per se rule in Missouri

2010A finding of intentional concealment of material information has “ ‘become tantamount to a per se rule mandating a new trial.’ ” Id. (quoting Wilford, 736 S.W.2d at 37 ).

2010A finding of intentional concealment of material information has “ ‘become tantamount to a per se rule mandating a new trial.’ ” Id. (quoting Wilford, 736 S.W.2d at 37 ). “[Questions and answers pertaining to a prospective juror’s prior litigation experience are material.” Id.

2004In Missouri, “we have not adopted a per se rule of mandatory reversal in all cases in which objectionable comments are made by a prosecutor.” State v. Roberts, 838 S.W.2d 126, 131 (Mo.App.1992).

1997While this court agrees the State’s comment may have overstepped the bounds of permissible argument, “we have not adopted a per se rule of mandatory reversal in all cases in which objectional comments are made by a prosecutor.” Roberts, 838 S.W.2d at 131 .

1998We infer bias and prejudice from a venire person’s intentionally withholding material information which has been requested during voir dire. “[A] finding of intentional concealment has ‘become tantamount to a per se rule mandating a new trial.’ ” Williams [By Wilford v. Barnes Hospital ], 736 S.W.2d [33,] 37 [ (Mo. banc 1987) (quoting Frenette v. Clarkchester Corporation, 692 S.W.2d 834, 836 (Mo.App.1985), and Anderson v. Burlington Northern Railroad Company, 651 S.W.2d 176, 178 (Mo.App.1983)).

1996We infer bias and prejudice from a venire person’s intentionally withholding material information which has been requested during voir dire. “[A] finding of intentional concealment has 'become tantamount to a per se rule mandating a new trial.’” Williams 736 S.W.2d at 37 (quoting Frenette v. Clarkchester Corporation, 692 S.W.2d 834, 836 (Mo.App.1985), and Anderson v. Burlington Northern Railroad Company, 651 S.W.2d 176, 178 (Mo.App.1983)).

2010A finding of intentional concealment of material information has “ ‘become tantamount to a per se rule mandating a new trial.’ ” Id. (quoting Wilford, 736 S.W.2d at 37 ).

2010A finding of intentional concealment of material information has “ ‘become tantamount to a per se rule mandating a new trial.’ ” Id. (quoting Wilford, 736 S.W.2d at 37 ). “[Questions and answers pertaining to a prospective juror’s prior litigation experience are material.” Id.

2014See Fields v. State, 572 S.W.2d 477, 481-83 (Mo. banc 1978) (determining that case-by-case appointment of counsel was grossly unsatisfactory and adopting the per se rule that appointment of counsel was required for all indigent postconviction movants).

1987In Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978), the Supreme Court adopted a per se rule for the appointment of counsel for indigent pro se Rule 27.26 movants.

1998We infer bias and prejudice from a venire person’s intentionally withholding material information which has been requested during voir dire. “[A] finding of intentional concealment has ‘become tantamount to a per se rule mandating a new trial.’ ” Williams [By Wilford v. Barnes Hospital ], 736 S.W.2d [33,] 37 [ (Mo. banc 1987) (quoting Frenette v. Clarkchester Corporation, 692 S.W.2d 834, 836 (Mo.App.1985), and Anderson v. Burlington Northern Railroad Company, 651 S.W.2d 176, 178 (Mo.App.1983)).

1996We infer bias and prejudice from a venire person’s intentionally withholding material information which has been requested during voir dire. “[A] finding of intentional concealment has 'become tantamount to a per se rule mandating a new trial.’” Williams 736 S.W.2d at 37 (quoting Frenette v. Clarkchester Corporation, 692 S.W.2d 834, 836 (Mo.App.1985), and Anderson v. Burlington Northern Railroad Company, 651 S.W.2d 176, 178 (Mo.App.1983)).

2024“Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral. . . . [D]isparate impact alone will not convert a facially race-neutral explanation into a per se violation of equal protection.” Id. at 934 (citing Hernandez v. New York, 500 U.S. 352 (1991)).

2017That an explanation may have a racially disparate impact is relevant to the third step of the Batson analysis, but is “not ... conclusive in the preliminary race-neutrality .step of the Batson inquiry.” Hernandez , 500 U.S at 362, 111 S.Ct. 1859 ; see also Washington, 288 S.W.3d at 316 (“Even if a prosecutor’s criterion might result in the disproportionate removal of a certain racial group, the disproportionate impact does not turn a prosecutor’s actions into a per se violation of the equal protection clause.”).

2024“Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral. . . . [D]isparate impact alone will not convert a facially race-neutral explanation into a per se violation of equal protection.” Id. at 934 (citing Hernandez v. New York, 500 U.S. 352 (1991)).

2015“Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral....[D]isparate impact alone will not convert a facially race-neutral explanation into a per se violation of equal protection.” Id. (citing Hernandez v. New York, 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991)).

2017Where proven, a juror’s intentional nondisclosure ordinarily warrants the presumption of juror bias and prejudice to claimant, such that a finding of intentional nondisclosure “is- tantamount to a per se rule mandating a new trial.” McFadden, 391 S.W.3d at 418 .

2013State v. McFadden; 391 S.W.3d 408, 418 (Mo.banc 2013). “[A] finding of intentional nondisclosure of a material issue is tantamount to a per se rule mandating a new trial.” Id.

2004Further, “this state has not adopted a per se rule of mandatory reversal in all cases in which objectionable comments are made by a prosecutor.” State v. Hibbert, 14 S.W.3d 249, 254 (Mo.App.2000).

