State v. Conaway

557 S.W.3d 372

STATE of Missouri, Respondent,

v.Billy M. CONAWAY, Appellant.

WD 80332

Missouri Court of Appeals, Western District.

Filed: June 19, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied July 31, 2018

Application for Transfer Denied October 30, 2018

Keith P. O'Connor, Kansas City for appellant.

Garrick F.D. Aplin, Jefferson City for respondent.

Before Division Two: James E. Welsh, P.J.,¹ and Alok Ahuja and Anthony Rex Gabbert, JJ.

Alok Ahuja, Judge

Following a jury trial in the Circuit Court of Jackson County, Appellant Billy Conaway was convicted of kidnapping, endangering the welfare of a child, and resisting arrest. Conaway appeals. He argues that he is entitled to a new trial because the State improperly asked prospective jurors during voir dire to make a commitment to find Conaway guilty if certain conditions were met. He also argues that his conviction for kidnapping must be reversed, because there was insufficient evidence to prove that he confined his victim "for a substantial period," as required by § 565.110.1.² We affirm.

Factual Background³

Conaway has a biological son (the "Victim"), who was twelve years old in May 2015. At the time, Conaway no longer had legal custody of the Victim, and the Victim had not seen Conaway "in a few years." The Victim was in the care of Conaway’s former girlfriend, Tammy Clavelle.

On May 16, 2015, at approximately 8:00 a.m., Conaway awoke the Victim at Clavelle’s home, and told him to get up because they were going to church. Clavelle objected to Conaway taking the Victim and, after they left the house, she called 9-1-1 and followed Conaway and the Victim in her truck.

Officers Terrence Brown and Jeremy Buske were dispatched to respond to the scene. When they arrived, they encountered Clavelle. She pointed to Conaway and the Victim, who were walking in a nearby parking lot. She explained to the officers that she was the Victim’s custodian, and that he had been taken by his father, who was not supposed to have the child.

The officers called out to Conaway to stop. Instead of stopping, Conaway "picked up the pace, like a fast walk, actually leaving [the Victim] walking away." As the officers continued to demand that Conaway stop, he continued walking away, and called the Victim "to come to him." The Victim appeared confused, because the officers were calling him to come to them, while Conaway was calling him in the opposite direction. Ultimately the Victim went to Conaway. Conaway grabbed the Victim’s arm and picked up his pace moving away from the officers, telling them that they would not get the Victim, and that if they wanted to take him, they would have to take the Victim.

Both officers testified that as they approached, Conaway grabbed the Victim and "cradle[d] him underneath his arms[,] [a]nd at the same time start[ed] to reach in his pocket as if he had a weapon." At this point, the officers drew their guns. Conaway told the officers to go ahead and shoot him, while holding the Victim "up high, kind of using him to shield himself." After Conaway "fumbl[ed] around" in his pocket for a while, the officers concluded that he did not have a gun. The officers holstered their firearms, and Officer Brown instead drew his Taser.

When Officer Brown pointed the Taser at Conaway, "[Conaway] took [the Victim] and started trying to shield himself with [the Victim]." Officer Buske testified, "[Conaway] had [the Victim] immediately in front of him with his arm wrapped around [the Victim] and [Conaway] was holding [the Victim] directly in front of him." Conaway continued to ignore the officers' commands to let the Victim go. Officer Brown "tried to kind of encircle [Conaway] and tr[ied] to come at a different angle[,] [a]nd he would just turn with the child." Officer Brown testified that Conaway adjusted his hold on the Victim "trying to eliminate us from having anywhere to deploy the Taser on him."

Ultimately, Officer Brown walked up to Conaway and shocked him in the face or neck, which was "the safest location possible to deploy the Taser where the child would not be in any danger." Upon being tased, Conaway immediately dropped the Victim, and the officers took Conaway into custody. The officers later discovered that at least one of the prongs of the Taser had shocked the Victim, despite Officer Brown’s efforts to use the device solely on Conaway.

A recording from the police vehicle’s dashboard camera was admitted into evidence and played for the jury. The camera did not capture video of the officers' interaction with Conaway, because of the direction the patrol car was pointing. On the audio, Conaway can be heard repeatedly stating, "You take me, you take him." The dashboard camera’s recording indicates that the entire incident, from the officers' arrival at the scene until their restraint of Conaway, lasted approximately 90 seconds.

