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State v. Wilson9/7/1999
to render a fair and just verdict for one reason or another. Some for the Defendant not testifying. Some because of drinking alcoholic beverages, etc. And is there anybody that has changed their mind that made the statement that they could not render and fair and just verdict based upon the evidence because of those reasons? Anybody had a change of heart, raise your hands. I take it by your expression of silence that you're sticking with the answers that you gave me. Thank you. . . . (emphasis added).
Defense counsel then asked a final, related question:
I think I've already asked the ladies and gentlemen of the jury and I think that even though you said that you would follow the instructions, I believe some of you said it would be difficult if he [defendant] did not testify, that it would affect you. Anybody change their mind on that? Thank you. (emphasis added).
So far as the record demonstrates, neither Mr. Anderson, Mr. Wheeler, nor any of the other 11 venire persons who had indicated a concern about a defendant's failure to testify, indicated they had changed their mind about these concerns.
Defense counsel challenged for cause all 11 venire persons who expressed an inability to be fair and impartial if the defendant did not testify. The court overruled each challenge. In response to the Court's ruling, defense counsel requested that voir dire be reopened to address what could at best be called equivocation, on this issue by the jurors. The Court denied the request. Of the 11 venirpersons who indicated that a failure to testify would affect them, only Mr. Wheeler and Mr. Anderson sat on the jury. The jury convicted Mr. Wilson. He now appeals alleging the trial court committed reversible error in refusing to strike Mr. Wheeler and Mr. Anderson.
II. FAILURE TO STRIKE UNQUALIFIED JUROR
As stated in State v. Walker, 795 S.W.2d 522 (Mo. App. W.D. 1990):
An individual accused of a crime is entitled to a full panel of qualified jurors before he is required to expend his peremptory challenges. State v. Schwer, 757 S.W.2d 258, 262 (Mo. App. 1988); State v. Bebermeyer, 743 S.W.2d 516, 519 (Mo. App. 1987). For a trial court to deny a legitimate challenge for cause constitutes an abuse of discretion and reversible error. Schwer, supra, at 262. Id. at 525.
A legitimate challenge is made where it clearly appears from the evidence that the venireperson is prejudiced and, as a result, cannot be fair and impartial. See generally State v. Walton, 796 S.W.2d 374, 377 (Mo. banc 1990). A venireperson who cannot be fair and impartial is not qualified to serve on the jury. Id.
A trial Judge has broad discretion in determining which venirepersons are qualified to serve, for the trial Judge is in the best position to observe the demeanor and tone of the venirpersons, whereas the appellate court can consider only the cold record in determining qualifications. State v. Moore, 927 S.W.2d 439, 440 (Mo. App. W.D. 1996); Walker, 795 S.W.2d at 525. Accordingly, when reviewing a trial court's denial of a challenge for cause, we resolve doubts as to the judgment of the trial court in its favor. Walton, 796 S.W.2d at 378. Moreover, in considering whether the trial court erred, we are guided by the principle that a juror's ability to be fair and impartial is to be determined based on his or her responses as a whole, rather than by focusing on individual responses to specific questions.
Thus, the fact that, considered alone, a juror's answer to a particular question may raise the bare possibility of prejudice, is not enough to render a juror unqualified or deny the trial Judge the discretion to find he or she is q
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