Pollard v. Whitener

*284HANNA, Judge.

The decedent’s husband, Larry Pollard, and her son, James Kissner, brought this action against defendants, Drs. Don R. Whitener and Curt Vogel, alleging that their negligent medical treatment caused Mrs. Judy Pollard’s death. Mrs. Pollard underwent hernia repair surgery at Boone Hospital Center in Columbia under Dr. Vogel’s care. Pulmonary complications caused Dr. Vogel to call in Dr. Whitener, a pulmonologist. Mrs. Pollard developed respiratory failure and died within a few days. Plaintiffs charged that the defendant’s medical care fell below the standard required. Before submission, the plaintiffs dismissed their claim with prejudice against Dr. Vogel.

The jury returned a $70,000 verdict in favor of the plaintiffs. Judgment was entered accordingly, and the plaintiffs’ post-judgment motion was overruled. On appeal, plaintiffs’ single issue is whether the trial court abused its discretion by curtailing the length of the plaintiffs’ voir dire examination.

The facts relating to the voir dire examination commence with the pre-trial conference, held three weeks before the trial date, when the trial court advised the attorneys, among other matters discussed, that jury information forms would be available the day before trial. During the discussion about the length of the trial, the judge told the parties that she expected to commence the evidence on the afternoon of the first day of trial. The court’s written pre-trial order confirmed that “plaintiffs indicate that they will be ready to proceed with the presentation of evidence on the opening day of trial when the jury selection is completed.”

On the morning of trial, the jury panel was sworn at approximately 9:30 A.M. The voir dire examination commenced with questioning by the trial court about the panel members’ relationship with the parties, the lawyers and their associates, their knowledge of the facts of the case, hardships created by jury service, and other questions of a general nature. The court’s examination continued for approximately one hour. Following a recess, when strikes for cause were made, the plaintiffs’ attorney took over the examination which continued for a little over one hour. The court recessed for lunch at 12:10 P.M., when the judge told the attorneys that she wanted voir dire to be finished “as close as possible” to 2:30 P.M. She remarked that there were “25 jurors left over from [another] case,” which were returning at that time. She noted that defense counsel had not asked any questions and that the “plaintiffs’ counsel has had about a little over an hour at this point.” Plaintiffs’ counsel replied: “I’ve got quite a bit more, your Honor.” The court responded:

THE COURT: Well, you need to expedite it and move along so that we’ll — I’m not sure that we have a jury out of this panel yet. And I mean they haven’t — all the questions haven’t been asked obviously. And I do not want people hanging around the courthouse waiting for voir dire. So, I would ask that you expedite the matter.

Counsel said he would go as rapidly as he could. When court reconvened after the noon recess, the, following dialogue took place:

THE COURT: Just so that we will know, ground rules, Plaintiffs will conclude their voir dire in about a half an hour. And then Defense will each be given an opportunity to do the voir dire.
MR. JOHNSON [Plaintiffs’ Attorney]: Your Honor, I wouldn’t be able to finish my voir dire in half an hour.
THE COURT: Well, you will need to because we’re going to conclude that and allow the Defendants to proceed at that time.
MR. JOHNSON: Your Honor, I would like to submit the questions that I would want to ask at some point that I’m not going to be allowed to ask because I think I am going to be deprived of a fair trial if I am not allowed to do complete and full voir dire for my client. So at some point, if you cut me off, I would like to have the opportunity to present to you all of the questions which I’m going to be able to ask so they can be in the record.
THE COURT: You can make a record.

Plaintiffs’ counsel continued his questioning of the jury. He stopped questioning sua sponte and stated:

*285MR. JOHNSON: Your Honor, as you know, I do have other questions, but I’ll just submit those to you later. I’m not really concluded, but I am concluding because of the time constraint.

The trial court then turned the voir dire questioning over to defense counsel who continued for approximately forty-five minutes. The trial court concluded voir dire with the question as to whether any prospective juror, after reflection, wished to modify or change any answer previously given. Two members of the venire responded.