Conaway was charged with the class A felony of kidnapping, in violation of § 565.110 (Count I); the class C felony of endangering the welfare of a child in the first degree, in violation of § 568.045 (Count III), and the class D felony of resisting arrest, in violation of § 575.150 (Count IV).⁴ Each of these counts relied on the allegation that Conaway had used the Victim as a shield as the officers were attempting to apprehend him. Thus, in Count I, Conaway was charged with kidnapping by unlawfully confining the Victim "for the purpose of using [him] as a shield." In Count III, Conaway was charged with endangering the Victim’s welfare "by failing to cooperate with police commands while holding [the Victim] in front of defendant’s body." In Count IV, the State alleged that, in resisting a lawful detention, Conaway "created a substantial risk of serious physical injury or death to a person in that the defendant used [the Victim] as a shield when the law enforcement officer drew his firearm."

A jury trial was held in August 2016. The prosecutor explained to the venire panel that

[e]ach element [of the charged offenses] must be proved beyond a reasonable doubt. There’s no higher or lower burden with regards to each separate element. They all must be found, they all must be found beyond a reasonable doubt in order to convict for each count. Is there anyone who would hold the State to a higher burden and make us prove anything that’s maybe not an element? And it’s kind of confusing when I say that, but like motive. Motive is why someone does something. Motive is not an element in any of the three counts that we have alleged against the defendant. Is anyone going to have trouble finding—convicting, if you have an unanswered question like why did someone do that?

Defense counsel objected to the question concerning motive. The trial court overruled the objection, but asked the prosecutor to clarify her question. The prosecutor rephrased the question by asking, "[i]s [motive] something that you would require the State to prove before you would be able to convict?" In response, three prospective jurors stated that they would hesitate to convict someone of kidnapping his or her own child; none of the venirepersons expressed concerns related to motive.

After a three-day trial, the jury found Conaway guilty of all three offenses submitted to them: kidnapping, endangering the welfare of a child in the first degree, and resisting arrest. Consistent with the charging instrument, the verdict directors for each offense relied on Conaway’s act of using the Victim as a shield when officers attempted to apprehend him. Having found Conaway to be a persistent felony offender, the court imposed sentences of fifteen years on the kidnapping count, seven years for endangering the welfare of a child, and four years for resisting detention, with the sentences to run concurrently.

Conaway appeals.

Discussion

Conaway raises two arguments on appeal. He first argues that he is entitled to a new trial because the prosecutor’s voir dire questioning concerning motive improperly solicited a commitment from the jury. In his second Point, Conaway argues that he is entitled to a judgment of acquittal on the kidnapping count, because the State failed to prove that he confined the Victim "for a substantial period." We reject both arguments.

I.

Conaway first argues that the trial court abused its discretion in allowing the State, over his objection, to ask prospective jurors whether they "would be able to convict" Conaway without proof of motive.

"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). "There is no rigid formula for an adequate voir dire. Consequently, a liberal latitude is allowed in the examination of jurors, as long as the scope of voir dire remains commensurate with its purpose to discover bias or prejudice in order to select a fair and impartial jury." State v. Ousley , 419 S.W.3d 65, 73 (Mo. banc 2013) (citations and internal quotation marks omitted). "[T]he trial judge is vested with the discretion to judge the appropriateness of specific questions, and is generally vested with wide discretion in the conduct of voir dire. " State v. Baumruk , 280 S.W.3d 600, 614 (Mo. banc 2009) (citation and internal quotation marks omitted).

While counsel is entitled to conduct relatively wide-ranging voir dire examination to explore the biases of potential jurors, "[c]ounsel may not ... try the case on voir dire ...." State v. Holmquest , 243 S.W.3d 444, 451 (Mo. App. W.D. 2007).

Questions may not be phrased in such a way as to attempt to elicit a commitment from jurors how they would react to hypothetical facts or seek to predispose jurors to react a certain way to anticipated evidence. When the inquiry includes questions phrased or framed in such a manner that they require the one answering to speculate on his own reaction to such an extent that he tends to feel obligated to react in that manner, prejudice can be created. The limitation is not as to the information sought

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