State of Missouri v. Mark C. Brandolese ( 2020 )

SUPREME COURT OF MISSOURI
en banc
STATE OF MISSOURI, ) Opinion issued June 30, 2020
)
Respondent, )
)
v. ) No. SC97697
)
MARK C. BRANDOLESE, )
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF PETTIS COUNTY
The Honorable Robert L. Koffman, Judge
Mark C. Brandolese appeals from the circuit court’s judgment convicting him of
one count of second-degree domestic assault and one count of armed criminal action.
Brandolese raises six points of error, challenging the circuit court’s failure to disqualify a
juror, the jury instruction submitted on self-defense, the circuit court’s response to the
jury’s question regarding the mental state for domestic assault, and two evidentiary rulings.
The circuit court’s judgment is affirmed. 1
1 This Court has jurisdiction under article V, section 10 of the Missouri Constitution.
Factual and Procedural History
Brandolese and C.E. resided together as roommates. In March 2016, a neighb or
called the police after C.E. appeared at the neighbor’s home with blood on his face. C.E.
repeatedly told the neighbor Brandolese hit him in the head with a cane.
Officer Todd Nappe responded to the neighbor’s home and spoke to C.E., who
appeared intoxicated. C.E. stated Brandolese cut him, and his injuries were photographed.
Officer Nappe also observed a cut across C.E.’s chest. Officer Nappe followed a trail of
blood from the neighbor’s home to the apartment where Brandolese and C.E. resided.
When Officer Nappe spoke to Brandolese about the incident, Brandolese told
Officer Nappe that, while he was asleep in a recliner, C.E. approached him and punched
him in the face. Brandolese woke up, grabbed his walking cane, and hit C.E. with it.
Brandolese stated the altercation moved into the bathroom, at which point Brandolese
pushed C.E. into a vanity mirror, causing it to break. Brandolese admitted to Officer Nappe
he “slashed” C.E. with a knife. Officer Nappe did not observe any visible marks on
Brandolese consistent with his account of being punched in the face; however, Brandolese
had blood on his left hand. Officer Nappe seized a blood-stained walking cane and a small
folding pocket knife.
Brandolese was arrested and charged with first-degree domestic assault, armed
criminal action, and unlawful use of a weapon. 2 At trial, C.E. did not testify. Brandolese
asserted self-defense but submitted outdated and improper self-defense instructions to the
2 The unlawful use of a weapon charge was dismissed prior to trial.
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court. The circuit court submitted to the jury a self-defense instruction tendered by the
State that was also an outdated version of the pattern instruction. The jury returned a
verdict finding Brandolese guilty of a lesser-included offense, second-degree domestic
assault, and armed criminal action. The circuit court sentenced Brandolese as a prior and
persistent offender to concurrent terms of 15 years’ imprisonment for domestic assault and
10 years’ imprisonment for armed criminal action. Brandolese appeals. 3
I. Juror Disqualification under Section 494.470.1 4
In his first point, Brandolese argues the circuit court plainly erred in failing to strike
for cause Juror No. 16 because she was the sister of an assistant prosecuting attorney who
participated in Brandolese’s case. Brandolese claims Juror No. 16 was statutorily
disqualified from serving on the jury pursuant to section 494.470.1, and the circuit court’s
ruling violated his right to a fair and impartial jury requiring reversal of his conviction and
a new trial.
All parties agree that Juror No. 16 is related to Robert Anthony Farkas, who served
as an assistant prosecuting attorney in Pettis County where Brandolese was convicted.
Farkas signed the complaint charging Brandolese. Docket entries indicate Farkas appeared
on the State’s behalf in Brandolese’s case on March 22, April 12, and May 17, 2016. On
June 1, 2016, a grand jury indicted Brandolese. Docket entries do not contain any reference
3 Other relevant facts will be discussed as necessary in the appropriate sections of this
opinion.
4 All statutory references are to RSMo Supp. 2013 unless otherwise indicated.
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to Farkas participating in the matter after Brandolese’s indictment was returned, and Farkas
did not participate in Brandolese’s trial in May 2017.
Phillip Sawyer, Pettis County’s elected prosecuting attorney, represented the State
at Brandolese’s trial. During jury selection, Juror No. 16 responded to a question posed by
defense counsel about being a crime victim. After Juror No. 16 gave her response to the
question, the following exchange took place:
[Defense Counsel]: I notice your last name. Are you a relative of Tony [F]arkas?
Juror 16: Yes. That’s my brother.
[Defense Counsel]: So your brother is a prosecutor?
Juror 16: Yeah.
Neither party questioned Juror No. 16 further about her relationship with her brother, prior
knowledge of the case due to the relationship, or whether the relationship would affect her
ability to be fair and impartial.
While asserting challenges for cause, Brandolese made a contemporary objection to
Juror No. 16 being seated on the jury because she was Farkas’ sister, but he did not argue
or claim Juror No. 16 was statutorily disqualified as authority for striking her. The
discussion was limited to Juror’s No. 16’s ability to be fair and impartial and included the
following exchange:
The Court: Strikes for the defense?
[Defense Counsel]: Farkas’ sister, Number 16, I think she should go for
cause.
The Court: Again, the question wasn’t asked –
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[The State]: There was no question.
The Court: -- to delve into why she couldn’t be fair. It just -- all the question
was, she’s Tony Farkas’ sister, nothing on why she can’t be fair. I’m not
taking that one for cause.
[Defense Counsel]: Even though her beloved brother works for the
prosecutor.
The Court: That’s great.
[Defense Counsel]: Okay.
