State v. Watson

ROBERT R. WELBORN, Special Judge,

dissenting.

I would not disturb the trial court’s exercise of discretion in passing upon the qualifications of venire persons Dody and Johnston. In the case of Dody, the trial court could well have concluded that the answers which the majority rely upon as evidencing doubt as to her ability to hear the case impartially represented basically a reluctance to serve upon the jury and that the trial court’s direct inquiry as to her ability to hear the case fairly disclosed her ability to sit as a juror.

Johnston’s response was in reply to an effort on the part of defense counsel to extract a “promise” from the venireman. A question phrased in such terms may well be constructed to exact an obligation in favor of the party posing the question. Again the trial court was in a position to *759see the interrogation, view the reaction of the persons involved and conclude that the answer to the court’s question disclosed the state of mind of the venire person toward the proper exercise of his function. State v. Daugherty, 484 S.W.2d 236, 237-238[1] (Mo.1972).

I do not consider the replies of the venire persons here relied upon by the majority to have had the unequivocal character of the remarks of the venire person in Lovell, who well-nigh voluntarily stated his concern that “ * * * policemen’s hands are tied in many instances * * 506 S.W.2d 442. I do not consider Lovell controlling.

I therefore dissent.