The court recessed and the jury panel left the courtroom. The judge asked the plaintiffs if they had any challenges for cause. Plaintiffs’ attorney answered:

MR. JOHNSON: Yes. Before we do that, I’d like to make our record, please.
THE COURT: You may mark whatever questions you have and I will show those as those are the questions you would have asked,- had you been given more time.
MR. JOHNSON: What we would like to do would be to prepare a pleading and have those attached as an exhibit and provide it to the Court tomorrow.
THE COURT: You may do that. Are there challenges for cause then?
MR. JOHNSON: Yes, your Honor. May I have a few moments to consult with my co-counsel?
THE COURT: Sure ... Do you have your strikes for cause? And if you do them in numerical order, it would be helpful.
MR. JOHNSON: First, for the record, Plaintiff has not been given an opportunity to full — full opportunity to voir dire this panel, and as such the Plaintiffs are not in a position to appropriately exercise their challenges for cause and have been hampered in their ability to determine which of these people should be challenged for cause.
We will challenge for cause, but we do not want that to be seen as any waiver of what we believe to be a very serious infringement on the right of these Plaintiffs to full and fair voir dire, which Missouri courts have held on a number of occasions must be done in order to fully develop information to select a qualified panel. We don’t believe that that has been done, and don’t believe that there is going to be a fair trial because of that.

Ten of the plaintiffs’ thirteen challenges for cause, were sustained. Plaintiffs’ counsel then made the following comments.

MR. JOHNSON: Finally, your Honor, we have not had the opportunity to develop the information necessary to challenge all of those who raised their hands with regard to the question concerning their opinions about medical malpractice litigation, personal injury, and product and other types of litigation in general; those who felt there were too many frivolous suits, those who felt there should be a cap on recoveries. We did not have the opportunity to make inquiry of all of those folks, and as a result, I’m sure there are some of them that should be stricken or that I should have good cause to strike that I simply do not have the information before me to do so.

Although no useful purpose is served by filing the unasked questions the next day, as plaintiffs’ counsel told the court he would do, they were not filed as announced. It was not until the plaintiffs filed their motion for new trial that the questions were supplied to the court. Attached to the motion for new trial were 42 pages of mostly single-spaced, typewritten and handwritten notes covering the jury selection process. This unabridged listing has been shortened, on appeal, to 10 questions on damages which plaintiffs tell us are to be found in the 42 pages that were attached to the motion for new trial.

Issue

The primary issue presented by the parties is whether the trial court abused its discretion by limiting the plaintiffs’ voir dire examination. The plaintiffs claim, on appeal, that the limitation prevented them from making an adequate inquiry on the subject of damages, which, in turn, denied them a meaningfid exercise of their challenges. The plaintiffs’ complaint focuses on the 30-minute warning given after the noon recess, arguing that the court’s action was not prompted by a motion from the defendant, nor resulted from improper conduct by plaintiffs’ counsel. The *286defendant argues that the court did not abuse its discretion and further maintains that the record below was insufficient to inform the trial court of the claimed error.

The initial question presented by the plaintiffs is whether the trial court may limit voir dire examination at the outset of the trial or while voir dire is taking place. Although we do not regard the record as having been adequately preserved, we have addressed this issue because of its importance. We find that there was no per se abuse of the court’s discretion in limiting the plaintiffs’ overall examination to approximately 1¾ hours, or to “about a half an hour” following the noon recess.

Purpose of voir dire

The essential purpose of voir dire is to provide for the selection of a fair and impartial jury through questions which permit the intelligent development of facts which may form the basis of challenges for cause, and to learn such facts as might be useful in intelligently executing peremptory challenges. See State v. Skelton, 851 S.W.2d 33, 35 (Mo.App.1993). It is designed to insure that the parties have fair and impartial individuals serving as jurors. See State ex rel. Missouri Highway & Transp. Comm’n v. Buys, 909 S.W.2d 735, 737 (Mo.App.1995).

Control of voir dire

The “control of the voir dire is within the discretion of the trial court [and] only an abuse of discretion and likely injury will justify reversal.” State v. Parker, 886 S.W.2d 908, 920-21 (Mo. banc 1994)(citing State v. Bannister, 680 S.W.2d 141, 145 (Mo. banc 1984)). While broad discretion is vested in the trial court in determining the propriety of the questions asked during voir dire, Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 866 (Mo. banc 1993), “no fixed and inflexible rule may be laid down which may determine the extent to which counsel may go in the examination of jurors upon voir dire.” State v. Crockett, 419 S.W.2d 22, 26 (Mo.1967).