The Court: I don’t even know if it’s a beloved brother. I didn’t hear any
evidence to that, either. The questions that would prejudice her have not
been asked. She’s giving you something that causes you to strike her for
preemptory challenge, I would agree, but for cause, I haven’t heard it.
Overruled.
Defense counsel did not use a peremptory strike to remove Juror No. 16, and she
served on the jury. Brandolese’s claim of error on this issue was not included in his motion
for new trial and at no time during the proceedings before this appeal did Brandolese allege
Juror No. 16 was statutorily disqualified from serving on the jury pursuant to section
494.070.1. Because Brandolese did not bring this alleged error to the circuit court’s
attention, Brandolese’s claim is reviewed for plain error under Rule 30.20. 5
Standard of Review
Generally, this Court does not review unpreserved claims of error. State v. Cella,
32 S.W.3d 114, 117 (Mo. banc 2000). Rule 30.20 alters the general rule by giving appellate
courts discretion to review “plain errors affecting substantial rights may be considered in
5 Brandolese concedes his claim of error was not preserved and seeks plain error review
from this Court.
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the discretion of the court . . . when the court finds that manifest injustice or miscarr ia ge
of justice has resulted therefrom.” Rule 30.20. “Plain error review is discretionary, and
this Court will not review a claim for plain error unless the claimed error ‘facially
establishes substantial grounds for believing that manifest injustice or miscarriage of
justice has resulted.’” Clay, 533 S.W.3d 710, 714 (Mo. banc 2017) (quoting State v.
Brown, 902 S.W.2d 278, 284 (Mo. banc 1995), and Rule 30.20). “The plain language of
Rule 30.20 demonstrates that not every allegation of plain error is entitled to review.” State
v. Nathan, 404 S.W.3d 253, 269 (Mo. banc 2013). “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. banc 2014).
Unless manifest injustice or a miscarriage of justice is shown, an appellate court should
“decline to review for plain error under Rule 30.20.” Id. at 196. Finally, “the defendant
bears the burden of demonstrating manifest injustice entitling him to” plain error review.
State v. Oates, 540 S.W.3d 858, 863 (Mo. banc 2018) (quoting State v. Baxter, 204 S.W.3d
650, 652 (Mo. banc 2006)).
Analysis
Section 494.470.1 provides, in pertinent part, “no person who is kin to … the injured
party, accused, or prosecuting or circuit attorney in a criminal case within the fourth degree
of consanguinity or affinity shall be sworn as a juror in the same cause.” Brandolese argues
his challenge to strike Juror No. 16 for cause should have been sustained pursuant to section
494.470.1. Brandolese contends the statute’s use of “prosecuting or circuit attorney” refers
to any attorney representing the State who participated in the prosecution of the case,
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making Juror No. 16 disqualified to serve on the jury. The State contends “prosecuting or
circuit attorney” as used in section 494.470.1 applies only to the elected prosecuting
attorney, not assistant prosecuting attorneys. Juror No. 16’s brother was not the elected
prosecutor, so the State argues the statute does not disqualify Juror No. 16.
This Court, however, need not decide whether the circuit court’s failure to sustain
Brandolese’s challenge to strike Juror No. 16 for cause violated section 494.470.1 because
Brandolese has not demonstrated the alleged error led to manifest injustice warranting plain
error review. Rule 30.20. Assuming, without deciding, whether section 494.470.1 applies
to the facts of this case and the circuit court erred in not striking Juror No. 16, Brandolese
must still “facially establish[] substantial grounds for believing that manifest injustice or
miscarriage of justice has resulted” to be entitled to plain error review and relief. Clay,
533 S.W.3d at 714; Oates, 540 S.W.3d at 863. Although Brandolese claims the circuit
court’s failure to disqualify Juror No. 16 pursuant to section 494.470.1 violated his right to
a fair and impartial jury resulting in manifest injustice, there is no evidence or allegatio n
beyond the alleged unpreserved error itself that Brandolese suffered an unfair or unjust
trial. Brandolese, therefore, has not met his burden to establish manifest injustice.
To be sure, a juror who cannot be fair and impartial should be stricken for cause to
ensure a fair and just trial. State v. Clark-Ramsey, 88 S.W.3d 484, 488-89 (Mo. App. 2002).
However, Brandolese does not allege nor demonstrate that Juror No. 16 was unfair or
partial causing a manifest injustice in his trial. Brandolese points to no statement by Juror
No. 16 that she was biased or partisan due to her relationship with her brother, nor does he
present any other evidence of unfairness, nor could he. Juror No. 16’s only relevant
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statement during jury selection responded to a question whether she was related to Farkas,
and no further questions were posed to Juror No. 16 about her relationship with her brother
or its effect on her ability to render an impartial and unbiased verdict. Previously, this
Court has not found reversible error after the defendant failed to ask the “obvio us
questions” to show prejudice by a member of the jury panel. See State v. Walton, 796
S.W.2d 374, 378-79 (Mo. banc 1990) (A juror who had “acquaintance and conversatio n”
about the case “was not shown to have formed any opinion or to have been exposed to any
facts indicating defendant’s guilt” because the exposure to the case “may have been
prejudicial or may have been innocuous.” To find prejudice “requires one to engage in
assumptions not supported by the record.”); see also Grimm v. Gargis, 303 S.W.2d 43, 49-
50 (Mo. 1957) (finding no error in refusing to strike a potential juror who was a longtime
friend of the plaintiff and visited the plaintiff in the hospital while plaintiff was recovering
from injuries that were at issue in the case). Because Brandolese has not shown or even
alleged Juror No. 16 was biased or unfair, he cannot establish manifest injustice warranting
plain error review and relief.
