State v. Ealy, 624 S.W.2d 490 (Mo. Ct. App. 1981). · Go Syfert
State v. Ealy, 624 S.W.2d 490 (Mo. Ct. App. 1981). Cases Citing This Book View Copy Cite
70 citation events (5 in the last 25 years) across 3 distinct courts.
Strongest positive: Brown v. Collins (moctapp, 2001-06-05)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 32 distinct citers. How cited ↗
discussed Cited as authority (rule) Brown v. Collins
Mo. Ct. App. · 2001 · confidence medium
Discussion Essential to our jury system is the fact that “[t]he competent juror ‘must be in a position to enter the jury box disinterested and with an open mind, free from bias or prejudice.’” Id. (quoting State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.
cited Cited as authority (rule) Rodgers v. Jackson County Orthopedics, Inc.
Mo. Ct. App. · 1995 · confidence medium
See § 494.470, RSMo 1994; 4 Ray v. Gream, 860 S.W.2d 326, 332 (Mo. banc 1993); State v. Ealy, 624 S.W.2d 490, 493-94 (Mo.App.1981).
cited Cited as authority (rule) State v. Brewster
Mo. Ct. App. · 1992 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
cited Cited as authority (rule) State v. Edmonson
Mo. Ct. App. · 1992 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
cited Cited as authority (rule) State v. Lynch
Mo. Ct. App. · 1991 · confidence medium
(Citations omitted).” State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
cited Cited as authority (rule) State v. Morehouse
Mo. Ct. App. · 1991 · confidence medium
See State v. Williams, 643 S.W.2d 832, 834 (Mo.App.1981); State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
cited Cited as authority (rule) Catlett v. Illinois Central Gulf Railroad
Mo. · 1990 · confidence medium
The competent juror “must be in a position to enter the jury box disinterested and with an open mind, free from bias or prejudice.” State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
cited Cited as authority (rule) State v. Schwer
Mo. Ct. App. · 1988 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 [10-12] (Mo.App.1981).
discussed Cited as authority (rule) State v. Brown
Mo. Ct. App. · 1988 · confidence medium
When asked whether knowing defendant’s parents would “affect your ability to sit and listen to the evidence?” Johnson replied that he would “rather not sit on the jury.” When the panel was asked if anyone had “religious scruples against drinking”, Johnson stated that he was “a Christian, and_ against drinking, period.” “A defendant has the right to be judged by fair and impartial jurors who will accord each witness’s testimony the weight to which it is entitled, and a venireman whose answers indicate that he cannot do this should be discharged for cause.” State v. Ealy,…
discussed Cited as authority (rule) State v. Walls (2×)
Mo. · 1988 · confidence medium
We realize that the trial court’s failure to further question a juror regarding any possible prejudice may undercut the trial court’s discretion, State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981), but here, in response to additional questions posed by Mr. Kessler, Mr. Mead-er indicated he did not have an opinion as to appellant’s guilt or innocence.
cited Cited as authority (rule) State v. Coleman
Mo. Ct. App. · 1987 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
discussed Cited as authority (rule) State v. Johnson (2×)
Mo. · 1986 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
cited Cited as authority (rule) State v. Riley
Mo. Ct. App. · 1986 · confidence medium
Id. at 832 [4]; State v. Ealy, 624 S.W.2d 490, 403 [10—12] (Mo.App.1981).
cited Cited as authority (rule) State v. Hooker
Mo. Ct. App. · 1986 · confidence medium
State v. Ealy, 624 S.W.2d 490, 494 [13,14] (Mo.App.1981).
cited Cited as authority (rule) State v. Barks
Mo. Ct. App. · 1986 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
cited Cited as authority (rule) State v. Jones
Mo. Ct. App. · 1985 · confidence medium
Lovell, supra at 444 ; State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
discussed Cited as authority (rule) State v. Counts
Mo. Ct. App. · 1985 · confidence medium
Defendant cites State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981) for the proposition that when a prospective juror gives equivocal answers which reveal uncertainty as to impartiality, the failure of the trial court to further question the juror, may, in and of itself, constitute reversible error.
