgment of Acquittal because there was insufficient
evidence to support the verdict; and (27) in failing to raise
on appeal the claim that the trial court erred in forcing
counsel on Muhammad. Id. at 21-22, 23. Finally,
Muhammad argued in ground eleven that post-conviction
counsel was ineffective for failing to raise in the
initial stage of the post-conviction proceeding that the
trial court erred in releasing the probation
officer's sentencing recommendation during the sentencing
phase. Id. at 18.
October 14, 2014, Respondent filed a Response to Order to
Show Cause, in which he argues that the first ground for
relief along with grounds 6 through 32 are procedurally
defaulted, and all of Muhammad's claims fail on their
merits. (Doc. 11.)
has filed a Traverse (Doc. 27), as well as other pleadings
and exhibits, in which he provides further argument in
support of his grounds for relief.
Court's summary of the facts below is taken directly from
the decision of the Missouri Court of Appeals affirming
Muhammad's conviction. (Respt's Ex. E at 3-4.)
March 2008, Muhammad was an employee at the Mark Twain
Community Resource Center in a program designed to assist
at-risk youths. S.A., who was sixteen years old, was a
participant in the program. On March 18, 2008, S.A. called
Muhammad and asked him for a ride home from her sister's
house. Muhammad picked her up and then took her to Imo's
for something to eat. While riding in the car, S.A. mentioned
that she wanted to take a YMCA trip to Milwaukee but that she
did not have the $45-50 necessary to participate. Muhammad
offered to help S.A., suggesting that she could clean his
house. S.A. agreed and Muhammad drove them to his house where
S.A. helped Muhammad pick things up off the floor. Muhammad
then turned down the lights and pulled S.A. toward him. S.A.
told him to stop playing but Muhammad continued to pull her
toward him and pulled off her jeans and underwear. Muhammad
eventually pulled S.A. onto the bed, got on top of her, and
put his penis into her vagina. After he finished, Muhammad
told S.A. to go into the bathroom and wash up. When she
refused, he took her into the bathroom, gave her a rag and
told her that “all that crying couldn't turn him on
like she should have.” Muhammad then took S.A. home and
gave her $40.
reported the incident to a neighbor who was involved in the
community program. The neighbor drove S.A. to the police
station and the hospital, where a rape kit was collected. DNA
from seminal fluid on the vaginal swab contained a mixture of
S.A.'s and Muhammad's DNA. Muhammad's DNA was
also recovered from cuttings on S.A.'s underwear and
swabs taken from S.A.'s cheek, lower perineum, thigh, and
jury found Muhammad guilty of forcible rape and not guilty on
the remaining counts.
Standard of Review
federal court's power to grant a writ of habeas corpus is
governed by 28 U.S.C. § 2254(d), which provides:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
Supreme Court construed Section 2254(d) in Williams v.
Taylor, 529 U.S. 362 (2000). With respect to the
“contrary to” language, a majority of the Court
held that a state court decision is contrary to clearly
established federal law “if the state court arrives at
a conclusion opposite to that reached by [the Supreme Court]
on a question of law” or if the state court
“decides a case differently than [the] Court has on a
set of materially indistinguishable facts.”
Id. at 405. Under the “unreasonable
application” prong of ' 2254(d)(1), a writ may
issue if “the state court identifies the correct
governing legal rule from [the Supreme Court's] cases but
unreasonably applies [the principle] to the facts of the
particular state prisoner's case.” Id.
Thus, “a federal habeas court making the
‘unreasonable application' inquiry should ask
whether the state court's application of clearly
established federal law was objectively unreasonable.”
Id. at 410. Although the Court failed to
specifically define “objectively unreasonable, ”
it observed that “an unreasonable application of
federal law is different from an incorrect application of
federal law.” Id. at 410.
contends that Muhammad procedurally defaulted Ground 1 and
Grounds 6 through 32, by failing to properly raise the claims
in state court.
avoid defaulting on a claim, a petitioner seeking federal
habeas review must have fairly presented the substance of the
claim to the state courts, thereby affording the state courts
a fair opportunity to apply controlling legal principles to
the facts bearing on the claim. Wemark v.
Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (internal
quotation marks and citations omitted) (quoting Anderson
v. Harless, 459 U.S. 4, 6 (1982) (per curiam) and
Anderson v. Groose, 106 F.3d 242, 245 (8th Cir.
