State v. Jones

CARL R. GAERTNER, Judge,

dissenting.

I respectfully dissent. Reversal on the sole ground of failure to discharge a ve-nirewoman is, under the circumstances of this case, in derogation of the longstanding rule that the trial court’s determination of the qualifications of a prospective juror will be rejected only upon a clear showing of abuse of discretion. State v. Olinghouse, 605 S.W.2d 58, 69 (Mo.banc 1980).

I do not read State v. Draper, 675 S.W.2d 863 (Mo.banc 1984) as requiring a reversal in this case. In Draper a sharply divided Supreme Court reversed a conviction because of the denial of a challenge for cause of a prospective juror who had twice given a negative response to a question regarding her ability to accept the possibility that a police officer might give untrue testimony. No follow-up questions were addressed to the venirewoman by the court or by counsel. The record was left with an undiluted expression of doubt about her ability to accept even a possibility that a police officer might testify to something that wasn’t true. The majority opinion emphasized that the trial court had mistakenly thought her later responses to general questions indicated an ability to be a fair and impartial juror.

Here, the interrogation of juror Carroll shows her expressing doubt about her consideration of police testimony when first questioned. Her responses to the next series of questions, however, completely dispel this doubt. Because of these subsequent answers, I cannot agree with the majority that her answers showed “a bias of credibility contrary to the interest of the defendant.”

Moreover, the trial judge has the advantage of observing the demeanor of the venireman, of hearing the tonal accentuation of his responses, of watching the movement of his head and eyes and hands, the “body language” which so often lends interpretation and emphasis to the spoken word. This advantage over the reading of a printed transcript gives rise to the requirement of appellate deference to the trial court’s exercise of discretion in evaluating the effect of responses to voir dire examination. These sensory perceptions, which are not apparent on a cold record, are of particular import when considered in the light of the psychological pressures upon a prospective juror. He is summoned into unfamiliar surroundings amid unfamiliar faces, herded into the formality of a courtroom and placed under oath. He is told that he is faced with the awesome task of passing judgment on his fellow man and deciding whether another person is to be deprived of his liberty. He is asked about any preconceived notions about subjects he may never have considered, about how he might possibly react to what he might possibly hear, to commit himself to disregard his own thoughts about the law in favor of following unknown instructions and to describe before strangers personal experiences of himself and his family. That a venireman’s first response is to express doubt and confusion is not surprising. That such doubt and confusion has been resolved in response to clarifying questions is best determined by the trial judge who sees and hears and evaluates the totality of the circumstances.

For the same reasons, the trial judge is better situated to determine the import to be attributed to such expressions as “I think — ,” “I guess — ,” “maybe — ,” and, as in the instant case, “probably — .” It is essential that such phrases be viewed in the total context of the venireman’s responses in the light of the reluctance of the average citizen in awesome surroundings *348to express his feelings and opinions in absolute terms.

The chronology of the questions and answers of juror Carroll are set forth in the majority opinion. Her first answer conceivably can be interpreted as expressing doubt. More likely it was a spontaneous response to a question that had never entered her mind. When directly asked about her approach to the credibility of police officer as a police officer, there was no doubt about her feelings. The same absence of doubt is reflected in her response to the question regarding her ability to judge police testimony no differently than that of bank employees. Her intervening response, “probably, yes,” does not, in my judgment, deserve the emphasis placed upon it by the majority. Recognizing the timorousness of the average venireman, I view such a response as nothing more than the nervous reluctance of a sincere person to use absolutes regarding her reaction to unknown future situations. Especially in light of her subsequent unequivocal answer, placing emphasis on the single word “probably” is unwarranted.

I recognize the importance of clarifying questions by the trial judge when a venireman’s answers indicate doubt or indecision. But here, where counsel elicited unequivocal answers by “follow-up” questions, what more could the court ask? It is significant that defense counsel saw no need to ask any specific questions of juror Carroll.

Appellant does not assert any other ground for reversal. The evidence of guilt is overwhelming. I would affirm.