State v. Edmond

675 S.W.3d 235

STATE of Missouri, Respondent,

v.Nore K. EDMOND, Appellant.

No. ED 111055

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: September 19, 2023

FOR APPELLANT: Julian Wilks, 1010 Market Street, Suite 1100 Saint Louis, Missouri 63101.

FOR RESPONDENT: Karen L. Kramer, P.O. Box 899, Jefferson City, Missouri 65102.

Cristian M. Stevens, J.

Introduction

A trial jury convicted Defendant Nore K. Edmond of one count of domestic assault in the second degree and one count of unlawful use of a weapon. On appeal, Defendant challenges the trial court's denial of his motions to strike Venirepersons 25 and 31 for cause. Defendant also challenges the trial court's overruling his hearsay objection to witness R.P.’s testimony. We affirm the judgment of the trial court.

Factual and Procedural Background

On January 17, 2020, Defendant picked up his girlfriend, Victim, at her home, and they visited a Chick-fil-A restaurant.¹ There, Defendant became irritated and showed Victim a YouTube video about a girl kidnapped by her boyfriend. Defendant and Victim argued over their food, and Defendant got mad and raised his voice.

Victim asked Defendant to take her home, but Defendant refused and began screaming at her. While driving, Defendant punched Victim in the face multiple times and displayed a handgun. Defendant loaded the gun and told Victim to "shut up and be quiet."

Defendant stopped the car at the riverfront near downtown St. Louis and ordered Victim to get out so he could shoot her. Victim refused to get out of the car because she was scared. Defendant continued to yell at Victim and hit her in the face. He brought up Victim's deceased mother and asked if Victim wanted to "lay dead next to her."

Defendant and Victim then left the riverfront, and Defendant choked Victim and hit her in the face again. Defendant displayed a knife and stated he "wanted to cut [Victim's] face up in like a checkerboard." Defendant then hit Victim with the gun numerous times. Victim was frightened and "in a state of shock."

Eventually, Defendant drove Victim to a gas station, where he spit in Victim's face. Finally, Defendant took Victim home.

After Defendant left, Victim called her friend, R.P., via video call. Victim told R.P. what happened. R.P. came to Victim's house and took pictures of Victim's injuries. Victim's face was swollen and "lopsided," her eyes were swollen, watery, and puffy, her lips were busted, and her neck was scarred. Victim was taken to the hospital for treatment.

A grand jury indicted Defendant for domestic assault in the second degree, kidnaping in the first degree, armed criminal action, and unlawful use of a weapon. The case proceeded to trial.

Voir Dire

During the State's voir dire examination, the prosecutor asked the venire panel if anyone had been hit or struck by someone they were in a relationship with at some time in their life. Venireperson 31 answered that his ex-wife had slapped him in the face during an argument. The prosecutor asked whether Venireperson 31 could set aside that incident and decide the case fairly and impartially. Venireperson 31 responded, "I'd like to think I could. I can't honestly tell you, in fact, I could." After a brief exchange, the prosecutor asked again whether Venireperson 31 could be fair and impartial. Venireperson 31 stated, "Again, I want to be truthful. I'd like to do it, but I cannot honestly say."

The prosecutor also asked the venire panel whether anyone knew a family member or close friend who was a victim of domestic violence. Venireperson 31 again answered that his current wife had been abused in a previous relationship. The prosecutor asked Venireperson 31 if he could be fair and impartial. Venireperson 31 responded, "It would be hard. It would be hard for me to do that. Again, I told you about my own personal thing. This one is even more so."

Finally, the prosecutor asked if anyone had been in law enforcement or knew someone in law enforcement. Venireperson 31 answered that his son-in-law and neighbor were members of the St. Louis Police Department. The prosecutor asked if that would affect Venireperson 31's ability to be fair and impartial. Venireperson 31 responded, "Probably not. I'm very much a supporter of policemen."

Defense counsel moved to strike Venireperson 31 for cause. Counsel argued Venireperson 31 could not be fair and impartial based on his answers to the law enforcement questions. The trial court considered counsel's argument, as well as Venireperson 31's answers to the domestic violence questions, and denied the motion. The court found that those circumstances did not have any relation to the case and were not connected to Venireperson 31's ability to be fair and impartial, and Venireperson 31 did not exhibit an inability to follow the court's instructions. Defense counsel exercised a peremptory strike of Venireperson 31, and Venireperson 31 did not serve on the trial jury.