Standard of review — Abuse of discretion

An abuse of discretion occurs when the trial court’s ruling is clearly against the logic of the circumstances then before the court, and is so arbitrary and unreasonable that “it shocks the sense of justice” and indicates a lack of careful consideration. Richardson v. State Highway & Transp. Comm’n, 863 S.W.2d 876, 881 (Mo. banc 1993). “Appellate review of the trial court’s exercise of discretion does not pivot on whether reviewing court would have exercised its discretion in a like manner, but whether trial court abused its discretion.” In re $29,000.00 in U.S. Currency, 682 S.W.2d 68, 75 (Mo.App.1984). “On appeal, discretionary rulings are presumed correct, and the appellant bears the burden of showing the abuse of discretion.” Anglim v. Missouri Pac. R.R. Co., 832 S.W.2d 298, 303 (Mo. banc.1992).

Reasonable latitude allowed in voir dire examination

Missouri law allows a reasonable latitude in examining prospective jurors on voir dire about possible bias. Littell v. Bi-State Transit Dev. Agency, 423 S.W.2d 34, 37 (Mo.App.1967); Peth v. Heidbrier, 789 S.W.2d 859, 863 (Mo.App.1990). While it is proper that “counsel should be allowed reasonable latitude in the examination of prospective jurors, there are limits to the scope of permissible examination.” State v. Norton, 681 S.W.2d 497, 498 (Mo.App.1984). “The right to question the jury panel is not absolute as it is hedged with restrictions to insure that the inquiry is not perverted.” Littell, 423 S.W.2d at 37. However, the voir dire process “is also one of the highest duties of courts, in the administration of the law concerning selection of jurors and juries, to seek to accomplish that purpose [of an impartial jury].” Id. at 38 (citing Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695 (1939)).

Lack of W arning

Initially, we review the suggestion that the court limited voir dire to 30 additional minutes without prior warning. The record reveals that during a pre-trial conference, held a number of days before commencement of the trial, the parties were *287advised by the court that they could expect testimony to begin on the day the jury was selected. It is apparent that if evidence is to be presented on the first day, the examination of the jury panel must be concluded close to mid-afternoon. Furthermore, the direction to counsel to complete voir dire “in about a half hour” was preceded before the noon recess by the court’s admonition “to expedite [your questions] and move along ... So, I would ask that you expedite the matter.” Following the noon recess, the court advised counsel that he “should conclude his voir dire examination in about a half an hour.” Thus, the imposition of a time limitation was not unexpected, it having been preceded on two occasions with warnings that the length of voir dire was not unlimited. However, setting a 30 minute time limit on the voir dire examination immediately before counsel was to resume his examination placed an unnecessary burden on trial counsel. We do not encourage fixed time limitations on counsel’s examination. If the 30-minute admonition had been given before the noon recess, this problem may not have arisen. The court must be mindful of the attorney’s problems. An earlier warning would have allowed counsel more time in which to structure his voir dire examination to insure his questions were asked within the time allotted.

Per se abuse of discretion by limiting voir dire

Plaintiffs maintain that the imposition of a time limitation, whether with or without a prior warning, was a per se abuse of discretion. Neither the parties, nor our research, have located a Missouri case that discusses time limitations imposed on a voir dire examination.1 The plaintiffs refer us to other jurisdictions, principally Texas, for cases which have addressed the issue. The plaintiffs place reliance on De La Rosa v. State, which held that a time limitation of 30 minutes was reversible error. 414 S.W.2d 668, 669 (Tex.Cr.App.1967). Also, in Thomas v. State, the Texas appellate court held that a 35 minute limit was unduly restrictive. 658 S.W.2d 175, 176 (Tex.Cr.App.1983). The plaintiffs also cite to People v. Hernandez, which disapproved of a limitation of a total of 30 minutes for each side. 94 Cal.App.3d 715, 156 Cal.Rptr. 572, 574 (1979). Three other cases are cited in support of plaintiffs’ argument. In State v. Roberson, the Connecticut Supreme Court held that a one-hour limitation was arbitrary and an abuse of discretion. 173 Conn. 102, 376 A.2d 1087, 1088 (1977). In State v. Strange, a 10-minute limitation was held to be reversible error. 619 So.2d 817, 819 (La.Ct.App.1993). See also Ratliff v. State, 690 S.W.2d 597, 598 (Tex.Cr.App.1985) (holding that a one hour limitation was an abuse of discretion).