cited Cited as authority (rule) State v. Willis
Mo. Ct. App. · 1985 · confidence medium
State v. Williams, 643 S.W.2d 832, 834 (Mo.App.1982); State v. Ealy, 624 S.W.2d 490, 493 (Mo.App. 1981).
discussed Cited as authority (rule) State v. Draper (2×)
Mo. · 1984 · confidence medium
Lovell, supra at 444 ; State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
discussed Cited as authority (rule) State v. Adkins
Mo. Ct. App. · 1984 · confidence medium
Although the trial court is vested with sound discretion in ruling on a challenge for cause, State v. Ealy, 624 S.W.2d 490, 493 [8, 9] (Mo.App.1981), the court had no occasion to exercise its discretion because the above-mentioned veniremen did not state any grounds which would put their qualification to sit as jurors in question.
cited Cited as authority (rule) State v. Leipus
Mo. Ct. App. · 1984 · confidence medium
State v. Williams, 643 S.W.2d 832, 834 (Mo.App.1982); State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981); State v. Carter, 544 S.W.2d 334, 337 (Mo.App.1976).
cited Cited as authority (rule) State v. Hemphill
Mo. Ct. App. · 1984 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
discussed Cited as authority (rule) State v. Herndon
Mo. Ct. App. · 1984 · confidence medium
State v. Williams, 624 S.W.2d 127, 129 (Mo.App.1981); State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981). (4) The record reveals that inquiry by the prosecutor in fact disclosed two prospective jurors who were not qualified, because they disclosed that they would not follow the law, in that one venireperson required “absolute certainty,” and another required proof of guilt of one-hundred percent.
cited Cited as authority (rule) State v. Johnson
Mo. Ct. App. · 1984 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
discussed Cited as authority (rule) State v. Hunt
Mo. Ct. App. · 1983 · confidence medium
If, in response to questions regarding potential prejudice, a venireman gives equivocal answers, the judge has a duty to seek clarification of those answers, State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981), unless the clarification comes from counsel.
discussed Cited as authority (rule) State v. Butler (2×)
Mo. Ct. App. · 1983 · confidence medium
See also State v. Morrison, 557 S.W.2d 445, 447 (Mo. banc 1977); State v. Ealy, 624 S.W.2d 490, 492 (Mo.App.1981).
cited Cited as authority (rule) State v. Hendrix
Mo. Ct. App. · 1982 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 [10-12] (Mo.App.1981).
cited Cited as authority (rule) State v. Williams
Mo. Ct. App. · 1982 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
cited Cited as authority (rule) State v. Boyd
Mo. Ct. App. · 1982 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
discussed Cited as authority (rule) State v. Taylor (2×)
Mo. Ct. App. · 1982 · confidence medium
State v. Ealy, 624 S.W.2d 490, 493 (Mo.App.1981).
discussed Cited "see" State v. Bey (2×)
N.J. · 1988 · signal: accord · confidence high
As the Supreme Court of Missouri has explained, in an analogous context, “ ‘Purity of the right to be tried by an impartial jury is so zealously guarded that an accused may covet his peremptory challenges and “spend” them as he alone sees fit---- [I]f an accused is not presented with a full panel of jurors objectively demonstrated as qualified before he exercises his peremptory challenges, his given number of peremptory challenges is proportionately reduced and his right to “spend” them as he alone sees fit is accordingly impinged.’ ” State v. Morrison, 557 S.W.2d 445, 446 (Mo.…
cited Cited "see" State v. Newton
Mo. Ct. App. · 1982 · signal: see · confidence high
State v. Shields, 619 S.W.2d 937, 939 (Mo. App. 1981); see State v. Ealy, 624 S.W.2d 490, 493 (Mo. App. 1981).
Retrieving the full opinion text from the archive…
STATE of Missouri, Plaintiff-Respondent,
v.
Theorist EALY, Defendant-Appellant
WD 32271.
Missouri Court of Appeals.
Oct 27, 1981.
624 S.W.2d 490
1981 Mo. App. LEXIS 3486
James W. Fletcher, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for defendant-appellant., John Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Manford, Dixon, Nugent.
Cited by 43 opinions  |  Published
DIXON, Judge.

