Opinion
Docket No. WD55573
Opinion Filed: July 13, 1999
Appeal From the Circuit Court of Jackson County, Missouri, Honorable Ronald R. Holliger, Judge.
Philip M. Koppe, Assistant Attorney General, Kansas City, MO for Respondent.
John R. Cullom, Kansas City, MO for Appellant.
Before: Ellis, P.J., and Lowenstein and Howard, JJ.
Reuben Darnell Oates was convicted of one count of voluntary manslaughter, § 565.023.1(1), RSMo 1994, and one count of armed criminal action, § 571.015.1, RSMo 1994. He now appeals, claiming that the trial court erred by sustaining the State's objection to a portion of his closing argument, and by preventing him from asking the venirepersons, during voir dire, whether they could consider his self-defense claim if the evidence showed that the victim had been shot in the back of the head. He also claims that the trial court erred by allowing the State to cross-examine him about other acts of violence, and by asking the jury whether they could agree on the issue of punishment if given more time to deliberate, without first asking the jury if they had found Oates guilty or not guilty.
Reversed and remanded.
Oates and the victim, Tyrus Hopkins, were both employed at the Service Oil Company gas station at Troost and Armour Boulevard in Kansas City, Missouri. On the night of September 5, 1996, Oates came to work carrying a handgun, because the gas station had been robbed several times before and Oates was concerned for his safety. His co-worker, Hopkins, kept a handgun in the drawer of a desk inside the gas station.
At approximately 1:00 a.m., the two men were standing outside near the gasoline pumps when they got into an argument. A witness, Nathaniel Brown, was walking near the service station, and saw the altercation that ensued. As Brown approached the station, he saw Hopkins grab Oates and place him in what Brown called "a full nelson" hold. It appeared to Brown that Hopkins was trying to drag Oates into the service station. Then, Oates broke loose from Hopkins, pulled out a gun from inside his pants, and started shooting at Hopkins. One of the shots fired outside the station apparently hit Hopkins in the chin. Hopkins ran into the station with Oates in pursuit.
Brown saw a police car driving by and flagged it down. The driver, Officer Michael Briggs, pulled into the gas station just as Oates was coming out, still holding the gun. Brown heard Oates tell the officer, "He threatened me." Officer Briggs placed Oates under arrest and entered the gas station. Once inside, he saw Hopkins lying in a fetal position on the floor of the station's cigarette closet. An autopsy revealed that Hopkins had been shot twice, once in the chin and once in the back of the head.
Oates was brought to trial for the shooting, and during voir dire, his attorney asked, "Would anybody on the panel believe that the fact that the person is shot in the back of the head automatically would defeat a self-defense claim?" When the prosecutor objected to the question on the ground that it asked for a commitment from the venirepersons, Oates' attorney offered two alternative versions of the inquiry. First, he suggested that he be allowed to ask if anyone would "be unable to sit as a fair and impartial juror if they hear evidence that the deceased was shot in the back of the head." Next, he suggested that he ask, "If the evidence comes in that there's a shot in the back of the head, can you still follow the self-defense instruction." The trial court sustained the prosecutor's objection to all these questions, saying "I don't know how to separate out the aspect of asking a juror to commit to either a position in favor of the State or the refusal to commit to a position regarding the defendant's affirmative defense. I don't know how to avoid that with this type of question."
Oates testified in his own defense at trial, and offered his account of the shooting. He said that he and Hopkins got into an argument over who would make change for a customer who only had a $100.00 bill to pay for $10.00 worth of gas. As the two men argued, the customer drove off without paying. Then, the two men argued about the $10.00 shortage caused by the failure to collect money for the gas. According to Oates, Hopkins said, "If we come up short, I'm going to hurt you, I'm going to do something bad to you, I'm going to kill you."
Oates testified that, after the argument subsided, he sat down on one of the concrete gas islands. Then, according to Oates, Hopkins ran up to his blind side, knocked him down, and tackled him. Oates said he broke free and tried to run away, but Hopkins caught him and gripped his neck, cutting off Oates' breath. Oates testified that he fired a warning shot into the air, but that only made Hopkins yank his neck harder, and Oates thought he felt a gun against his head.
Oates said that he broke free a second time, and ran toward his apartment, but Hopkins caught him a second time and again dragged him toward the station. According to Oates, Hopkins repeatedly said "I'm going to kill you" during the scuffle. Oates testified that he broke free once again, and Hopkins tried to hit him with his fist. Oates ducked and Hopkins instead hit a wooden cigarette box on one of the concrete islands, which Oates said just made Hopkins more angry. Oates testified that he then warned Hopkins that he would shoot him, and when this had no effect, he backed up and began firing the weapon. Hopkins ran towards the station, where Oates knew that Hopkins kept a gun in the drawer of the desk. Oates testified that he followed Hopkins into the station, and as Hopkins was reaching toward the desk drawer, Oates fired the shot that killed him.