The defendant, on the other hand, directs us to cases from sister states which indicate that the limitation applied here was within reasonable standards. For example, in Santos v. State, the court held that a one-hour time limit on the defendant’s voir dire was not an abuse of discretion where counsel did not show the trial court the questions he would have asked if he had been allowed additional time. 681 S.W.2d 208, 210 (Tex.App.1984). In Whitaker v. State, the appellate court ruled that there was no abuse of discretion in limiting defendant’s voir dire to 50 minutes. 653 S.W.2d 781, 782 (Tex.Cr.App.1983). See also People v. Garrow, 151 AD.2d 877, 542 N.Y.S.2d 849, 851 (1989) (finding no abuse of discretion of 10 minutes to each side in each of the first three rounds, and three minutes in the fourth round where trial counsel had provided extensive questions for the court to ask the jury beforehand).

Illustrative of this point is Linder v. State, where the state was asking for the death penalty. 485 N.E.2d 73, 75 (Ind.1985). Jury selection was complicated by extensive pretrial publicity, coupled with a denial of the defendant’s motion for change of venue. Id. at 75-76. Most of the panel members had heard of the case. Id. The trial court was relying heavily on the voir dire examination to choose an impartial jury. The court limited each party to two hours for each panel of *28812, and an additional five minutes for each individual panelist. Id. at 76. The Indiana Supreme Court held that the time constraints placed on voir dire by the trial judge was not an abuse of discretion. Id. at 77. In reaching this determination, the court reviewed 27 questions that counsel was not allowed to ask and concluded that the questions had been covered by the court or by counsel. Id.

The facts of this case are quite different from those cases cited by the plaintiffs, not only as to the amount of time allowed for voir dire (a total of approximately one hour and forty-five minutes) but also how and when the time limitation was imposed. The trial court did not limit the time of counsel’s examination as severely as in the cases cited by plaintiffs. A careful reading of the cases on which plaintiffs rely demonstrate rather clearly that the trial judges imposed a fixed time limit at the outset, without any consideration of the many variables of voir dire examination. The longest voir dire held to be an abuse of discretion was one hour. See Ratliff, 690 S.W.2d at 601; State v. Roberson, 376 A.2d at 1088. In none of the cases cited by the plaintiffs did counsel have approximately one hour and forty-five minutes to complete the examination. In the case before us, the trial court did not impose unyielding or rigid time limits, at the outset or elsewhere.

Many of these cases acknowledge the trial court’s obligation to dispatch its business with promptness. However, they also recognize the dangers of arbitrary, unyielding time limits because of the unpredictability of the panel member responses which make it difficult to successfully determine beforehand the amount of time necessary to successfully complete a voir dire examination. See Thomas, 658 S.W.2d at 176; Hernandez, 156 Cal.Rptr. at 573. Time limits cannot be set without regard to the variable latitude which is reasonably necessary to accomplish the purpose of voir dire. See Roberson, 376 A.2d at 1088. When a court imposes time limits on voir dire examination, it must exercise great caution to avoid an abuse of discretion. See Strange, 619 So.2d at 820. While the efficient administration of jury resources is to be encouraged, it can not be accomplished at the price of an arbitrarily limited voir dire examination.

There was no per se abuse of discretion in limiting plaintiffs’ voir dire, which continued for approximately one hour and forty-five minutes, where the parties had been previously provided with written questionnaires covering general information of each panel member and the court had also covered other areas of juror qualifications. The time restriction, under the circumstances described, was not an abuse of discretion.

Preservation of the record

The defendant maintains that there was not an adequate record made to preserve the matter for appellate review. The plaintiffs’ respond that the record was preserved. Plaintiff’s statement to this court: “[t]he bottom line is that the questions [plaintiffs] sought to ask were presented to the trial court not only in the form of the written questions ... but also in a somewhat abbreviated oral form by counsel at the close of voir dire.” The plaintiffs’ reference to the “written questions” is to the 42 pages attached to their motion for new trial, and the “somewhat abbreviated oral form [of preserving the record]” denotes the subjects (medical malpractice litigation, etc.) mentioned by plaintiffs’ counsel after the court had recessed to make the jury strikes.