Defendant appeals a judgment and conviction upon a jury verdict of guilty of three counts of sale of a controlled substance, § 195.020 RSMo 1978. The sentence was for five years on each count to run concurrently. The controlling issue requiring reversal is the defendant’s claim that the trial court erred in overruling a challenge for cause to a juror.

Only a brief statement of facts is required. The state’s evidence consisted of testimony by an undercover police officer and a chemist employed by the police laboratory. The policeman testified that he accompanied an informant to an apartment where he purchased two “Demerols” from defendant. He further testified that he returned to the same apartment on two other occasions, each time purchasing several Percodan tablets from the defendant.

An expert in forensic chemistry, employed at the police laboratory, testified that a tablet from the first purchase contained pethidine and that tablets from the two later purchases contained oxycodene.

Defendant took the stand and claimed that she had never seen the police officer prior to trial, and specifically denied selling him Demerols or Percodans at any time. She said she was not occupying her apartment on one of the dates the sales took place. She said she was staying with her mother in another apartment in the same building following the death of her father. Under this evidence, the issue of guilt or innocence turned on the credibility of the police officer.

[*492] In this factual context, the defendant asserts the trial court erred in overruling the defendant’s challenge for cause directed to juror Cota. The issue developed in the voir dire when defense counsel asked, “Is there anyone whose friends or family members have worked in the criminal justice system?” Venireman Cota replied that a cousin was with the F.B.I. and a former son-in-law was a police officer. ' The dialogue continued:

MR. ROGERS: . . . First of all, did you form any general impression of the honesty or dishonesty of either or both of these men?
MS. COTA: Yes.
MR. ROGERS: Different impressions or the same impression?
MS. COTA: No, the same.
MR. ROGERS: Okay. Was that a good impression?
MS. COTA: Yes, I think both are very dedicated.
MR. ROGERS: As I understand, both of these are the only two police officers you have known personally?
MS. COTA: Yes.
MR. ROGERS: Would you tend to think that since both of the police officers you knew personally were honest people that the State’s witness, who is also a police officer, would be honest?
MS. COTA: Yes. I might tend to think that.
MR. ROGERS: You would tend to think that any more than anyone else who will testify that is not a police officer?
MS. COTA: I don’t know. I might be more prejudiced that way.
MR. ROGERS: You might be more likely to believe a police officer than another witness, just because he’s a police officer?
MS. COTA: Probably.
MR. ROGERS: Thank you very much.

No further questions were asked of Ms. Cota by counsel or the court, and the defendant’s challenge for cause was overruled. The record shows that Ms. Cota did not serve on the jury, but it does not indicate whether defendant used one of her peremptory challenges to remove Ms. Cota from the panel.

The state first argues that the matter is not preserved. The argument is that under this record the juror may have been excused by the court on some other ground or may have been removed from the panel by peremptory challenge by the state. Cited in support are State v. Webster, 539 S.W.2d 15 (Mo.App.1976); State v. Tippett, 317 Mo. 319, 296 S.W. 132 (1927); State v. Brauch, 529 S.W.2d 926 (Mo.App.1975); State v. Battles, 357 Mo. 1223, 212 S.W.2d 753 (1948); State v. Mears, 588 S.W.2d 519 (Mo.App.1979).

The state argues that defendant’s point is not properly before this court for review because the record fails to show whether defendant was forced to expend a peremptory challenge to remove Ms. Cota from the jury panel and Ms. Cota did not serve on the jury. The state’s argument and its cited cases fail to address State v. Morrison, 557 S.W.2d 445 (Mo. banc 1977), which held that a defendant need not show that he has exhausted his peremptory challenges or that he used a peremptory challenge to dispose of the venireman in order to challenge on appeal the action of the trial court in overruling his challenge for cause. Id. at 447; State v. Taylor, 602 S.W.2d 820, 822 (Mo.App.1980); State v. Watson, 595 S.W.2d 754, 756 (Mo.App.1980). In so holding, the court in Morrison reiterated the well-settled principle in Missouri that a defendant is entitled to a full panel of qualified jurors before the exercise of his peremptory challenges. State v. Lovell, 506 S.W.2d 441, 443 (Mo. banc 1974).