Moreover, Brandolese has not shown or even alleged that Juror No. 16 was aware
of Farkas’ participation in Brandolese’s pretrial proceedings. Juror No. 16’s only relevant
statement responded to a question whether she was related to Farkas. The question did not
say or suggest Farkas participated in the prosecution of the case at any point. The defense
asked Juror No. 16 only to clarify that her brother is a prosecutor. Brandolese and the
dissenting opinion claim section 494.470.1 was violated not solely because Juror No. 16
was related to an assistant prosecutor but also because Juror No. 16 was related to an
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assistant prosecutor that participated in the prosecution of his case. 6 This Court cannot
presume or impute bias to Juror No. 16 without some evidence or suggestion the juror knew
her brother was involved in an early stage of the prosecution. 7 See State v. Miller, 56
S.W.2d 92, 96 (Mo. 1932) (finding no prejudicial error in denying a new trial because “[a]
juror cannot be prejudiced by a fact unknown to him”); State v. Chandler, 314 S.W.2d 897,
900 (Mo. 1958) (finding no prejudicial error in denying a new trial when the source of
presumed bias was unknown to the disqualified juror); Cf. State v. Stewart, 246 S.W. 936,
939-40 (Mo. 1922) (holding no error in failing to disqualify a juror who was unaware he
was distantly related to the victim). “While the fact of relationship disqualifies the juror,
it is really knowledge of such fact on the part of the juror that may be expected to and in
fact does make such juror biased or prejudiced.” Miller, 56 S.W.2d at 96; see also
6 Even during the discussion with the circuit court about Brandolese’s challenge for cause,
the defense did not mention that Farkas briefly worked on the case more than a year before
trial. The challenge asserted only that Juror No. 16 should be stricken for cause because
her brother worked “for the prosecutor.” In fact, on review of the record on appeal, it is
not clear whether the defense, the State, or the court knew Farkas participated in the
preliminary proceedings of Brandolese’s case. The challenge for cause was based solely
on Juror No. 16’s relationship to an assistant prosecutor, not to an assistant prosecutor who
participated in the case at hand. But both Brandolese and the dissenting opinion would
find the circuit court committed plain error as a result of this fact that was never brought to
the court’s attention.
7 The only presumption this Court’s prior holdings require is that Juror No. 16 was a fair
and impartial juror. This Court has stated jurors are presumed to have followed the
instructions received from the court during trial. State v. Storey, 901 S.W.2d 886, 892 (Mo.
banc 1995). Instruction No. 1 instructed Juror No. 16 and the other members of the jury
that their verdict “must be based only on the evidence presented to you in the proceedings
in the courtroom.” Further, Instruction No. 1 directly commanded jurors to “perform your
duties without prejudice or fear, and solely from a fair and impartial consideration of the
whole case.” This Court, therefore, cannot presume Juror No. 16 was biased or partial in
the absence of evidence supporting that conclusion; rather, this Court must presume she
performed her duties as a juror fairly and impartially as Instruction No. 1 commanded. Id.
9
Chandler, 314 S.W.2d at 900. While Juror No. 16 knew of her relationship to Farkas, the
record does not show she knew of Farkas’ involvement in the case. As this Court has
explained, a juror cannot be prejudiced by a fact unknown to her.
Brandolese argues and concedes that, but for her brother’s participation in his case,
Juror No. 16 would have been eligible to serve as a juror pursuant to section 494.470.1.
Implicit in this position is the supposition that if Juror No. 16’s brother had not participa ted
in the case, Brandolese would have enjoyed a fair and impartial jury even though Juror
No. 16 knew her brother worked in the same office that prosecuted Brandolese. The
injustice alleged by Brandolese, therefore, hinges on Farkas’ participation in Brandolese ’s
case – a fact unknown to Juror No. 16. As Miller and Chandler instruct, however, it is the
knowledge of the disqualifying fact that creates the injustice, not the mere existence of the
fact. Because there is no evidence Juror No. 16 knew her brother participated in the case,
there is no basis warranting a finding of prejudice under this Court’s decisions in Miller
and Chandler.
Nothing in the record before this Court establishes Juror No. 16 caused an injustice
to Brandolese or prejudiced him. Brandolese does not allege and presents no evidence of
unfairness or impartiality from the juror in question. In the complete absence of evidence
showing bias or partisanship—or even evidence showing knowledge of the alleged ly
disqualifying relationship—Brandolese cannot establish manifest injustice.
The dissenting opinion recognizes the alleged violation of section 494.470.1 is
limited to plain error review because Brandolese failed to include the error in his motion
for new trial. Slip op. at 3. Even after this recognition, the dissenting opinion fails to apply
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Rule 30.20 framework and, instead, delves into a full merits analysis that relies on
unnecessary interpretations of section 494.470.1 and constitutional and structural error
arguments. This position, however, ignores Rule 30.20’s exclusivity by jumping into a
merits analysis without finding manifest injustice. Such a conclusion is unsupported by
this Court’s precedent and the language of Rule 30.20, which limits plain error review to
situations “when the court finds that manifest injustice or miscarriage of justice has resulted
therefrom.”
As previously stated, Rule 30.20 alters the general rule that this Court does not
address unpreserved claims of error. It is axiomatic, then, that the only way to review an
unpreserved claim of error is to comply with Rule 30.20. There is no alternative method
for applying plain error review. Based on the alleged error, the dissenting opinio n,
however, utilizes a different method to conduct plain error review of this claim.