1997)). Specifically, a state prisoner must fairly present
each of his claims in each appropriate state court before
seeking federal habeas review of the claim. Baldwin v.
Reese, 541 U.S. 27, 29 (2004). A claim has been fairly
presented when a petitioner has properly raised the same
factual grounds and legal theories in the state courts that
he is attempting to raise in his federal petition.
Wemark, 322 F.3d at 1021 (internal quotation marks
omitted) (quoting Joubert v. Hopkins, 75 F.3d 1232,
1240 (8th Cir. 1996)). Claims that are not fairly presented
to the state courts are procedurally defaulted. See
Id. at 1022.
cases of procedural default, federal courts are barred from
reaching the merits of the defaulted ground absent a showing
of both ‘cause' and ‘actual prejudice'
resulting from the alleged constitutional violations. See
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). A
petitioner must “show that some objective factor
external to the defense impeded counsel [or petitioner's]
efforts to comply with the State's procedural rule”
in order to show “cause” for procedural default.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
“Cause” can be demonstrated by either “a
showing that the factual or legal basis for a claim was not
reasonably available to counsel” or by a showing that
interference by officials made compliance impracticable.
Id. If a petitioner cannot show ‘cause'
for the procedural default, then the court need not determine
whether actual prejudice has resulted. See Leggins v.
Lockhart, 822 F.2d 764, 768 (8th Cir. 1987).
invoke the alternative miscarriage of justice exception to
the procedural default rule, a petitioner must present new
evidence affirmatively demonstrating that he is innocent of
the crime for which he was convicted. Abdi v. Hatch,
450 F.3d 334, 338 (8th Cir. 2006). “‘Without any
new evidence of innocence, even the existence of a concededly
meritorious constitutional violation is not in itself
sufficient to establish a miscarriage of justice that would
allow a habeas court to reach the merits of a barred
claim.'” Cagle v. Norris, 474 F.3d 1090,
1099 (8th Cir. 2007) (quoting Schlup v. Delo, 513
U.S. 298, 316 (1995)).
previously noted, Muhammad asserts 32 grounds for relief. The
undersigned will discuss Muhammad's grounds for relief in
Ground 1, Procedural Default
argues that the trial court erred in failing to conduct an
adequate inquiry into the “source, substance, or
truth” of his discontent with trial counsel and in
failing to appoint new counsel on this basis. (Doc. 1 at 16.)
Respondent argues that this claim is procedurally barred
because Muhammad failed to preserve the claim for direct
appellate review by not raising it in his motion for new
raised this claim in his direct appeal. The Missouri Court of
Appeals first noted that Muhammad conceded that he failed to
preserve this issue for appellate review. (Respt's Ex. E
at 6.) The court explained that “[u]pon plain error
review, the defendant must show that an evident, obvious, and
clear error affected a substantial right resulting in
manifest injustice or a miscarriage of justice.”
Id. (citations omitted). The court then held as
Here, the record indicates that Appellant and defense counsel
disagreed over trial strategy, which is an insufficient basis
to require substitution of counsel. While Appellant alleged
that he had not communicated with counsel, counsel
contradicted this assertion before Judge Grady, stating that
she communicated her trial strategy to Appellant via letter.
Defense counsel also advised Judge Grady that she responded
to this accusation before Judge Ohmer prior to trial.
Contrary to Appellant's assertions, the trial court did
investigate the possibility of substituting defense counsel,
yet Appellant failed to present any evidence of
“justifiable dissatisfaction” with his counsel.
In light of counsel's assertions to the contrary and
Appellant's failure to present the court with any
objective evidence that there was a total breakdown of
communication between him and defense counsel, Appellant
failed to make a showing of justifiable dissatisfaction or
irreconcilable conflict with his appointed counsel justifying
substitution of counsel. The trial court did not commit plain
error in conducting additional inquiries and investigation
into Appellant's alleged conflict with his appointed
Id. at 7-8.
does not dispute that he failed to preserve the claim
asserted in Ground 1 for appellate review resulting in the
procedural default of Ground 1. He does not argue cause or
prejudice for this default but, rather, contends that the
State appellate court's plain error review cures the
recently, there was a split within the Eighth Circuit
regarding whether plain-error review by a state appellate
court waived a procedural default, and courts were permitted
to choose which line to follow. Clark v. Bertsch,
780 F.3d 873, 876 (8th Cir. 2015) (comparing Toney v.
Gammon, 79 F.3d 693, 699 (8th Cir. 1996) and Hayes
v. Lockhart, 766 F.2d 1247, 1253 (8th Cir. 1985) (state
court's plain-error review does not excuse procedural
default) with Thomas v. Bowersox, 208 F.3d 699, 701
(8th Cir. 2000), Bannister v. Armontrout, 4 F.3d
1434, 1445 n. 6 (8th Cir. 1993) and Williams v.