Sufficiency of Objection

The purpose of an objection is to eliminate error, if possible, by allowing the trial court to rule intelligently. See Schmitz v. Director of Revenue, 889 S.W.2d 883, 886 (Mo.App.1994). It is a settled principle of Missouri trial practice that to preserve trial court error it is necessary to give the trial court the first opportunity to correct the error, State v. Jordan, 751 S.W.2d 68, 75 (Mo.App.1988), without the delay, expense, and hardship of appeal and retrial. See Pruitt v. Community Tire Co., 678 S.W.2d 424, 429 (Mo.App.1984). The rule “will be strictly enforced to effectuate [its] intended purpose.” Id. (citations omitted). Its purpose is the delivery of expeditious, and expectantly, a fair trial. Otherwise, the rule’s purpose is defeated if the error receives its first review in the appellate court. The re*289quirement that the trial court be given the first opportunity to correct the error is incorporated into our rules, which state: “allegations of error not presented to or expressly decided by the trial court shall not be considered in any.civil appeal from a jury tried case.” Rule 84.13(a) V.A.M.R. (emphasis added).

Missouri courts have routinely required that the party aggrieved by a ruling provide more than a barren objection. The trial court must be informed in what manner its ruling was incorrect. In that respect, since affirmative action was necessary to accomplish anything in this ease, it was incumbent upon the plaintiffs to make known what action they desired the court to take, State v. Brown, 364 Mo. 759, 267 S.W.2d 682, 690 (1954), and the plaintiffs had the burden of making the basis of the objection reasonably apparent to the trial court. See Hayes v. Hudson Foods, Inc., 818 S.W.2d 296, 300 (Mo.App.1991). A proper objection must call the court’s attention to what is lacking. Pazdernik v. Decker, 652 S.W.2d 319, 321 (Mo.App.1983).

The requirement that the trial counsel has a duty to preserve the record by presenting the basis for an objection, and how that should be accomplished, is not new to the voir dire process. See State v. Dixon, 717 S.W.2d 847, 848 (Mo. banc 1986). Missouri case law declaring counsel's duty dates at least to Collins v. Hamper, where the defendant objected to a voir dire question without stating grounds for his objection. 272 S.W. 1053 (Mo.App.1925). The appellate court held that counsel “must not only make timely objection thereto, but must state the grounds therefore.” Id. at 1054. Also, in Howlett v. Randol, the defendant did not give the basis for his objection at the time the alleged error occurred during the voir dire examination. As a result, the appellate court held that there was no appellate review. 39 S.W.2d 463, 464 (Mo.App.1931). See also McDonnell v. Cornelison, 25 S.W.2d 558, 561-61 (Mo.App.1930).

In this case, the plaintiffs argue that they provided the grounds for their objection by virtue of counsel’s “oral statement” to the court, as well as in the voir dire questions filed with the motion for new trial. The oral statement was made after the jury panel was released, the court had convened with counsel to select the jury, and challenges for cause had been made. Missing from the record, when plaintiffs’ counsel completed his examination, are any grounds informing the trial court of the basis for terminating his examination. There is no request for any relief.

A number of other Missouri cases have discussed the obligation of trial counsel during voir dire to make the trial court aware in what respect its ruling was incorrect during the voir dire process. In State v. Brown, a juror’s age disqualified him, and counsel informed the court about the statute that rendered the juror ineligible. 364 Mo. 759, 267 S.W.2d 682, 691 (1954). The Missouri Supreme Court stated that in order to preserve the record “a party, at the time the ruling or order is ... sought, makes known to the court that action which he desires the court to take.” Id. 267 S.W.2d at 690. On rehearing, the court held that it would not be in the interest of the administration of justice “to hold that by merely making some statement in the record, without a request for any action by the Court (when affirmative action would be required to accomplish anything), a party can claim the Court erred in failing to take some action which was not requested.” Id. at 691.2

A litigant’s “method of challenging a trial court’s ruling on permissible voir dire questions should be specific,” pursuant to the ruling of State v. Brown, 547 S.W.2d 797, 800 (Mo. banc 1977). For example, in State v. Townsend, the court indicated that preservation of the record may be accomplished in any number of ways, including “rephrasing *290the question or making a record at the bench.” 593 S.W.2d 639, 640 (Mo.App.1980).