The dissenting opinion suggests this Court’s plain error analysis does not apply if
an unpreserved statutory or constitutional violation is serious enough because the alleged
error, in and of itself, establishes manifest injustice. This assertion has no basis in Rule
30.20, which clearly states that, in the realm of plain error, it matters not what the claim of
error is, only that the claim of error is unpreserved. See Rule 30.20. The dissenting
opinion’s assertion is also belied by this Court’s plain error precedent, which regular ly
addresses both statutory and constitutional claims through its well-established plain error
framework and not any altered standard. See Grado v. State, 559 S.W.3d 888, 899-900
(Mo. banc 2018) (applying plain error analysis to unpreserved constitutional claim of
11
error); see also State v. Johnson, 524 S.W.3d 505, 511-15 (Mo. banc 2017) (applying plain
error analysis to unpreserved statutory claim of error). 8
Furthermore, this Court previously rejected the argument that constitutio na l
violations are subject to a different plain error analysis in State v. Howard, 540 S.W.2d 86
(Mo. banc 1976). In Howard, the defendant sought plain error review after the circuit court
commented on the defendant’s failure to testify during his jury trial. Id. at 87. On appeal,
it was suggested that Howard was automatically entitled to plain error relief without
establishing manifest injustice because of the egregious federal constitutional violation. Id.
This Court rightly refused this invitation, holding “[e]ven a federal constitutional error may
be considered harmless. We will continue to review all the facts and circumstances in each
case and determine on a case-to-case basis whether manifest injustice has resulted from the
alleged error.” Id. (internal citation omitted). This Court then utilized plain error analys is
to determine a manifest injustice occurred at Howard’s trial. Id. at 87-88. Therefore,
Howard stands for the proposition that all errors—whether statutory, constitutio na l,
8 The unpreserved claim of structural error alleged by the dissenting opinion also does not
automatically warrant reversal without a showing of manifest injustice. The dissenting
opinion acknowledges the United States Supreme Court “has several times declined to
resolve whether ‘structural’ errors—those that affect ‘the framework within which the trial
proceeds,’ —automatically satisfy the third prong of the plain-error test.” Puckett v. United
States, 556 U.S. 129, 140 (2009) (quoting Arizona v. Fulminante, 499 U.S. 279, 310
(1991)) (internal citation omitted). Moreover, federal courts do not follow Rule 30.20 and
apply a different standard for conducting plain error review than Missouri courts. While
the federal question remains open as to the application of plain error review to claims of
structural error, this Court’s precedent on plain error review under Rule 30.20 is clear in
requiring a showing of manifest injustice.
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structural, or based in some other source—are subject to the same treatment under this
Court’s plain error framework.
To be sure, however, Brandolese suffered no constitutional infirmity when Juror
No. 16 served on the jury even if she was statutorily disqualified. The Sixth and Fourteenth
Amendments to the United States Constitution and article I, section 18(a) of the Missour i
Constitution guarantee a criminal defendant the right to a fair and impartial jury. State v.
Clark, 981 S.W.2d 143, 146 (Mo. banc 1998). The constitutional right to a fair and
impartial jury, however, does not itself require the exclusion of any juror within a certain
degree of consanguinity or with another personal relationship to one of the parties. See
State v. Ervin, 835 S.W.2d 905, 915-16 (Mo. banc 1992). Absent a federal constitutio na l
violation, states have the power to decide whether an error in violation of state statute
requires automatic reversal. Rivera v. Illinois, 556 U.S. 148, 161-62 (2009).
Rule 30.20 is the exclusive means by which an appellant can seek review of any
unpreserved claim of error and said claim—no matter if it is statutory, constitutio na l,
structural, or of some other origin—is evaluated by this Court’s plain error framework
without exception. A violation of section 494.470.1 or any juror qualification statute does
not itself manifestly insinuate that a defendant received an unfair and unjust trial warranting
plain error review and relief under Rule 30.20. 9 Under plain error review, the defendant
9 There are many other juror disqualification provisions beyond section 494.470. Section
494.425 contains a long list of disqualifications for prospective jurors. Statutorily
disqualified jurors include: anyone under 21 years of age; a person who is not a resident
of the area served by the court serving summons; a felon who has not had his or her civil
rights restored; any person on active military duty; and a judge. Absent evidence to the
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still bears the burden of establishing manifest injustice if an unqualified juror serves on a
jury. Oates, 540 S.W.3d at 863. While an individual who meets the criteria for
disqualification under section 494.470.1 should be disqualified and excused, failure to do
so does not independently result in manifest injustice, especially where there is no evidence
the juror knew of her relative’s involvement in the case. Therefore, Brandolese is not
entitled to reversal of his conviction and a new trial because the circuit court declined to
strike Juror No. 16 for cause.
II. Instructional Errors
In Points II, III, and IV, Brandolese alleges the circuit court erred instructing the
jury on self- defense and the definition of knowingly as used in a separate instructio n.
These claims of error, however, were not raised with the circuit court. The self-defense
instruction the circuit court gave at the State’s request was based on an outdated version of
the pattern instruction. While Brandolese objected to giving this instruction, he requested
and proposed two separate self-defense instructions that, likewise, were outdated and
improper. During jury deliberations, the jury submitted a written question to the court
asking for a definition of “knowingly” as used in the second-degree domestic assault
verdict director. Without objection from Brandolese, the circuit court responded to the
jury’s question with the following instruction: “You are bound by the law as it has been
presented to you. This is the only answer the Court is allowed to give you.”
contrary, manifest injustice does not automatically result if a statutorily disqualified juror
serves on a jury. If this Court were to hold otherwise, appellate courts would be required
to grant relief under plain error review any time a defendant raises the disqualifying fact
for the first time on appeal regardless of whether a challenge for cause was made.