Armontrout, 877 F.2d 1376, 1379 (8th Cir. 1989) (state
court's plain-error review permits federal review)). In
2011, the Eighth Circuit, sitting en banc, directed
that, in the event of an intra-circuit split, future panels
were to “determine and follow the earliest
precedent.” Id. (citing Mader v. United
States, 654 F.3d 794, 800 (8th Cir. 2011)). The Court
then determined that the earliest controlling panel opinion
on the effect of plain-error review is Hayes, which
held that such claims are procedurally defaulted and
unreviewable, absent cause and prejudice. Id.
(quoting Hayes, 766 F.2d at 1253).
Missouri Court of Appeals' discretionary plain-error
review of Muhammad's unpreserved claim cannot excuse his
procedural default. Thus, the first ground is procedurally
Ground 1, Merits
only is the first ground procedurally defaulted, it also
fails on its merits. The Sixth Amendment of the United States
Constitution guarantees criminal defendants the right to
counsel. U.S. Const. Amend. VI. The right to counsel,
however, does not include the appointment of an attorney who
will advance meritless theories, proceed according to a
defendant's wishes, or develop a close relationship with
the defendant. See United States v. Rodriguez, 612
F.3d 1049, 1055 (8th Cir. 2010) (citations omitted). Nor does
the right bestow on a defendant “the absolute right to
counsel of his own choosing.” Carey v.
Minnesota, 767 F.2d 440, 441 (8th Cir. 1985).
to grant a request for substitute counsel is a matter of the
trial court's discretion. Nerison v. Solem, 715
F.2d 415, 418 (8th Cir. 1983). To obtain a new attorney,
“the defendant must show justifiable dissatisfaction
with his appointed counsel.” Id. Possible
circumstances include “a conflict of interest, an
irreconcilable conflict, or a complete breakdown in
communication between the attorney and the defendant.”
Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.
1991). When a defendant makes an ostensibly valid complaint
about his lawyer, the court “has an obligation to
inquire thoroughly into the factual basis of the
defendant's dissatisfaction.” United States v.
Hart, 557 F.2d 162, 163 (8th Cir. 1977). A
defendant's refusal to communicate with his attorney will
not suffice, Hunter v. Delo, 62 F.2d 271, 274 (8th
Cir. 1995), nor will “a defendant's frustration
with counsel's performance or disagreement with his
tactical decisions, ” United States v. Boone,
437 F.3d 829, 839 (8th Cir. 2006).
Assistant Public Defender Katrina Jones, filed a motion to
withdraw on April 9, 2010, in which she stated that Muhammad
had terminated her representation in writing. (Respt's
Ex. D at 48-49.) On April 14, 2010, Judge Steven R. Ohmer (a
pretrial judge) held a hearing on the motion. Muhammad
withdrew his request to discharge counsel during the
hearing and Judge Ohmer denied defense counsel's Motion
to Withdraw. Id. at 50. Judge Ohmer continued the
case to July 19, 2010.
the pretrial conference on July 19 before Judge Thomas C.
Grady, 22nd Judicial Circuit, Division 21, defense counsel
stated that she wanted to renew her motion to withdraw.
(Respt's Ex. A at 6.) Counsel indicated that in March of
that year it was clear that she and Muhammad had a
“conflict of interest in the file on certain major
points, ” and that Muhammad “really wanted a
Muslim attorney.” Id. Defense counsel further
explained that she was simultaneously representing Muhammad
in a separate misdemeanor domestic violence case in which
Muhammad had “renewed or filed a motion to terminate
[her] from representing him on the second case.”
Id. at 9. Judge Grady questioned Muhammad regarding
whether he wished to have his attorney withdraw and proceed
pro se. Muhammad stated that he wanted counsel to
withdraw, did not want to proceed pro se, and that
he wanted substitute counsel to be appointed. Id. at
9-11. This issue had been discussed previously with Judge
Ohmer in April. At that time, Muhammad changed his mind and
decided he wanted to proceed with Ms. Jones as his attorney.