Any doubt of counsel’s obligation to inform the trial court of the voir dire question he proposes to ask, was laid to rest by the Missouri Supreme Court in State v. Dixon. 717 S.W.2d at 848. The trial court in Dixon .refused to allow appellant to ask the panel whether they could consider the lesser included offense of manslaughter. Appellant made an “offer of proof’ wherein the attorney identified the area of inquiry, and why he should have been allowed to ask the question. The “offer of proof’ did not, however, give the trial court any indication of the areas of inquiry that appellant wished to pursue, nor did it formulate a question for the trial court’s consideration. Id. Judge Blackmar, speaking for the Court, stated that “it is entirely appropriate to require strict compliance” with the method for preserving a claim of error. Id. at 849. “The trial court had no obligation to frame the question for [counsel],” and “the trial court’s rulings were in accord with the existing case law.” Id. at 848.

Missouri has a well-defined method of preserving trial court error for appellate review of the voir dire examination. The objection here fell short because, when affirmative relief was needed, no basis was given for the objection in the form of the unasked questions. The plaintiffs’ objection faded to supply what additional inquiry counsel wished to make. See Jenkins, 494 S.W.2d at 18; Dixon, 717 S.W.2d at 848. Because the objection failed to inform the court, it is considered nothing more than a general objection, which preserves nothing for review. See Wilson, 888 S.W.2d at 750. An assignment of error must be first presented to the trial court rather than the appellate court. Any other holding violates this fundamental principle of trial practice, and importantly, it is disruptive to the opposing counsel who has a right to rely on it.

Furthermore, there was not a request for more time to ask the questions which are now identified as having denied the plaintiffs a fair trial. The failure to request additional time was an important factor in State v. Parker. 886 S.W.2d 908 (Mo. banc 1994). Parker’s counsel failed to object to the trial court’s limitation of two days in which to qualify a death penalty jury. 7A at 921. The court noted that not only did he fail to object, but that he did not request additional time to question the jury panel. Parker’s counsel, if he believed his time had been inappropriately limited, should have requested additional time if he wished to preserve the error. Id. See also Savant v. Lincoln Eng’g., 899 S.W.2d 120, 123 (Mo.App.1995). As Judge Berrey noted in Clark v. Board of Directors of the School Dist. of Kansas City:

We find unconvincing appellant’s argument that any objection to the time limits imposed by the Board would have been futile. Such an objection may or may not have been futile. We will never know how the Board might have responded because no objection was made by appellant despite having the opportunity to do so.

915 S.W.2d 766, 773 (Mo.App.1996). Because counsel made no request for additional time, we will never know whether additional time would have been forthcoming.

The plaintiffs maintain, however, that the objection was more than a general one. They contend that the trial court was informed of the grounds in that “[t]he bottom line is that the questions [plaintiffs] sought to ask were presented to the trial court not only in the form of the written questions ... but also in a somewhat abbreviated oral form by counsel at the close of voir dire.”

Timeliness of the oral statement

After the jury had been released from the court room, the court and counsel retired to make strikes. Strikes for cause had been made. At this point counsel made his “oral statement” about his inability to develop the subjects of medical malpractice litigation, personal injury, product and other litigation, frivolous lawsuits, and caps on recoveries. He maintains that this was sufficient to preserve the matter for appeal.

An untimely objection may be deemed waived or abandoned. See Business Men’s Assurance Co. of America v. Graham, 891 S.W.2d 438, 455 (Mo.App.1994). If a litigant desires to complain of the trial court’s action, if affirmative action is needed, *291it must be called to the court’s attention at the time when the error first appears. Brown v. Thomas, 316 S.W.2d 234, 237 (Mo.App.1958). Failure to do so when the opportunity presents itself is a waiver of the claimed error. Id. “One cannot sit by and gamble on the outcome and, if he loses the gamble, then, for the first time, make a tergiversating objection. If he chooses to gamble he must abide his wager.” Id. (citations omitted.)

