Opinion
No. ED 86313
June 6, 2006
Appeal from the Circuit Court of St. Charles County, Hon. Lucy D. Rauch.
Kristina Starke, St. Louis, Missouri, for Appellant.
Shaun J. Mackelprang, Lisa M. Kennedy — co-counsel Jefferson City, Missouri, for Respondent.
Before Nannette A. Baker, Presiding Judge, Robert G. Dowd, Jr., Judge and Sherri B. Sullivan, Judge.
Introduction
Robert W. Davis (Defendant) appeals from a judgment of conviction of first-degree robbery, eight counts of armed criminal action, seven counts of felonious restraint, first-degree burglary, and resisting arrest. Among other issues, Defendant alleges that the trial court plainly erred in failing to administer the oath to the jury after it was impaneled. We transfer this case to the Missouri Supreme Court.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, the evidence adduced at trial reveals the following. Defendant and Paul L. Bainter (Bainter) entered Frontier IGA grocery store (IGA) displaying guns. Defendant and Bainter ordered IGA's co-owner Brian Moore (Moore) to give them money, which eventually totaled $4,400. Defendant and Bainter then put Moore and his son, three employees, and two customers in the meat cooler in the back of IGA, closed the door, and told the group to stay there. Defendant and Bainter left IGA. The day after the incident at IGA, the police arrested Defendant and Bainter after a car and foot chase.
Defendant was charged by amended information as a prior and persistent offender with one count of first-degree robbery, a class A felony in violation of Section 569.020, eight counts of armed criminal action, a felony in violation of Section 571.015, seven counts of felonious restraint, a class C felony in violation of Section 565.120, one count of first-degree burglary, a class B felony in violation of Section 569.160, and one count of resisting arrest, a class D felony in violation of Section 575.150. The case proceeded to an eight-day jury trial.
All statutory references are to RSMo 2000, unless otherwise indicated.
At the commencement of voir dire, the trial court asked the venire panel to rise, raise their right hands, and be sworn to answer questions. The court then administered the following oath to the venire panel:
Do each of you solemnly swear or affirm that you will give true answers to such questions as may be asked of you by court and counsel, touching on your qualifications to serve as jurors in this cause now coming for trial so help you?
The venire panel members replied "I do."
After impaneling the jury, the trial court took a lunch recess, after which the court addressed some matters with the attorneys on the record and then stated:
And we're ready to proceed to bring the jury up to place them under oath and read the preliminary instructions and opening statements.
At this point, the jury was brought back into the courtroom. The trial court read some instructions to the jury, beginning with MAI-CR3d 300.06, entitled "After the Jury is Sworn," and counsel then proceeded with opening statements. The record does not show that the jury was sworn, and neither Defendant nor the State objected to the trial court's failure to swear the jury.
Subsequently, the jury found Defendant guilty as charged. Defendant filed a motion for new trial, in which he raised the issue for the first time that the trial court erred in failing "to swear the jury selected to sit in trial on this case." The trial court denied Defendant's motion for new trial. In its order denying Defendant's motion for new trial, the trial court stated:
With respect to the Court's apparent failure to administer the usual oath to the jury after empanelling (sic) the jury, despite announcing its intention to do so on the record, as brought to the attention of counsel after the Court reviewed the Court's trial notes and the court reporter reviewed her official notes, the Court finds that the members of the jury were sworn as members of the venire panel and questioned under oath as to their ability to follow the instructions of the Court and their qualifications to serve as jurors in [this case], they were found qualified as jurors in this cause, were empanelled (sic) and instructed by the Court without objection; were polled as to their verdicts and adopted their verdicts; the verdicts were accepted and ordered filed and the jury discharged, all without objection. The Court therefore finds that the jury was sworn and any irregularity in the oath has been waived by [Defendant] for failure to timely make an objection. . . .
The trial court entered a judgment in accordance with the jury verdict and sentenced Defendant as a prior and persistent offender to life imprisonment on each of the first-degree robbery and first-degree burglary convictions, fifty years' imprisonment on each of the armed criminal action convictions, fifteen years' imprisonment on each of the felonious restraint convictions, and seven years' imprisonment on the resisting arrest conviction, with all of the sentences to be served consecutively. Defendant appeals from the judgment of conviction.
Discussion
Defendant raises five points on appeal. We address his third point on appeal first, as it is dispositive of this appeal. In his third point, Defendant argues that the trial court plainly erred in failing to administer the oath to the jury after it was impaneled.
As Defendant concedes, because he did not object at trial, this claim was not properly preserved for appellate review. A claim not properly preserved for appellate review may be considered for plain error at our discretion. Rule 30.20. Under this standard, reversal requires a plain error affecting a substantial right that results in manifest injustice or miscarriage of justice. Id.
All rule references are to Mo. R. Crim. P. 2005, unless otherwise indicated.
Section 546.070 sets out the order of a criminal trial and begins by stating: " The jury being impaneled and sworn, the trial may proceed in the following order. . . ." (Emphasis added.). Rule 27.02 sets out the order of trial by jury in felony cases and provides in relevant part:
(d) A qualified jury shall be selected as provided by law and shall be sworn well and truly to try the case.
(Emphasis added.). The jury does not exist until the venire persons selected therefore are sworn to service in that capacity. State v. Shaw, 636 S.W.2d 667, 671 (Mo. banc 1982).
