State v. Pike

614 S.W.3d 651

STATE of Missouri, Respondent,

v.Christopher Eugene PIKE, Appellant.

WD 83180

Missouri Court of Appeals, Western District.

Filed: January 12, 2021

Jeannie M. Willibey, Kansas City for appellant.

Julia E. Rives, Jefferson City for respondent.

Before Division Three: Edward R. Ardini, Jr., P.J., and Alok Ahuja and Gary D. Witt, JJ.

Alok Ahuja, Judge

Following a jury trial, Christopher Pike was convicted in the Circuit Court of Platte County of domestic assault in the second degree. Pike appeals. He argues that the circuit court plainly erred in failing to strike two venire members for cause on the court's own motion, because the venire members did not unequivocally indicate that they could be fair and impartial. We reject Pike's jury-selection argument and affirm his conviction. We vacate the judgment and remand to the circuit court, however, so that the court can enter a judgment nunc pro tunc accurately reflecting the offense of which Pike was convicted.

Factual Background

Pike was dating his female Victim in April 2018. On April 11, 2018, the Victim went to Pike's home. After some drinking, a verbal argument ensued. The argument escalated and became physical when the Victim stated that she wanted to go to bed at approximately 10:00 p.m. Pike threatened the Victim's life. He punched her in the cheek, then choked her and hit her multiple times in the head as well as in the stomach. The Victim eventually made her way to the kitchen, where she grabbed a knife and told Pike, "if you want me dead that bad, you can just kill me." Pike grabbed the knife from the Victim, and the assault ended.

Later that night, Pike restrained the Victim on the bed after she had taken her clothes off. Pike punched the Victim multiple times in the vaginal area, and whipped her with a belt across the upper thighs. Pike inserted his fist and a baseball bat inside the Victim's vagina; at the Victim's request, Pike placed a condom on the baseball bat. The Victim testified that she believed it was in her best interest not to resist the sexual acts Pike was performing, but she did not consent. Pike let the Victim out of her restraints to perform oral sex on him, which she did. Pike then fell asleep, and the Victim fled the house.

The Victim suffered extensive injuries as a result of the incident, and was still in considerable pain at the time of trial in July 2019. The Victim suffered substantial bruising all over her body. She had lacerations on her lips, neck, arms, thighs, and labia, as well as on her liver, which caused internal bleeding. Her left eardrum was damaged, and her cervix was injured and bleeding. The forensic nurse who treated the Victim testified that she does not frequently see the type of injuries the Victim suffered, because "most women don't survive those types of injuries." A physician testified that he would typically associate the type of laceration which the Victim suffered on her liver with a significant abdominal trauma like that occurring in a high-speed motor vehicle accident.

Pike messaged the Victim following the abuse, begging her not to go to the police. Pike offered the Victim "a couple thousand dollars" if she would not report him.

Police obtained a search warrant for Pike's home. They observed multiple broken objects in the master bedroom. Police recovered a baseball bat with a condom over the barrel from the corner of the bedroom, and photographed black straps attached to three corners of the bed.

Pike was charged in an amended information with first-degree sodomy in violation of § 566.060¹ (Count I), and with first-degree domestic assault in violation of § 565.072 (Count II).

During jury selection at Pike's trial, multiple members of the jury venire indicated that they had been victims of sexual abuse, or had close friends or family members who had been victimized. Near the end of the State's voir dire examination, Venireperson 28 stated that his niece had been sexually assaulted and murdered a few years previously. Venireperson 28 stated that law enforcement had responded to his niece's case, that the case had been resolved, and that he was satisfied with how the case had been handled. When he was asked if there was "[a]nything about that case and your connection to it that would make you unable to be fair and impartial in this case," Venireperson 28 responded, "[p]ossibly." No further questions were asked of Venireperson 28, and he made no further statements during voir dire.

Defense counsel asked the venire members additional questions concerning their experience with sexual assault. During that questioning, defense counsel had the following exchange with Venireperson 40.

[Venireperson] 40: And I have a cousin that was sexually assaulted growing up. She did report it years later and he did serve time but he has since been released.

[Defense Counsel]: Would that affect your ability to serve on this jury, do you think?