During defense counsel's voir dire examination, he asked whether anyone on the venire panel would assume that "something must have happened; that there's some reason that we're at trial; must have done something or we wouldn't be here." Some members of the venire panel responded affirmatively. One panel member stated she "would need to hear both sides to see. If he's guilty, I need evidence. If he's not, also I need evidence." Defense counsel then asked Venireperson 25 the same question, and she responded, "Yes. Something must have happened." Defense counsel asked whether Venireperson 25 would need evidence to prove Defendant's innocence. She answered, "I think it's kind of like they said. Hear both sides."

At the conclusion of voir dire , the trial court reminded the venire panel of the court's initial instructions:

I told you that the defendant is presumed innocent ... unless and until during those deliberations you believe the state has proved their case beyond a reasonable doubt and finds him guilty. And I further instructed you that the state bears the burden; that the defendant has no burden. So as to those people that responded to [defense counsel], is everyone able to follow that instruction; that the burden of proof stays with the state? Never moves to the defendant, which means [defense counsel] could be asleep during the rest of the trial. And if the state fails to prove their case beyond a reasonable doubt to you, you must, you must find the defendant not guilty.

The court repeatedly asked panel members to raise their hands if they could not follow the instructions regarding the presumption of innocence and that Defendant did not have any burden. None of the panel members raised a hand.

Defense counsel moved to strike Venireperson 25. The trial court denied the motion because Venireperson 25 "was rehabilitated through the Court's questioning." Defense counsel exercised a peremptory strike of Venireperson 25, and Venireperson 25 did not serve on the trial jury.

R.P.’s Trial Testimony

At trial, the State called R.P., Victim's friend, as a witness. R.P. testified that, when she answered Victim's video call, Victim was crying and her face was bruised and bloodied. Victim was stuttering, having trouble speaking, and seemed "horrified and afraid." They engaged in several calls and, having observed Victim's condition, R.P. testified, "So after that I was like [Victim], I have to take you to the hospital. And she was like no. She can't because he said that he was going to shoot up her house if she told." Defense counsel objected to "hearsay within hearsay." The trial court overruled the objection. R.P. then testified that Victim's statement scared her, so she called another friend so they could both go to Victim's house together. R.P. and her friend went to Victim's house together and took Victim to the hospital.

The jury found Defendant guilty of domestic assault in the second degree and unlawful use of a weapon, and not guilty of kidnaping and armed criminal action. In his motion for new trial, Defendant argued, among other things, the trial court erred in failing to strike Venirepersons 25 and 31 for cause. Specifically, Defendant sought to strike Venireperson 31 because he had been a victim of domestic violence and was equivocal about whether he could be fair and impartial. The trial court entered judgment on the counts of conviction, and Defendant now appeals.

Discussion

Defendant raises three points on appeal. In his first point, Defendant argues the trial court erred in failing to strike Venireperson 25 for cause because she stated she would need Defendant to present some evidence to prove that he was not guilty. In his second point, Defendant argues the trial court erred in failing to strike Venireperson 31 for cause because he could not say whether he could be fair and impartial in a case that involved domestic violence. In his third point, Defendant argues the trial court erred in overruling Defendant's hearsay objection to R.P.’s testimony.

Point I: Venireperson 25

In his first point, Defendant argues the trial court erred in failing to strike Venireperson 25 for cause because she stated she would need Defendant to present some evidence to prove he was not guilty. A trial court's ruling on a challenge for cause is reviewed for abuse of discretion. State v. Johnson , 284 S.W.3d 561, 580 (Mo. banc 2009).

"The defense's challenge to a prospective juror's qualifications during voir dire may constitute grounds for the granting of a new trial or the reversal of a conviction only when the prospective juror actually serves on the jury and participates in the verdict rendered against the defendant." State v. Jamison , 365 S.W.3d 623, 627 (Mo. App. E.D. 2012) (quoting State v. Garvey, 328 S.W.3d 408, 414 (Mo. App. E.D. 2010) ). "Missouri law is clear that a conviction cannot be challenged based on the trial court's failure to strike for cause a prospective juror if that prospective juror was removed by a peremptory challenge." Jamison , 365 S.W.3d at 627 (quoting State v. Gill, 167...