Stucker v. Rose is a case factually similar to the one before us. 949 S.W.2d 235, 236 (Mo.App.1997). The trial court sustained plaintiff’s objection to defendant’s comments made during voir dire. Plaintiff told the court he would make a record later. He moved for a mistrial when counsel and the court were in conference, following the voir dire. Id. The trial court denied the motion, and the Southern District affirmed, relying on McMillin v. Union Elec. Co., 820 S.W.2d 352 (Mo.App.1991). The Stucker court denied relief because the plaintiff’s request for a mistrial was made after the voir dire was completed and during an in-chambers jury selection conference. Stucker, 949 S.W.2d at 237-38. Any request for affirmative relief after the error had passed was untimely. Id.

Douglass v. Safire stands for “the usual rule that the trial court must be given the opportunity to correct error while correction is still possible.” 712 S.W.2d 373, 374 (Mo. banc 1986). Appellant in that case did not object until after the jury was discharged. The Supreme Court held that appellant’s claim of error was waived, and stated that “[o]ur holding is in accord with the usual rule that the trial court must be given the opportunity to correct error while correction is still possible.” Id. Appellant’s position placed the entire burden of discovering the error on the trial court. The Court responded that “[n]o square decision of ours is cited in support of the proposition” that appellant did not have to present the issue to the trial court first, while it was still possible to correct the error. Id.

Finally, in M & A Elec. Power Coop. v. True, the trial court was charged with error in not granting a mistrial when defendant’s counsel injected “financial conditions” and other prejudicial statements before the jury during voir dire examination. 480 S.W.2d 310, 314 (Mo.App.1972). No objection was made at the time the prejudicial remarks were made. At the close of the voir dire examination, plaintiff made a motion for mistrial. The appellate court held that the motion at the close of the voir dire examination was not timely, and thus no reversible error could be predicated upon the denial of the motion. Id. at 313.

If the error is to be corrected, the oral statement setting forth the grounds for the objection must have been made when counsel stopped his examination sua sponte. It was then that the court should have been informed of the questions that remained unasked. Listing additional subjects of inquiry after challenges for cause had been made and ruled upon, was too late.

Written questions

It is also argued that plaintiffs’ 42 pages of voir dire questions attached to the motion for new trial preserved the record. However, the trial court should not be required to sift through an unabridged version of questions to locate proper questions. The court in Barrett v. State, stated it appropriately:

[C]ounsel in the case at bar sought to extend the voir dire proceedings indefinitely by proposing to propound an unspecified number of additional questions to the panel. His request did not state why he required additional time in this particular ease, nor did his unorganized array of questions present the court with a concise proposal upon which to base his decision on whether to continue voir dire or not.

516 S.W.2d 181, 182 (Tex.Crim.App.1974). This court will not sanction this method of preserving the record.

The dissent volunteers yet another theory which would excuse the need to make a record. If the trial court’s ruling is based on an incident “extraneous to the proceedings,” it is suggested that we may forego the objection, because to make one would be futile. It is contended that the futility argument is bolstered because the trial court agreed to allow the questions to be filed later. The *292event, which is considered “extraneous to the proceedings” arose out of the court’s discussion with an individual who apparently coordinates the jury pool for the judges in Boone County.3 It is puzzling how this incident can be viewed as tantamount to a judicial stone wall, incapable of change.

Just as mystifying is the certainty with which the dissent concludes that the judge agreed with counsel that he could file the unasked questions at a later time. Twice, when counsel announced that he would file the unasked questions at a later time, the judge responded: “You may do that,” and “You may make a record.” We are unable to conclude that this colloquy in some way signals an agreement to file questions at a later time in order to make a record. To identify this as an agreement is speculative; it ignores the fact that it is not the court’s duty to make the record and that there was nothing filed the next day.

However, the key difficulty with the dissent’s justification for excusing counsel from making a record, albeit a longstanding requirement of trial practice, is the belief that any objection would have been futile.4 If there is any justification to the argument that an objection would have been futile, it is not because the court’s reason was extraneous to the trial. However, appellate courts may not, on this record, engage in a guessing contest as to whether an objection would have been futile, absent a clear indication that it would be useless, as suggested by Hyde v. Butsch, 861 S.W.2d 819 (Mo.App.1998). The factual situation in Hyde, which is discussed in the dissent, is quite different from what took place in this case.