2000“Additionally, this state has not adopted a per se rule of mandatory reversal in all cases in which objectionable comments are made by a prosecutor.” Hibbert, 14 S.W.3d at 254 .

2017We recognize that ”[s]ome such effect would exist in an escape case [and] Missouri does not apply a per se rule in escape cases." State v. Surritte, 35 S.W.3d 873, 875 (Mo. App. W.D. 2001) (citing State v. Troupe, 891 S.W.2d 808, 813 (Mo. banc 1995) (Limbaugh, J., concurring)). .

2001Troupe, 891 S.W.2d at 813 (Limbaugh concurring in result).

1998Hernandez v. New York, 500 U.S. 352, 362 , 111 S.Ct. 1859, 1867-68 , 114 L.Ed.2d 395 (1991); State v. Parker, 836 S.W.2d 930, 934 (Mo. banc), cert. denied, 506 U.S. 1014 , 113 S.Ct. 636 , 121 L.Ed.2d 566 (1992); State v. Davis, 894 S.W.2d 703, 706 (Mo.App.1995).

1997Hernandez v. New York, 500 U.S. 352, 362 , 111 S.Ct. 1859, 1867 , 114 L.Ed.2d 395, 407 (1991); State v. Parker, 836 S.W.2d 930, 934 (Mo. banc), cert. denied, 506 U.S. 1014 , 113 S.Ct. 636 , 121 L.Ed.2d 566 (1992); State v. Davis, 894 S.W.2d 703, 706 (Mo.App.1995).

1993State v. Murphy, 693 S.W.2d 255, 261 (Mo.App.1985).

1993Holloway v. Arkansas, 435 U.S. 475, 482 , 98 S.Ct. 1173, 1178 , 55 L.Ed.2d 426 (1978); State v. Murphy, 693 S.W.2d 255, 261 (Mo.App.1985).

1983State v. Burns, 581 S.W.2d 590, 594 (Mo.App.1979); State v. Conley, 541 S.W.2d 4, 6 [2] (Mo.App.1976).

1979Furthermore, “Initial identification by photograph followed by lineup identification is not a per se violation of a defendant’s constitutional rights, . and certainly will not require suppression of eyewitness identification where grounds independent of the photograph are shown.” State v. Conley, 541 S.W.2d 4, 6 (Mo.App. 1976).

1979We were confronted with the same contention that Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), creates a per se rule in State v. Blevins, 581 S.W.2d 449 , Mo.App., Eastern District, No. 39631, April 24, 1979.

1979We were confronted with the same contention that Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), creates a per se rule in State v. Blevins, 581 S.W.2d 449 , Mo.App., Eastern District, No. 39631, April 24, 1979.

2023“The entry, without more, of a plea of not guilty, as distinguished from a plea of guilty, without the presence of counsel could not have resulted in any disadvantage to defendant or advantage to the State.” Montgomery, 461 S.W.2d at 846 . 13 Woolery lost no rights or defenses at his arraignment, and the State gained no advantage over him.

1988Montgomery v. State, 461 S.W.2d 844, 846 (Mo.1971).

1998In affirming the trial court’s admittance of the police officer’s testimony, the Supreme Court rejected the Degraffenreid court’s decision to “fashion[ ] a per se rule against third person, unimpeached testimony which described the same as inadmissible hearsay.” Id. at 884.

1996The Supreme Court rejected the Degraffenreid court’s decision to “fashionf ] a per se rule against third person, unim-peached testimony which described the same as inadmissible hearsay.” Harris, 711 S.W.2d at 884 .

1996Appellate courts recognize that “[r]e-marks are made in the heat of closing argument that, on reflection, would best be left unsaid.” State v. Hornbeck, 702 S.W.2d 90, 93 (Mo.App.1985). *482 In considering the instant case and the prosecutor’s remarks that the defense counsel acted like a “magician” in distracting the jury from the facts and that the defense counsel portrayed his clients as “victims”, we review these remarks against those found in Hornbeck and State v. Greene, 820 S.W.2d 345 (Mo.App.1991).

1993Defendant principally relies on the cases of State v. Hornbeck, 702 S.W.2d 90 (Mo.App.1985), and State v. Greene, 820 S.W.2d 345 (Mo.App.1991), to support his contention that the prosecutor’s improper argument requires a reversal in this case.

1990We also are inclined to point out that numerous cases have suggested that intentional nondisclosure by a jury is “tantamount to a per se rule mandating a new trial.” See Strickland by Carpenter v. Tegeler, 765 S.W.2d 726, 729 (Mo.App., W.D.1989); Williams by Wilford v. Barnes Hospital, 736 S.W.2d 33 (Mo. banc 1987); Frenette v. Clarkchester, Corp., 692 S.W.2d 834 (Mo.App., E.D.1985); and Anderson v. Burlington Northern Railroad Co., 651 S.W.2d 176 (Mo.App., E.D. 1983).

1990Under the circumstances such intentional concealment has “become tantamount to a per se rule mandating a new trial.” Id. at 729 .

1984In North Carolina v. Butler, 441 U.S. 369, 373 , 99 S.Ct. 1755, 1757 , 60 L.Ed.2d 286 (1979), it was held that there is no constitutional mandate for a per se rule stipulating that an express written or oral waiver is necessary to sustain the state’s burden of proof to show a suspect’s waiver of his rights.

1984In North Carolina v. Butler, 441 U.S. 369, 373 , 99 S.Ct. 1755, 1757 , 60 L.Ed.2d 286 (1979), it was held that there is no constitutional mandate for a per se rule stipulating that an express written or oral waiver is necessary to sustain the state’s burden of proof to show a suspect’s waiver of his rights.