On direct examination, Oates was asked if he had ever seen Hopkins commit an act of violence prior to the night of the shooting. Oates answered in the affirmative, and described an incident where Hopkins jumped into a car and punched the driver, who was a man suspected of taking money from the service station. Oates stated that this episode made him afraid of Hopkins. The trial court then ruled that the prosecutor could cross-examine Oates on the question of whether he, too, had committed prior acts of violence. The prosecutor asked Oates about four previous incidents, but Oates denied any prior assaults.
During closing argument, Oates' counsel stated, "Ladies and gentlemen, you can pursue your assailant until you secure yourself from danger." The prosecutor objected to this remark on the ground that counsel was improperly instructing the jury on the law. The trial court sustained the objection, and ordered the jury to disregard the statement.
The jury found Oates guilty of voluntary manslaughter and armed criminal action, but was unable to agree on Oates' punishment for the crimes. Subsequently, the trial court sentenced Oates to a nine-year term of imprisonment for the manslaughter conviction, and a three-year term of imprisonment for the armed criminal action conviction, with the sentences to run concurrently.
In his first point on appeal, Oates claims that the trial court erred by not allowing his attorney to tell the jury, during closing argument, that "you can pursue your assailant until you secure yourself from danger." Oates contends that the trial court's action misled the jury on the law of self-defense and thwarted his ability to present his self-defense claim to the jury.
In general, it is not the prerogative of counsel to inform the jury as to the substantive law of the case. State v. Jordan , 646 S.W.2d 747, 751 (Mo.banc 1983). The logic behind this rule is that it is the court that will inform the jury on the law with its instructions, State v. Graham , 916 S.W.2d 434, 436 (Mo.App.E.D. 1996), and counsel cannot argue issues of law which are inconsistent with the instructions of the court. Jordan , 646 S.W.2d at 751 .
In the case at bar, the prosecutor objected that the remark by Oates' attorney was inconsistent with the instruction on self-defense, MAI-CR 3d 306.06, which states that if Oates "reasonably believed he was in imminent danger of death or serious physical injury from the acts of Tyrus Hopkins and he reasonably believed that the use of deadly force was necessary to defend himself, then he acted in lawful self-defense." Oates' attorney contended that his remark was supported by State v. Gadwood , 116 S.W.2d 42 (Mo. 1938).
Gadwood , unlike the case at bar, was a case involving a situation where the party claiming that he killed the victim in self-defense was the initial aggressor in the altercation. Gadwood held that when such a defendant attempts to justify a homicide on the ground that he had withdrawn from the altercation, there must be substantial evidence that he demonstrated his desire for peace by an abandonment of the struggle, and that this demonstration was perceived by his adversary. The Gadwood court then stated, "Until the latter acquires such knowledge he may pursue his assailant until he has secured himself from danger." 116 S.W.2d at 57.
The trial court has broad discretion in determining the scope of arguments, and an appellate court will not disturb the trial court's rulings on matters involving closing argument unless there is an abuse of that discretion. State v. Nicklasson , 967 S.W.2d 596, 615 (Mo.banc 1998). We cannot conclude that the trial court abused its discretion in the case at bar. Oates' attorney was quoting an out-of-context sentence fragment pertaining to an issue (defendant as initial aggressor) that was not present here. Point denied.
In his second point on appeal, Oates claims that the trial court erred by preventing him from asking the venirepersons, during voir dire, whether they could consider his self-defense claim if the evidence showed that the victim had been shot in the back of the head.
The purpose of voir dire is to discover bias or prejudice in order to select a fair and impartial jury. State v. Clark , 981 S.W.2d 143, 146 (Mo.banc 1998). Voir dire requires some inquiry into critical facts. Id . If jurors are not exposed to critical facts, which are facts with substantial potential for disqualifying bias, the parties lose the opportunity to directly explore potentially biased views, which all concerned have a duty to investigate thoroughly. Id .
At the same time, counsel may not try the case on voir dire. Id . at 146. Counsel may not seek to predispose jurors to react a certain way to anticipated evidence, or attempt to elicit a commitment from jurors how they would react to hypothetical facts. Id . at 146-147. Also, a presentation of the facts in explicit detail during voir dire is inappropriate. Id . at 146.
