State v. Pride

McMILLIAN, Judge,

dissenting.

I must dissent. I disagree with the majority opinion and would reverse and remand for a new trial. Specifically, I believe the trial court erred in refusing to strike for cause four jurors: Mrs. Norman Tuschoff, Mrs. Norman Wille, Ronald Broker, and Leroy Berkbigler, when, as veniremen, they indicated bias and prejudice against appellant.

I would find that the trial court abused its discretion in refusing to strike for cause Mrs. Tuschoff and Mrs. Wille, who are both related to members of the Jackson City police department, which arrested appellant and investigated the present case. Mrs. Tuschoff had heard about the case from her husband, a member of the police department. Mrs. Wille’s relationship is admittedly more tenuous; her brother-in-law is apparently the chief of the police department. Although I agree with the majority in that I would be less inclined than the trial court to include as jurors in criminal cases persons who are related to law enforcement officers, I would distinguish those persons who are related to law enforcement officers whose departments or units were specifically involved in the investigation of the case being tried. There is nothing prejudicial per se in being related to law enforcement officers. For example, one of the potential jurors was related to Jefferson City and St. Louis police officers and was not challenged for cause. However, the likelihood of independent information and a certain amount of bias when a potential juror is related to a member of the particular police department involved in the case should not be ignored. For this reason, I believe the trial court should have removed Mrs. Tuschoff and Mrs. Wille.

It is true that of appellant’s nine challenges for cause, the trial court-sustained five. I cannot, however, after a careful reading of the record of the voir dire examination, detect any significant differences between the responses of those veniremen retained and those removed. The majority opinion emphasizes that sympathy is not bias and that Mr. Broker’s answer that as a truck driver he might be a “little more sympathetic" to truck drivers does not indicate bias or prejudice any more than an answer that a prospective juror would tend to be more sympathetic toward the victim. Mr. Broker was not indicating a natural *435 sympathy toward victims but toward truck drivers; he was himself a truck driver and had heard of the incident from other truck drivers. It must be remembered that the present case involved truck drivers (two of the three main witnesses for the prosecution were truck drivers) and, unfortunately, the dangerous aspects of highway travel. The trial court should have removed Mr. Broker.

I am unable to distinguish Mr. Berkbigler from two other veniremen who related similar racial experiences and were successfully challenged and removed from the jury. Mr. Berkbigler quite frankly disclosed that his wife had been scared by an unpleasant encounter with three black men in the past and answered “I don’t really think so” to the question whether that experience would affect him. I cannot agree with the majority’s characterization of Mr. Berkbigler’s response as merely “common vernacular to express a negative” and believe that it does indicate some equivocation. Furthermore, I note that two other veniremen whose adverse racial experiences were more remote in relationship and time than Mr. Berkbi-gler’s were removed — Mrs. Urhahn, whose sister’s store was disturbed by three black men, and Mr. Lorenz, who disclosed racial problems during his military service in Vietnam. Mr. Berkbigler should havé been similarly removed.

“. . . [Ujnder our system of jurisprudence there is no feature of a trial more necessary to the pure and just administration of the law than that every litigant should be accorded a fair trial before a jury of his countrymen who enter upon the trial totally disinterested and wholly unprejudiced. (Citation omitted.) And if for any reason, statutory or otherwise, a venireman is not in a position to enter the jury box with an open mind, free from any bias, he is not a competent juror. . ” State v. Holliman, 529 S.W.2d 932, 942-43 (Mo.App.1975) (Simebne, P. J., concurring).

Somewhat analogous to Judge Simeone’s analysis in Holliman , although no single factor regarding the qualifications of the veniremen challenged in the present case would be sufficient to sustain a challenge for cause, the cumulative effect of these factors would be sufficient, in my opinion, to sustain a challenge for cause against each. In view of the cumulative facts present in the record of the voir dire examination, I would reverse and remand for a new trial because the trial court refused to remove for cause the four jurors, thereby abusing its discretion.

In cases of this nature, a court must ask itself three questions: (1) was the defendant given a fair trial; (2) did the defendant have a fair hearing; and (3) was justice done. Here, in my opinion, the answer to each question is an unqualified no. Moreover, it is inconceivable that in the midst of a pool of qualified veniremen that a court would permit jurors in a suspect category to sit in final judgment of an accused. I cannot believe that if any reasonable person unfortunately found himself or herself under charges as a defendant would countenance as jurors to hear and decide their case who have the credentials of those four jurors permitted to serve in this case.

For the reasons given herein, I would reverse and remand the cause for a new trial.