What is troublesome is that the Morrison opinion in a footnote, supra at 447, n. 2, reserved opinion on the issue presented when the record on appeal does not disclose whether the- venireman may have been stricken by the state. The record presented in this case falls within the footnote in Morrison because this record does not show in what manner Ms. Cota was removed from the jury panel. In the circumstances[*493] of this direct appeal, with the possibility of the issue recurring by way of other post-conviction relief, it seems sensible to determine the question on the first appeal without delaying the matter until the record is corrected in some future post-conviction proceeding.

Exercising the discretion confided in this court with respect to the supplementation of the record on appeal, Rule 81.12(e), the jury list in the trial of this case has been ordered filed by the clerk of the trial court.

Examination of this document reveals that Ms. Cota was juror number 26 in a panel of 40 jurors and that jurors 9 and 10 were excused. Ms. Cota was, therefore, one of the panel of 24 required under § 546.210. The additional jurors present during voir dire were excused as surplus. The document further reveals that the defendant exercised his sixth and last peremptory challenge to remove Ms. Cota from the jury panel. In the light of that supplemental information, the question is squarely presented as to whether or not Ms. Cota was a qualified juror in this case.

In qualifying a panel of jurors, the narrow statutory exclusions listed at § 546.-100-.150 RSMo 1978 are not exhaustive. To be a competent juror an individual must be in a position to enter the jury box disinterested and with an open mind, free from bias or prejudice. State v. Pride, 567 S.W.2d 426, 432 (Mo.App.1978); State v. Carter, 544 S.W.2d 334, 337 (Mo.App.1976). A defendant has the right to be judged by fair and impartial jurors who will accord each witness’s testimony the weight to which it is entitled, and a venireman whose answers indicate that he cannot do this should be discharged for cause. State v. Dickerson, 588 S.W.2d 190, 192 (Mo.App.1979); State v. Spidle, 413 S.W.2d 509, 512 (Mo.1967); State v. Thrift, 588 S.W.2d 525, 528 (Mo.App.1979). Concomitantly, the failure of the trial court to excuse for cause a legitimately challenged venireman is reversible error. State v. Pride, supra at 432. Since the retention of a questionable juror might result in the ultimate necessity of a new trial, “[ejrrors in the exclusion of potential jurors should always be made on the side of caution.” State v. Carter, supra at 338.

Rulings on challenges for cause lie generally within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. State v. Royal, 610 S.W.2d 946, 950 (Mo. banc 1981). Likewise, all doubt as to the propriety of a ruling with respect to the qualifications of a juror is normally resolved in favor of the trial court. State v. Stewart, 596 S.W.2d 758, 760 (Mo.App.1980).

The broad discretion granted the trial judge is predicated in part, however, upon the requirement that the trial judge carefully consider the responses of the prospective jurors on voir dire and make an independent evaluation as to their qualifications. Lovell, supra at 444. The absence of an independent examination by the trial judge'justifies a more searching review by an appellate court of the challenged juror’s qualifications. State v. Holliman, 529 S.W.2d 932, 939 (Mo.App.1975); State v. Hall, 612 S.W.2d 782, 785 (Mo.1981). In instances where a prospective juror gives equivocal answers which reveal uncertainty as to his ability to be impartial, the failure of the trial judge to further question the juror to explore possible prejudice may undercut any basis for the trial judge’s exercise of discretion and constitute reversible error. Lovell, supra at 444; State v. Land, 478 S.W.2d 290, 292-93 (Mo.1972); Carter, supra at 337.