During the initial pretrial conference, Judge Grady
. . .what we have here is a kind of minuet that is a
procedural minuet or a square dance that's going on here.
And one minute somebody wants the lawyer. The next minute
they don't want the lawyer. Then they want that lawyer
again. And this hog caller is not going to tolerate that. We
are going to have a straight line thing here, and there's
not going to be any music. There's not going to be any
square dances procedurally. And it is going to be a nice,
quiet, fair trial so that the jurors are respected in their
dignity and so that the defendant's rights are respected.
Id. at 13.
Grady then called Ms. Jones' supervisor, James Frazier,
who testified that, if there was mere discontent or
disagreement with an attorney and no conflict of interest,
the public defender's office's policy was not to
reassign within the office. Id. at 17. He explained
that honoring such requests was unworkable as they'd be
making reassignments all of the time if the standard was
simply that the defendants were not happy. Id. at
18. To support his dissatisfaction, Muhammad claimed that Ms.
Jones had not spoken with him in person prior to the trial.
Id. at 19. Judge Grady directed Mr. Frazier to
investigate the matter further. Judge Grady also instructed
the parties to appear before Judge Ohmer regarding
Muhammad's request for substitute counsel as he wanted
Judge Ohmer's input on the issue. Id. at 20-21.
That very day, after holding a hearing regarding
Muhammad's request for substitute counsel,  Judge Ohmer
denied counsel's motion to withdraw. (Respt's Ex. D
at 5.) Later that afternoon, Judge Grady held the final
pretrial conference for the case, including review of motions
in limine. The case was reconvened for jury selection the
following morning and concluded at 6:10 p.m., July 20.
next morning (July 21, 2010), before the jury was brought in,
Muhammad stated to Judge Grady that Ms. Jones had not
discussed the case with him that morning, and that he was
unprepared for trial. (Respt's Ex. A at 259-60.) Muhammad
stated that he was not requesting additional time but,
rather, did not want Ms. Jones to represent him. Id.
at 260. Upon questioning by the court regarding whether she
was prepared to proceed, Ms. Jones stated as follows:
Your Honor, I am still prepared to go forward with my
theory for the last two years. He's not
agreed with it, but under the guidelines of representation
and not by any order of my office I have explained to him
in letter and for months what my theory would be.
Id. at 261-62 (emphasis added). Muhammad denied
knowing Ms. Jones' theory of the case. Id. at
262. Judge Grady replied:
Judge Ohmer has gone through this downstairs in great detail,
and he is on the record. His discussions with you are on the
record. So I am not going to delay this case anymore.
Id. at 262.
jury was called in and sworn. Ms. Jones then requested a
sidebar wherein she announced that Muhammad asked her if he
could waive his right to the jury. Judge Grady was aggravated
by the inquiry as the jury had been sworn and stated that he
felt he was “being gamed” and didn't
“appreciate it.” Id. at 263. Judge Grady
expressed his view that Muhammad's averments that Ms.
Jones had not seen him in two and a half years were
incredulous and that he “assume[d Ms. Jones] responded
to that downstairs with Judge Ohmer.” Id. at
263-64. Ms. Jones indicated that she did answer that question
to which Judge Grady replied, “I am satisfied with that
ruling and that will be the law of the case.”
Id. at 264.
record reveals that, contrary to Muhammad's depiction of
the proceedings, the trial court did inquire into the source
of Muhammad's discontent with counsel. In fact, Judge
Grady was emphatic about resolving “these what you call
wrinkles, because then that distracts from the orderly and
fair trial that we have got to get to here.”
Id. at 12.
record shows that on the first day of trial, Muhammad
informed the court that he believed counsel had not
communicated effectively with him, and that he disagreed with
counsel's trial strategy. Judge Grady understood that
Muhammad did not want to be represented by Ms. Jones and that
“she share[d] with [Muhammad] a concern about their
long standing differences involving this case.”
Id. at 15. The Missouri Court of Appeals held that
Muhammad's disagreement with counsel regarding trial
strategy was an insufficient basis to require substitution of
counsel, and that counsel's testimony contradicted
Muhammad's accusation that she had not communicated with
him before the trial.