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Point II alleges the circuit court erred in not modifying sua sponte the self-defense
instruction submitted to the jury to remove initial aggressor language or, in the alternative,
to include a definition of the term “initial aggressor.” Point III alleges the circuit court
erred in not modifying sua sponte the same self-defense instruction to include the option
of non-deadly force as well as to include proper language and guidance regarding
permissible use of deadly force. In Point IV, Brandolese alleges the circuit court erred in
failing to define the term “knowingly” following the written question from the deliberating
jury. Brandolese requests plain error review of all three allegations of instructional error.
Standard of Review
“Instructional error requires reversal when the error is ‘so prejudicial that it deprived
the defendant of a fair trial.’” State v. Sanders, 522 S.W.3d 212, 215 (Mo. banc
2017) (quoting State v. Nash, 339 S.W.3d 500, 511-12 (Mo. banc 2011)); see also State v.
Forrest, 183 S.W.3d 218, 229 (Mo. banc 2006). “All prejudicial error, however, is not
plain error, and plain errors are those which are evident, obvious, and clear.” State v.
Baumruk, 280 S.W.3d 600, 608 (Mo. banc 2009) (internal quotations and alteratio ns
omitted). But even if the instructional error is evident, obvious and clear, the defendant
must “demonstrate that the trial court so misdirected or failed to instruct the jury as to cause
manifest injustice or a miscarriage of justice.” State v. Cooper, 215 S.W.3d 123, 125 (Mo.
banc 2007). Moreover, “plain error review is discretionary,” and “this Court will not use
plain error to impose a sua sponte duty on the trial court to correct Defendant’s invited
errors.” State v. Bolton, 371 S.W.3d 802, 806 (Mo. banc 2012).
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Analysis
Point II
Brandolese alleges the circuit court plainly erred in not modifying sua sponte the
State’s non-compliant jury instruction either to remove “initial aggressor” language or to
provide a definition of “initial aggressor.” He supposes the jury’s verdict would have
differed without the initial aggressor language, or if the court had provided a definition of
“initial aggressor.”
Because Brandolese requested the circuit court commit error by submitting
improper and non-compliant self-defense instructions, he is not entitled to plain error
review of this matter. Failure to submit a mandatory instruction is reversible error under
plain error review when the instruction is requested by the defendant and refused by the
circuit court. State v. Westfall, 75 S.W.3d 278, 281 n.9 (Mo. banc 2002). However, a party
invites error by submitting a patently incorrect instruction. “It is axiomatic that a defendant
may not take advantage of self-invited error or error of his own making.” State v.
Mayes, 63 S.W.3d 615, 632 n.6 (Mo. banc 2001) (alteration omitted). In State v. Bolden,
this Court declined to conduct plain error review and impose a sua sponte duty to modify
a self-defense jury instruction when the defendant invited the error by agreeing to the
instruction. 371 S.W.3d at 805-06. Brandolese did not agree to the self-defense instructio n
submitted by the circuit court, but he invited error by requesting and proposing outdated
and improper self-defense instructions. While the case here can be distinguished from
Bolden, this Court similarly should “not use plain error to impose a sua sponte duty on the
trial court” to instruct the jury properly when the very instructions Brandolese requested
16
the circuit court submit invited and would have caused the circuit court to commit
instructional error. Id. at 806.
Even if this Court were to exercise its discretion and conduct plain error review, it
cannot find manifest injustice—let alone an “evident, obvious, and clear” error—for failing
to modify an instruction that does not erroneously state the law. See Baumruk, 280 S.W.3d
at 607-08. The Notes on Use for the approved pattern self-defense instruction provide the
initial-aggressor language should be excluded only if “there is no evidence that the
defendant was the initial aggressor or provoked the incident.” See MAI-CR 3d 306.06 and
MAI-CR 3d 306.06A, Notes on Use 4(a) (emphasis added). If there is evidence the
defendant was the initial aggressor, the self-defense instruction should include the initia l-
aggressor language. Id. The evidence the State elicited that Brandolese had no visib le
marks on his face consistent with being punched in the face suggest Brandolese, not C.E.,
was the initial aggressor or provocateur in the altercation and supported submitting the
initial aggressor language. Similarly, Brandolese cannot establish manifest injustice for
the lack of definition of initial aggressor. Mere speculation as to what might have occurred
if the term were defined is not sufficient to establish manifest injustice. See State v.
Goodwin, 43 S.W.3d 805, 820 (Mo. banc 2001). Therefore, Brandolese fails to show how
the circuit court’s instruction with the undefined initial aggressor language constituted
evident, obvious and clear error resulting in manifest injustice.
Point III
In his third point, Brandolese alleges the circuit court erred in not sua sponte
modifying the self-defense instruction as it pertains to the use of deadly force. Brandolese
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argues the instruction submitted to the jury failed to reflect that the issue of whether he
used deadly force was in question under the facts of the case. He contends the term
“non-deadly” should have been included in the instruction; he also complains of various
other non-substantive deviations from the pattern instruction. Notably, the instructio ns
Brandolese proposed and submitted to the circuit court also deviated from the pattern
instruction with respect to these issues.
Brandolese fails again to make the required showing warranting relief under plain
error review. As in Bolden, this Court does not wish to impose a duty on the circuit court
to modify sua sponte a jury instruction when the instruction Brandolese submitted deviated
from the pattern instruction and invited the court to err in the manner claimed on appeal.