In numerous Missouri cases, no error has been found where the trial court overruled a challenge for cause to a venireman who initially expressed a tendency to believe a police officer over other witnesses, but who upon further questioning indicated an ability to evaluate all testimony by the same standard and accord both sides a fair trial, e.g., Dickerson, supra at 192-93; State v. Pitchford, 556 S.W.2d 57, 61 (Mo.App.1977); State v. Wraggs, 512 S.W.2d 257, 259 (Mo.App.1974).

In the present case, venirewom-an Cota stated that she “might be more[*494] prejudiced” in favor of a police officer’s testimony and that she would “probably” believe a police officer over another witness. The trial court made no attempt to clarify Ms. Cota’s position by questioning her further concerning her ability to be a fair and impartial juror. Given that failure, it is impossible to discern the basis for the trial judge’s decision to not exclude Ms. Cota for cause. Where the trial judge was able to elicit clarifying answers which removed the uncertainty concerning the venireman’s qualifications, and so gave the reviewing court a basis for deciding that the trial court had not abused its discretion, the decision may be sustained. Only the equivocal remarks of Ms. Cota which cast grave doubt on her ability to fairly weigh testimony, State v. Spidle, 413 S.W.2d 509 (Mo.1967), are present in this case.

In Carter, the venireman, a former policeman, stated he would be more inclined to believe the testimony of a security officer or a policeman. In reversing the trial court’s failure to strike the venireman for cause, the opinion focused on the failure of the trial court to further question the juror to explore possible prejudice. Ms. Cota’s equivocal answers were substantially the same as those of the juror in Carter. In Spidle, a case involving an assault on a state trooper, the challenged venireman had read of the case in a newspaper and testified that he might be prejudiced toward the trooper and that he would have to take the trooper’s word over the newspaper account. Holding that the venireman should have been excused for cause, the opinion in Spidle, supra, declared that “a defendant in a criminal case should not have to start out with a juror who feels that ... he would have to take the word of the prosecuting witness.”

In applying these principles to the facts' of the instant ease, it is to be noted that this case is one in which credibility of the police officer was directly contrasted with the credibility of the defendant who denied ever having made the sales about which the policeman testified. The police officer, in his testimony, gave conflicting evidence concerning the appearance of the apartment where the sales were made, both as to the interior of the apartment and the location of the apartment in the building itself. In a colloquy between the court and the counsel out of the hearing of the jury, the court described this testimony of the police officer as “incredible” and at the hearing on the motion for new trial, the court characterized the evidence of the police officer as “not as satisfactory as it might be.” Additionally, it is worth noting that the jury requested of the court the exhibits showing the interior and exterior of defendant’s apartment and the transcript of the witness’s testimony. The court was unable to furnish the transcript, but the exhibits went to the jury. The jury imposed only the minimum punishment prescribed for the violation charged, together with a recommendation that the sentences be served concurrently. The record in this case thus discloses a close question and one where the possible bias of a juror towards the testimony of a policeman could very well have had an effect upon the deliberations of the jury. It must be concluded that the failure of the trial court to sustain the defendant’s challenge for cause to Ms. Cota constituted reversible error. The defendant’s claim of error as to the admission of expert testimony is unlikely to recur in view of the briefing, and the probation issue is moot.

The circumstances of this case impel reiteration of the court’s comment in Carter, supra at 338:

One final comment seems appropriate. In our opinion, retention of a juror as questionable as Juror Whaley and the resulting necessity for a new trial is an illogical expenditure of the citizenry’s time and money in light of the large pool of potential jurors made available for service in criminal cases. Errors in the exclusion of potential jurors should always be made on the side of caution. See also State v. Gordon, 543 S.W.2d 553, No. 28173 (Mo.App. KCD 1976).

The court in the instant case had nine other jurors to whom no objection appears to have arisen. If the salutary practice of[*495] withholding rulings on all challenges until the conclusion of voir dire had been followed, this reversal would have been unnecessary. The doubt could have been resolved by sustaining the challenge.

Reversed and remanded for a new trial.

All concur.