Judge Grady described it, Muhammad was raising a
“private irritation” between lawyer and client
which was related to trial strategy and “these things
happen during trial.” Id. at 261. It is also
worth noting that on the day Muhammad claimed he had not
communicated with his attorney regarding trial strategy, he
also claimed that trial counsel notified him the day before
“that she could not represent me to the full extent of
her ability because her supervisors were mad at me for some
reason.” Id. at 259. In Ground 21, Muhammad
indicates trial counsel communicated a plea offer from the
State that he now claims trial counsel should have secured.
Id. at 556-57; Doc. 1 at 21. Muhammad's own
arguments support that he had ongoing communications with
trial counsel prior to trial. There is sufficient evidence in
the record to support the court's finding that
Muhammad's dissatisfaction with his attorney was not
justifiable. Thus, the State court's determination was
not contrary to or an unreasonable application of law, nor
was it based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceedings. The first ground for relief is denied.
second ground for relief, Muhammad argues that the trial
court erred in failing to grant a mistrial when a venire
person fainted after the prosecutor asked whether any members
of the panel had been victims of a sexual crime. Muhammad
contends that this incident “tainted the other venire
members, and negatively affected Petitioner Mr.
Muhammad's right to a fair trial and impartial
jury.” (Doc. 1 at 16.)
voir dire, the prosecutor asked the venire members whether
they or their friends or family members had ever been a
victim of a sex crime. (Respt's Ex. A at 76.) After
several members of the panel responded affirmatively to this
question, Juror 352 requested a side bar. Id. at 85.
Juror 352 approached the bench, and was noted to be
“shaking badly.” Id. She then
“fell to the floor, shaking.” Id. The
court stated to the venire panel that Juror 352 was
“incapacitated at the present time, so we are going to
go into a temporary recess.” Id. During the
recess, defense counsel moved to strike the panel based on
the Juror 352 passing out. Id. at 87. The motion was
the venire panel returned to the courtroom after the recess,
the court stated:
I want to ask a question of all of you because, as you know,
when we recessed for lunch at about 11:30, one of our nice
jurors had a spell, I guess you would call it. That's the
old time word for it. It wasn't from my observations, I
thought perhaps might have been some form of a spasm of some
kind. I don't know what it was. Very nice lady. And we
have taken good care of her, and she is being treated, and
she got quite a bit calmer when the ambulance people came.
But my question to you is this: Because she came up wanting
to be heard on a private matter-we never did get to that
matter. We don't know what it was, and we can't-it is
immaterial what it was. Are there any of you-and I want you
to be honest with me. Don't be afraid to answer this
question. Are there any of you who, having been in the room
when this was occurring, were affected by it in such a way
that it would have any coloration on your opinion of the
facts as they evolve in this case? In other words, will you
be affected by that and distracted by that so that you
can't listen to the case here? Because it's very
important that we have a fair and attentive jury and not a
jury that's distracted by this particular event. So are
there any of you who feel that having been in the room when
this situation occurred will affect your ability to pay
attention to the evidence and to give both sides of this case
a fair trial and not hold this event on this very nice
lady's very temporary incapacity, hold that against one
of the sides, either the State or the defendant? You see what
I am asking? Is it going to affect any of you in that kind of
various way? Please let me know. If you want to come here to
side and tell me privately, that's fine. Anybody have
that problem? I see no one raising their hand.
Id. at 87-88.
raised this claim in his direct appeal. The Missouri Court of
Appeals held as follows:
“A trial court has broad discretion in determining
whether a venire panel should be dismissed, and the
court's ruling will not be disturbed on appeal absent a
clear abuse of discretion.” State v. Ware, 326
S.W.3d 512, 520 (Mo. App. S.D. 2010). The trial court abuses
its discretion if its ruling is clearly against the logic of
the circumstances and the ruling is so arbitrary and
unreasonable as to shock the sense of justice and indicate a
lack of careful consideration. Id. We presume the
trial court's denial of a motion to quash is correct, and
the defendant had the burden of demonstrating otherwise.
Appellant has failed to demonstrate any prejudice resulting
from Juror 352 passing out in front of the venire panel. The
trial court advised the venire members that it was unclear
what caused the woman's collapse and asked the members if
they were affected by the experience. None of the panel
members indicated that the incident would affect his or her
ability to judge the case in any ...