The record proper in a criminal case must show that the jury was sworn to try the case. State v. Mitchell, 97 S.W. 561, 562 (Mo. 1906); see also, e.g., State v. McKinney, 120 S.W. 608 (Mo. 1909); State v. Delaney, 157 S.W. 305, 306 (Mo. 1913); State v. Berry, 195 S.W. 998 (Mo. 1917). The trial court is not presumed to have performed every act necessary to be performed in the regular progress of a case; for example, the record proper must affirmatively show that the jury was sworn. State v. Taylor, 256 S.W. 1059, 1061 (Mo. 1923); State v. Barr, 34 S.W.2d 477, 479 (Mo. 1930).
Although it is imperative that the jury be sworn to try the case and that the record show it, a party may waive irregularities in the swearing of the jury, where there has been substantial compliance with the statute. State v. Frazier, 98 S.W.2d 707, 715 (Mo. 1936). In Frazier, although the jury had been impaneled at the beginning of the trial, the jury was not sworn to try the case until after the testimony of five witnesses had been heard. Id. The Court reasoned that "[w]hile, in the course of ordinary procedure, the jury should be sworn to try a cause before any evidence is received, . . . if the record shows they were sworn during the progress of trial and before they had begun to deliberate upon their verdict, the error is not fatal; and is waived if the defendant fails to object and except at the time." Id. at 716. Here, rather than an irregularity in the swearing of the jury, the record does not show that the jury was ever sworn so there was no compliance, let alone substantial compliance, with the statute.
The State argues that this case is a "defective-oath situation" rather than a "no-oath-at-all situation" because the members of the jury were sworn as members of the venire panel. We are not persuaded by this argument. The venire panel oath and the jury oath are two different oaths. The venire panel oath substantively is as follows:
You and each of you do solemnly swear that you will true answers make to such questions as may be put to you touching upon your qualifications as jurors to try the cause now pending before this court so help you God.Bench Book for Missouri Trial Judges, Vol. V, Ch. 3, Section 3.9(3) (1998). The jury oath substantively is as follows:
You and each of you do solemnly swear that you will well and truly try the issues in this cause, in which the State of Missouri is plaintiff and _______ is the defendant, and a true verdict render according to the law and the evidence so help you God.Bench Book for Missouri Trial Judges, Vol. V, Ch. 3, Section 3.9(5) (1998). Thus, a purpose of the jury oath is to awaken the jury's conscience to the importance of the task upon which it is embarking.
Even beyond their words, the venire panel oath and the jury oath hold different significance, as illustrated in State v. Duff, 161 S.W. 683 (Mo. 1913). In Duff, a record entry made by the clerk stated the following: ". . . the jury being by the clerk sworn, and after the selection the following good and lawful men of the body of the county are chosen to try this cause. . . ." Id. The Court concluded that the entry does not show that the jury was sworn to try the case, and therefore it reversed and remanded for a new trial. Id. at 685. In doing so, the Court reasoned:
It is true that the word 'sworn' is used in this order as copied in the record by the clerk; but all lawyers know the facts to which we above advert as to the manner of impaneling a jury in a felony case, and that in selecting and impaneling such jury, and prior to an examination of them upon their voir dire, they are sworn to answer questions. The record entry before us avers that they were sworn; but this swearing, by the language used in the record, occurred prior to the selecting of the jury. If we say that the word 'selection' as used by the clerk is equivalent to impaneling and examining upon their voir dire, then they were not sworn at all to try the cause. If we say that the clerk means that they were sworn after selection, then they were not impaneled, examined upon their voir dire, or an opportunity given for challenging them either for cause or peremptorily; in other words, they were not impaneled, nor any words from which we might presume a proper selection of them shown by this record. We simply say that this record does not show even haltingly that the trial jury was sworn to try the case. . . .
(Emphasis added.).
The jury oath holds further significance because in a jury trial, jeopardy attaches when the jury is impaneled and sworn. See State v. Jarvis, 809 S.W.2d 460, 461 (Mo.App.E.D. 1991) (Emphasis added.). Thus, swearing the jury is not a mere formality, but it serves a fundamental purpose in the proper administration of justice in that it establishes the time at which double jeopardy protection becomes effective. See State v. Fitzpatrick, 676 S.W.2d 831, 834 (Mo. banc 1984).
We are bound by the decisions of the Supreme Court of Missouri. State v. Randolph, 123 S.W. 60, 61 (Mo.App. 1909). Because the record proper does not affirmatively show that the jury was sworn to try this case during the progress of trial and before they had begun to deliberate upon their verdict, the trial court plainly erred. Accordingly, Defendant's point three on appeal is granted. Generally, we would be compelled to reverse the judgment of conviction and remand the case for a new trial. However, because of the general interest and importance of the issue involved in this case and for the purpose of reexamining existing law, we transfer this case to the Missouri Supreme Court pursuant to Missouri Rule of Civil Procedure 83.02.
We note that in Mitchell, the prosecuting attorney discovered that the jury had not been sworn after the conclusion of the trial and brought it to the defendant's attention at that point. 97 S.W. at 562. Presumably, then, the defendant did not object during trial to the failure to swear the jury and thus, as here, the issue was not preserved for appeal, and yet, as discussed earlier, the Court reversed and remanded for a new trial because the record proper did not show that the jury was sworn to try the case. See Id.
In light of our resolution of point three, we need not address Defendant's remaining points on appeal.
We note that Bainter also appealed in State v. Paul L. Bainter, No. ED86381, and we reached the same result in that case.
Conclusion
The case is transferred to the Missouri Supreme Court.
Nannette A. Baker, P.J., and Robert G. Dowd, Jr., concur.