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State v. Wilson9/7/1999
Defendant, William E. Wilson, was convicted in the Circuit Court of Livingston County, of a class D felony under section 577.010 RSMo 1994 for driving while intoxicated and was sentenced to five years imprisonment. Mr. Wilson raises two points on appeal, the first of which is dispositive. He asserts that two of the jurors serving on the jury, Mr. Wheeler and Mr. Anderson, equivocated on voir dire as to whether they would be fair and impartial to a defendant who did not testify at trial, and that the trial court therefore erred in denying his challenge of these two venirepersons for cause. The State agrees that the trial court committed reversible error in refusing to strike Mr. Anderson for cause, and concurs in defendant's request that we remand for a new trial. Because we agree that the trial court erred in denying defendant's challenge for cause as to Mr. Anderson, we reverse and remand for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of December 8, 1996, Officer Dean Davis stopped Mr. Wilson's vehicle for travelling 52 miles per hour in a 35 mile per hour zone. As he approached the car, Officer Davis noticed a strong odor of alcohol. Mr. Wilson admitted to having had a "few drinks". The officer checked Mr. Wilson's driving record and learned that his license had been revoked. He also gave Mr. Wilson a horizontal gaze nystagmus test and a portable breathalyzer test. Based on these test results, and on the officer's 14 years of experience, the smell of alcohol, Mr. Wilson's admission he had been drinking, and Mr. Wilson's use of abusive language, Officer Dean believed Mr. Wilson to be intoxicated and impaired and arrested him for driving while intoxicated. Mr. Wilson was subsequently charged with that crime.
At trial, Mr. McFadin, counsel for defendant, asked during voir dire whether any venireperson would infer guilt or be affected if Mr. Wilson chose not to take the stand in his own defense. Eleven of the potential jurors, including Mr. Wheeler and Mr. Anderson, indicated that they would be affected by defendant's failure to testify, most saying that they wanted to hear evidence from both sides.
The court gave the prosecutor permission to attempt to rehabilitate those prospective jurors who indicated they would be affected if Mr. Wilson did not testify. The prosecutor asked those jurors whether they would be able to follow the court's instructions despite their concern about the defendant's failure to testify, stating:
Ladies and gentlemen, Mr. McFadin asked you the question about the Defendant not testifying if he so elected, and a number of you indicated that it might have an effect on how you view the case. The Court will instruct you that if the Defendant does not take the stand, you are to draw no adverse inference from that whatsoever. If the Court so instructs you, and I'm going to go through each of you if my notes indicated that you would have a problem.
The question is, if the Court so instructs you, will you follow the Court's instruction and not draw an adverse inference from the Defendant's refusal to testify?
All 11 persons who had said they would be affected indicated they would follow the court's instructions not to draw an "adverse inference", although some said this would be difficult. Both Mr. Wheeler and Mr. Anderson answered, "Yes, sir", when asked if they would follow such an instruction.
In response to this attempt by the State to rehabilitate these venirepersons, defense counsel posed the following general question:
Ladies and gentlemen of the jury, many of you raised your hand and many of you said that it was difficult for you
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