Bolden, 371 S.W.3d at 806.
In addition, the submitted instruction did not erroneously state the law. The
instruction omitted the term “non-deadly” and other language from the approved patterned
instruction when describing the use of force in self-defense but accurately explained the
facts the jury must find “for a person lawfully to use force in self-defense.” MAI-CR 3d
306.06 (eff. 1-1-07); MAI-CR 3d 306.06A (eff. 1-1-09). While the non-complia nt
instruction submitted by the circuit court did not suggest whether the force Brandolese used
was deadly or non-deadly, the language and guidance in the instruction did not deviate
from the substantive law. Therefore, Brandolese cannot establish an evident, obvious, and
clear error that resulted in manifest injustice solely through non-substantive variation in
the language of the self-defense instruction.
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Point IV
In his fourth point, Brandolese alleges the circuit court plainly erred in its response
to the deliberating jury’s request for a definition of “knowingly” as used in the verdict
director for second-degree domestic assault. This verdict director required the jury to find
Brandolese “knowingly caused physical injury to” C.E. The instruction did not, however,
define “knowingly.” The jury asked the court for a definition, noting the verdict director
for the lesser-included offense of third-degree domestic assault included a definition of
“recklessly.” After conferring with the parties, the court answered, “You are bound by the
law as it has been presented to you. This is the only answer the Court is allowed to give
you.”
“The response to a jury question is within the sound discretion of the trial court
and the practice of exchanging communications between the judge and jury is not
commended.” State v. Guinn, 58 S.W.3d 538, 548 (Mo. App. 2001) (citing State v.
Taylor, 408 S.W.2d 8, 10 (Mo. 1966)). “Responses that simply refer the jury to the proper
instructions already given are not improper.” State v. Johnston, 957 S.W.2d 734, 752 (Mo.
banc 1997). The Notes on Use for the approved pattern instruction for second-degree
domestic assault provides the term “knowingly” as used in the instruction “may be defined
by the court on its own motion and must be defined upon written request in proper form by
the state or by the defendant.” MAI-CR 3d 319.74, Notes on Use ¶8 (emphasis added).
19
Neither party requested the term be defined before the instructions were read to the jury. 10
Therefore, the verdict director was in proper form when read to the jury. When jury
instructions are correct, a court may respond to a jury’s question by instructing the jury to
be guided by those instructions. State v. Clay, 975 S.W.2d 121, 134 (Mo. banc 1998).
Brandolese fails to show an error that is evident, obvious, and clear or a manifes t
injustice from the circuit court’s response. Because the verdict director was correct, the
court’s response to the jury’s question was not improper. Furthermore, Brandolese only
speculates that the definition of “knowingly” would have changed the outcome of the jury’s
deliberation in his favor. This speculation does not give rise to manifest injustice. See
Goodwin, 43 S.W.3d at 820. Therefore, the circuit court’s response to the jury’s question
does not warrant relief under plain error review.
III. Exclusion of Evidence
Brandolese contends the circuit court abused its discretion in excluding the
testimony of a defense witness about the victim, C.E.’s, “reputation” for violence. At trial,
Brandolese’s counsel informed the circuit court he intended to call another roommate of
C.E. as a witness. The witness would testify that, on a specific occasion after the altercatio n
with Brandolese, C.E. drank heavily and acted violently toward the witness. Brandolese
argued this evidence would support his claim of self-defense because the witness would
show C.E.’s “modus operandi” of drunkenness and violence. Outside the presence of the
10 In response to the jury’s question, the State orally requested the circuit court provide the
approved pattern instruction definition for “knowingly,” but Brandolese did not join in this
request.
20
jury, the witness testified in an offer of proof that he lived with C.E. for about a month and
a half after C.E. was assaulted by Brandolese. The witness recounted that he once tried to
pour out C.E.’s liquor and C.E. reacted by attacking the witness. The prosecutor objected
to witness’s proffered testimony, and the circuit court excluded the testimony.
Standard of Review
The circuit court has broad discretion in admitting evidence at trial, and error will
be found only for a clear abuse of this discretion. State v. Simmons, 955 S.W.2d 729, 737
(Mo. banc 1997). This Court will find a circuit court abused its discretion only when a
ruling is
clearly against the logic and circumstances then before the court and is so
arbitrary and unreasonable as to shock the sense of justice and indicate a lack
of careful consideration; if reasonable persons can differ about the propriety
of the action taken by the trial court, then it cannot be said that the trial court
abused its discretion.
State v. Brown, 939 S.W.2d 882, 883-84 (Mo. banc 1997) (alteration omitted). This Court
“reviews the trial court ‘for prejudice, not mere error, and will reverse only if the error was
so prejudicial that it deprived the defendant of a fair trial.’” State v. Zink, 181 S.W.3d 66,
73 (Mo. banc 2005) (quoting State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999)).
“Trial court error is not prejudicial unless there is a reasonable probability that the trial
court’s error affected the outcome of the trial.” Id.
Analysis
“[T]he trial court may permit a defendant to introduce evidence of the victim’s prior
specific acts of violence of which the defendant had knowledge, provided that the acts
sought to be established are reasonably related to the crime with which the defendant is
21
charged.” State v. Waller, 816 S.W.2d 212, 216 (Mo. banc 1991) (emphasis added). In
addition, evidence of a victim’s “reputation for turbulence and violence is admissible as
relevant to show who was the aggressor and whether a reasonable apprehension of danger
existed.” State v. Gonzales, 153 S.W.3d 311, 313 (Mo. banc 2005) (quoting State v.