[Venireperson] 40: Possibly.

[Defense Counsel]: Okay. Can we do a little beyond "possibly"?

[Venireperson] 40: I think I feel the same way [as another venire member] that I would like to think I could be impartial but if it did make me think of the stories that I heard or memories, then it could make me unfair.

[Defense Counsel]: And nobody wants any of you to have memories dredged that are unpleasant, so if you can't do it, you need to let us know.

[Venireperson] 40: I do think that it would be hard.

[Defense Counsel]: Okay. Thanks.

No further questions were asked of Venireperson 40.

As the parties and the court discussed striking venire members for cause, the State requested that Venireperson 28 be stricken. Although using the incorrect gender pronoun, the prosecutor accurately described Venireperson 28 as the individual who "claimed [his] niece had been raped." Another prosecutor interjected – mistakenly – that the relevant venire member was Venireperson 29. Defense counsel stated that she had "[n]o objection," and Venireperson 29 was stricken for cause (based on the circumstances to which Venireperson 28 had testified during voir dire).

Later, the court raised the prospect of striking Venireperson 29 based on hardship. The court accurately described Venireperson 29 as a psychotherapist who was concerned that jury service would disrupt her treatment of her patients. Counsel for the State responded that "I thought we already struck her for cause," and the court then repeated that "29 is struck already." During this exchange, the court also stated – unprompted and inaccurately – that "40 is struck. 40 is struck already." Neither the prosecution nor the defense corrected the court's misstatement that Venireperson 40 had been stricken.

At the close of the discussion of strikes for cause and for hardship, the court listed on the record those venire members who remained, including Venirepersons 28 and 40. Neither party raised any objection. Neither side used peremptory strikes against Venirepersons 28 or 40, and both served on Pike's jury.

The jury deadlocked on Count I, first-degree sodomy. On Count II, the jury convicted Pike of the lesser-included offense of domestic assault in the second degree in violation of § 565.073.² The circuit court accepted the jury's verdict on Count II, and declared a mistrial on Count I.

Pike subsequently entered into a plea agreement with the State to resolve the remaining charge. As part of the plea agreement, the State filed an amended information reducing the offense charged in Count I from first-degree sodomy to assault in the second degree in violation of § 565.052. The amended information added an additional charge of second-degree assault arising out of the April 12, 2018 incident as Count III, and a charge of damage to jail property in violation of § 221.353 as Count IV. Pike entered a plea of guilty to Counts I, III, and IV of the amended information on February 28, 2020.

The circuit court sentenced Pike to seven-year terms of imprisonment on Counts I, II and III, and a four-year term on Count IV. The sentences on Counts III and IV were ordered to run consecutively to each other, and consecutively to the sentence on Count II, for a total term of imprisonment of eighteen years.

Pike appeals. On appeal, he challenges only his conviction on Count II (the count of which he was convicted by the jury).

Standard of Review

Pike did not move to strike Venirepersons 28 and 40 before the jury was seated, and he did not challenge their service on the jury in his new-trial motion. Pike concedes that he failed to preserve his challenges to the qualifications of Venirepersons 28 and 40 for appellate review, and that he is entitled only to plain-error review.

When a claim of error is unpreserved, Rule 30.20 gives appellate courts discretion to review "plain errors affecting substantial rights ... when the court finds that manifest injustice or [a] miscarriage of justice has resulted therefrom." Rule 30.20. Review for plain error involves a two-step process. State v. Baumruk , 280 S.W.3d 600, 607 (Mo. 2009). The first step requires a determination of whether there is a claim of "evident, obvious, and clear" error which "facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted." Id. (citations and internal quotation marks omitted). "If plain error is found, the court must then proceed to the second step and determine whether the claimed error resulted in manifest injustice or a miscarriage of justice." Id. at 607-08 (citation and internal quotation marks omitted). "[T]he defendant bears the burden of demonstrating manifest injustice entitling him" to review. State v. Brandolese , 601 S.W.3d 519, 526 (Mo. 2020) (citation and internal quotation marks omitted).

"The plain error rule is to be used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review." State v. Jones , 427 S.W.3d 191, 195 (Mo. 2014). Moreover, "[n]ot all prejudicial error – that is,...