The trial court is in the best position to judge whether a disclosure of facts on voir dire sufficiently assures the defendant of an impartial jury without at the same time amounting to a prejudicial presentation of the evidence. Id . The trial court has discretion to judge the appropriateness of specific questions, and its rulings will be reviewed for abuse of that discretion. Id .
In Clark , the defendant was on trial for the shooting of a man and his three-year-old daughter. The State filed a motion in limine, asking the court to prohibit defense counsel from "seeking a commitment" from potential jurors "by asking or providing to the jurors isolated circumstances involving this case. Specifically, the age of [the child victim], who was three years old at the time." The trial court sustained the motion, specifically ruling that the defendant was "not entitled to voir dire on specifics of the case being tried." During voir dire, defense counsel again informed the court that he wanted to explore the issue of the age of the child victim, but was prohibited from doing so without a specific voir dire question being asked. The trial court stated: "My ruling remains unchanged. You will not be permitted to voir dire on the age of the victim."
The Supreme Court concluded that the trial court improperly limited the scope of voir dire, and reversed the conviction. 981 S.W.2d at 145-148. In so doing, the Supreme Court held that "facts with substantial potential for disqualifying bias" must be disclosed to the venire panel, and that the age of the victim was a fact with a substantial potential for disqualifying bias. Id . at 147. Applying this principle to the case at bar, the question is whether the circumstance of Oates shooting Hopkins in the back of the head is also a fact with a substantial potential for disqualifying bias.
Black's Law Dictionary 162 (6th ed. 1990) defines "bias" to include "a preconceived disposition; a predisposition to decide a case or an issue in a certain way, which does not leave the mind perfectly open to conviction." The concern in the case at bar is that a juror might be predisposed to decide that the act of shooting a victim in the back of the head is incompatible with a claim of self-defense. According to the rule articulated in Clark , if there is a "substantial potential" for a juror to have such a predisposition about a shooting of this nature, some inquiry into the issue is essential in order to adequately search for bias. The trial court must consider the propriety of a particular question within the context of the case. Id . at 146. Firing a bullet into the back of a victim's head is an act some would likely associate with "execution-style" murders which is contrary to the face-to-face nature of confrontations commonly associated with a claim of self-defense. We conclude that there is a substantial potential that a juror might be predisposed to decide that Oates' act of shooting Hopkins in the back of the head is incompatible with a claim of self-defense. Therefore, pursuant to Clark , we are constrained to find that the trial court abused its discretion in limiting voir dire in this case.
The State argues that the questions proposed by Oates' attorney were really an attempt to elicit an improper commitment from jurors on the issue of self-defense. The trial court found that all of the questions proposed by Oates' attorney were improper in this fashion, and a close reading of the wording of the questions does not support such a conclusion. As in Clark , the broad nature of the trial court's ruling improperly prevented the defendant from attempting to discover bias. 981 S.W.2d 143, 147.
We also are unpersuaded by the State's claim that Oates was not prejudiced by this ruling. As in Clark , where the prosecutor repeatedly emphasized that a child victim was involved, the prosecutor in the case at bar repeatedly emphasized that the victim was shot in the back of the head. Oates is entitled to relief on his claim that the trial court improperly limited the scope of voir dire, and the judgment must be reversed.
In his third point on appeal, Oates claims that the trial court erred by allowing the prosecutor to cross-examine Oates on the question of whether he had committed prior acts of violence. The State, on the other hand, contends that the cross-examination was proper pursuant to this court's decision in State v. Schlup , 785 S.W.2d 796 (Mo.App.W.D. 1990).
In Schlup , the defendant was charged with assaulting a fellow penitentiary inmate, and the defendant testified that the victim had made homosexual passes at him, had gotten in prior fights with the defendant, and had previously assaulted and threatened the defendant. The trial court allowed the prosecutor to cross-examine the defendant about his own prior convictions for sodomy and assault. This court refused to find the cross-examination improper, holding that because the defendant addressed the factual issue of the bad character of the victim to substantiate his claim of self-defense, he extended the scope of the prosecutor's cross-examination to include in a similar way his own character. 785 S.W.2d at 801-802. Schlup is controlling here. Point denied.
In his fourth point on appeal, Oates claims that the trial court erred during jury deliberations by asking the jury whether they could agree on the issue of punishment if given more time, without first asking the jury if they had found Oates guilty or not guilty. However, we need not address this point, as it is based upon a circumstance which is not likely to recur during Oates' new trial.
The judgment is reversed, and the cause is remanded for a new trial.
All concur.