Our courts have been quite consistent in repudiating the futility argument; most recently by this court in French v. Missouri Highway & Transp. Comm’n, 908 S.W.2d 146 (Mo.App.1995). French’s counsel contended that any objection to his opponent’s closing argument would have been futile, because the objection would have been too late to introduce contrary evidence and a cautionary instruction would have only highlighted the issue for the jury. Id. at 151-52. The court held that “[e]ounsel had no right to ignore his obligation to object and to request a cautionary instruction so that the trial court could exercise its discretion to determine whether a cautionary instruction was either necessary or adequate in the circumstances.” Id. at 152. In Dunn v. St. Louis-San Francisco R.R. Co., the Supreme Court remarked that although defense counsel vigorously and successfully objected to questions designed to vilify the defendant’s billing practices, he voiced no objection when the question was asked of one witness. 621 S.W.2d 245, 251 (Mo. banc 1981). The defendant’s contention that any objection “would have been futile,” did not excuse defense counsel’s failure to object. Id. at 251. In Clark v. School Dist. of Kansas City, this court again rejected the argument that an objection would have been futile. 915 S.W.2d at 772. We observed that the rules of practice are designed to promote the ends of justice, not to defeat them. Id. (citing Mills v. Federal Soldiers Home, 549 S.W.2d 862, 868 (Mo.1977)). Our research has failed to find any factually similar cases, which have excused an objection because it would have been futile to make the objection.

The Missouri Supreme Court has cautioned that refuge cannot be found by negligently failing “to make proper objections ... because the trial situation may be considered ‘difficult to deal with by objections.’ ” Critcher v. Rudy Fick, Inc., 315 S.W.2d 421, 428 (Mo.1958) (citations omitted). To waive the requirement of an objection, for whatever reason, sends a confused message to the bar and unnecessarily increases the expenses and *293delay of litigation. A court’s discussion about the effective utilization of jurors should not automatically and irrevocably stamp an objection as futile and, as such, delegate the first opportunity of correcting the error to the appellate court.

Conclusion

By affirming this judgment, we are not placing our stamp of approval on trial court’s imposition of time limits on voir dire examinations. In all likelihood, such action may unnecessarily jeopardize a party’s full opportunity to voir dire prospective jurors. We are satisfied that trial counsel and judges are capable of conducting adequate voir dire examinations without the necessity of imposing uncompromising time limitations.

The judgment is affirmed.

ULRICH, C.J., BERREY, BRECKENRIDGE, SPINDEN, SMART and HOWARD, JJ., concur.

LAURA DENVIR STITH, J., dissents in separate opinion filed.

LOWENSTEIN, ELLIS and EDWIN H. SMITH, JJ., concur in opinion of LAURA DENVIR STITH, J.

. State v. Parker, 886 S.W.2d 908 (Mo. banc 1994) considered a time limitation of two days in which to qualify a death penalty jury. The court reviewed the issue under "plain error” and found no manifest injustice.

. In State v. Jenkins, the Supreme, Court again found no abuse of discretion by the trial court in its control of voir dire, when the appellant failed to develop what additional inquiry he may have wished to make. 494 S.W.2d 14, 18 (Mo.1973). Likewise, in State v. Coats, no abuse of discretion was found because the defendant “made no attempt to restate the question properly.” 835 S.W.2d 430, 433 (Mo.App.1992).

. The notion that this sketchy discussion was the event that caused the limitation of voir dire and, therefore, could not have changed the judge’s mind if appropriately handled, ignores what takes place in every multi-judge courthouse in this state, every week of the year. It is not unique to this case. It is plausible that the proper utilization of the jury pool may have been part of the court's reason. However, an appellate court should not speculate that remarks by the judge concerning the court’s responsibility to monitor its jury pool, formed the sole basis for her decision.

. Interestingly, the plaintiffs do not argue that to have objected would have been futile. Indeed, neither the transcript nor their brief suggests that they viewed the matter as futile.