State v. Marr

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



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.


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.


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?




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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