Buckles, 636 S.W.2d 914, 923 (Mo. banc 1982)) (emphasis added). However, reputatio n
evidence must be through “general reputation testimony, not specific acts of violence.” Id.
(quoting Buckles, 636 S.W.2d at 923). Additionally, the defendant must show he or she
knew of the victim’s reputation for turbulence and violence. State v. Rutter, 93 S.W.3d
714, 731 (Mo. banc 2002).
Here, the witness’s testimony did not offer general reputation evidence. Instead, the
testimony offered pertained only to a specific act of violence that took place after the
assault. Whether C.E. committed a specific act of violence after the altercation in this case
is not relevant to the question of C.E.’s reputation for violence or Brandolese’s reasonable
apprehension of harm during the altercation. Under Rutter, a specific act of violence would
be admissible only if offered to demonstrate a basis for Brandolese to fear C.E. The
incident in the witness’s testimony that took place after the charged assault, however, could
not possibly form the basis for Brandolese’s fear of C.E. Furthermore, because the
proffered testimony was not general reputation evidence, it could not be admitted to
support a theory that C.E. was the initial aggressor. See Gonzales, 153 S.W.3d at 313.
Because the witness’s testimony described only one specific act by C.E. after the
charged incident in this case had occurred, the circuit court acted within its discretion in
excluding the witness’s testimony.
22
IV. Hearsay
Brandolese argues the circuit court committed plain error in allowing hearsay
evidence that violated his Confrontation Clause rights. Brandolese complains of several
incidents involving supposed hearsay testimony, but these claims of error were not raised
or made to the circuit court in the motion for new trial and, therefore, are not preserved for
appellate review.
Standard of Review
“Unpreserved issues can only be reviewed for plain error, which requires a find ing
that manifest injustice or a miscarriage of justice has resulted from the trial court error.”
In re Care & Treatment of Braddy, 559 S.W.3d 905, 909 (Mo. banc 2018) (interna l
quotations omitted). 11
Analysis
“A hearsay statement is any out-of-court statement that is used to prove the truth of
the matter asserted and that depends on the veracity of the statement for its value.” State
v. Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006). “Hearsay statements generally are
inadmissible.” State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997). Additiona lly,
a testimonial out-of-court statement is not admissible against the defendant under the
Confrontation Clause unless the requirements of Crawford v. Washington, 541 U.S. 36
(2004), are met. State v. Kemp, 212 S.W.3d 135, 147-48 (Mo. banc 2007). 12
11The standard for plain error is more thoroughly set forth in the discussion of Point I.
12Crawford requires exclusion of testimonial, out-of-court statements that are otherwise
admissible unless the witness is unavailable at trial and the defendant previously had an
opportunity to cross-examine the witness. 541 U.S. at 53-54.
23
The first incident for which Brandolese alleges error involves the neighbor witness’s
volunteered statement that C.E. told her Brandolese repeatedly hit him with a cane. The
following exchange took place during the neighbor’s testimony:
Q. Okay. When you called 911, …what did you tell them; what were you aware
of?
A. …[The victim] kept telling me over and over and over that…[Brandolese] hit
him in the head with a cane.
[Defense Counsel]: Objection.
The Court: What’s your objection?
[Defense Counsel]: Hearsay, and that’s not hearsay.
[The Prosecutor]: Excited utterance.
[Defense Counsel]: It’s not an excited utterance.
The Court: Are you objecting or not?
[Defense Counsel]: I am objecting.
[The Prosecutor]: Excited utterance. He showed up at her house and told her what
was going on and to call 911.
[Defense Counsel]: I think you should—
The Court: I think I’m going to sustain that.
The circuit court sustained the objection on which Brandolese bases his claim of error.
Therefore, no error—let alone evident, obvious, and clear error—exists.
Later, the circuit court overruled a hearsay objection by Brandolese during Officer
Nappe’s testimony. The prosecuting attorney asked whether Officer Nappe developed an
idea of what happened at the scene:
24
Q. Did you develop some form of an investigation or some form of an idea what
transpired by talking to [the victim]?
A. Yes.
[Defense Counsel]: Objection, hearsay.
The circuit court overruled this objection. Brandolese suggests this was an error that is
evident, obvious, and clear. However, the question does not ask for hearsay, nor did the
officer’s response repeat an out-of-court statement. Officer Nappe testified only that he
formed an idea of what had taken place after he spoke with C.E. Therefore, Brandolese
fails to establish any error in the circuit court’s ruling, let alone an evident, obvious, and
clear error, nor does he make a showing of manifest injustice.
Finally, the circuit court overruled a hearsay objection by Brandolese when the State
asked Officer Nappe how he knew C.E. was cut by a knife and Officer Nappe said C.E.
told him Brandolese slashed him with a knife. Immediately following this question, the
State asked Officer Nappe if he spoke with Brandolese about the knife. Officer Nappe
responded he had and testified Brandolese said he had “sliced the victim with a knife. ”
Brandolese did not object to this portion of Officer Nappe’s testimony.
