State v. Marr

499 S.W.3d 367 (Mo. Ct. App. 2016)

 

RULE:

When the defendant is aware of facts which would sustain a challenge for cause, he must present his challenge during the voir dire examination or prior to the swearing of the jury, otherwise, the point is waived. The failure to make a timely and proper objection to members of a jury panel constitutes a waiver. The policy for requiring a contemporaneous objection is to minimize the incentive for sandbagging in hopes of an acquittal and then, after an unfavorable verdict, challenge the selection of the jury which convicted. Though a challenge made for the first time after conviction may be considered for plain error resulting in a miscarriage of justice or manifest injustice, plain error review is waived when counsel has affirmatively acted in a manner precluding a finding that the failure to object was a product of inadvertence or negligence.

FACTS:

Defendant was convicted of first-degree trafficking and misdemeanor possession of a controlled substance for which she was sentenced, as a persistent offender, to a total of sixteen years' imprisonment. Defendant claimed that, for purposes of Mo. Rev. Stat. § 494.470 (2000 & ***. Sup. 2013), the trial court should have sua sponte struck one juror for cause because the juror was the trial judge's spouse. The appellate court affirmed the trial courts judgment.

ISSUE:

Should the trial court have struck a juror for a close relationship with the judge even though defendant did not seek to strike her at voir dire?

ANSWER:

No.

CONCLUSION:

The court did not need to decide whether a close relationship would warrant reversal because defendant waived any claim of error by not seeking to strike the juror. If a venireperson appeared to be biased, the appropriate remedy was to move to strike, and the court found no persuasive authority suggesting a court had a duty to sua sponte strike a juror under those circumstances.

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