“The improper admission of hearsay evidence requires reversal [only] if such
evidence is prejudicial.” Saint Louis Univ. v. Geary, 321 S.W.3d 282, 291 (Mo. banc
2009). “Confrontation Clause violations are subject to the harmless error test found in
Chapman v. California, 386 U.S. 18, 24 (1967).” State v. March, 216 S.W.3d 663, 667
(Mo. banc 2007). “A complaining party is not entitled to assert prejudice if the
challenged evidence is cumulative to other related admitted evidence.” Saint Louis Univ.,
25
321 S.W.3d at 292. “Cumulative evidence is additional evidence that reiterates the same
point.” Id. “Evidence challenged on constitutional grounds that is cumulative of other,
properly admitted evidence cannot have contributed to a defendant’s conviction and so is
harmless beyond a reasonable doubt.” State v. Davidson, 242 S.W.3d 409, 418 (Mo. App.
2007); see also State v. Bell, 274 S.W.3d 592, 595-96 (Mo. App. 2009) (finding admitting
an examiner’s testimony about a doctor’s opinions was harmless error because the evidence
was cumulative). Plain error review “requires a finding that manifest injustice or a
miscarriage of justice has resulted from the trial court error.” State v. Perry, 548 S.W.3d
292, 300 (Mo. banc 2018) (quoting State v. Letica, 356 S.W.3d 157, 167 (Mo. banc 2011)).
In light of subsequent testimony regarding Brandolese’s own statement to Officer
Nappe, whether the circuit court may have erred in allowing the officer to testify regarding
C.E.’s statement in this instance is immaterial. Brandolese cannot show that the error was
outcome-determinative and resulted in manifest injustice if later testimony demonstra ted
the same fact. See Saint Louis Univ., 321 S.W.3d at 292. For this reason, Brandolese is
not entitled to relief due to the circuit court overruling his objection to the testimony.
Conclusion
The circuit court’s judgment is affirmed.
_____________________
W. Brent Powell, Judge
Wilson and Fischer, JJ., concur; Russell, J., concurs in part and in result and concurs in
part in dissenting opinion in separate opinion filed; Draper, C.J., dissents in separate
opinion filed; Breckenridge and Stith, JJ., concur in opinion of Draper, C.J.
26
SUPREME COURT OF MISSOURI
en banc
STATE OF MISSOURI, )
)
Respondent, )
)
v. ) No. SC97697
)
MARK C. BRANDOLESE )
)
Appellant. )
OPINION CONCURRING IN PART AND IN RESULT AND CONCURRING IN
PART IN DISSENTING OPINION
I agree with the principal opinion’s analysis concluding that Mark Brandolese did
not meet his burden establishing manifest injustice and that any violation of section
494.470.1 1 did not constitute plain error. I respectfully disagree, however, with the
principal opinion’s failure to find a violation of section 494.470.1. I agree with the
dissenting opinion’s analysis concluding that, for purposes of section 494.470.1, the
legislature intended the meaning of “prosecuting attorney” to encompass assistant
prosecuting attorneys, and, as a result, Juror No. 16 was disqualified from serving on
Brandolese’s jury under section 494.470.1. But, for the reasons indicated in the principal
1 All statutory references are to RSMo Supp. 2013 unless otherwise specified.
opinion, Brandolese failed to meet his burden demonstrating manifest injustice or
prejudice, and the circuit court’s violation of section 494.470.1 did not constitute plain
error. Accordingly, I would affirm the circuit court’s judgment.
______________________________
Mary R. Russell, Judge
2
SUPREME COURT OF MISSOURI
en banc
STATE OF MISSOURI, )
)
Respondent, )
)
v. ) No. SC97697
)
MARK C. BRANDOLESE, )
)
Appellant. )
DISSENTING OPINION
The principal opinion’s holding, which condones kin of the assistant prosecuting
attorney sitting in judgment on a case in which the assistant prosecuting attorney actively
participated in, surely has legal scholar Sir William Blackstone spinning in his grave. Not
only is this holding unsupported by centuries-old precedent, Missouri caselaw, or a proper
reading of section 494.470.1, RSMo Supp. 2013, under this Court’s rules of statutory
construction, but it places burdens upon a defendant that are not required by the statute and
reaches a patently absurd result. 1 Accordingly, I dissent.
1 All statutory references are to RSMo Supp. 2013 unless otherwise indicated.
Juror Disqualification under Section 494.470
In his first point, Mark C. Brandolese (hereinafter, “Brandolese”) argues the circuit
court plainly erred in failing to strike Juror No. 16 for cause because she was the sister of
a Pettis County assistant prosecuting attorney, Robert Anthony Farkas (hereinafter,
“Farkas”), who participated in Brandolese’s case. Brandolese claims the circuit court’s
ruling violated his right to a fair and impartial jury and section 494.470.1.
Standard of Review
“When the defendant is aware of facts which would sustain a challenge for cause,
he [or she] must present [the] challenge during the voir dire examination or prior to the
swearing of the jury, otherwise, the point is waived.” State v. Marr, 499 S.W.3d 367, 376
(Mo. App. W.D. 2016) (quoting State v. Goble, 946 S.W.2d 16, 18 (Mo. App. S.D. 1997)).
“The rule requiring contemporaneous objections to the qualifications of jurors is well
founded. It serves to minimize the incentive to sandbag in the hope of acquittal and, if
unsuccessful, mount a post-conviction attack on the jury selection process.” State v.
Hadley, 815 S.W.2d 422, 423 (Mo. banc 1991).
While asserting challenges for cause, Brandolese made a contemporary objection to
Juror No. 16 being seated on the jury because she was Farkas’ sister and characterized
Farkas as Juror No. 16’s “beloved brother [who] works for the prosecutor.” Although
Brandolese did not cite section 494.470.1 in his timely objection, he plainly and
unequivocally informed the circuit court he believed Juror No. 16 should be struck for
cause due to her kinship with Farkas. In State v. Amick, 462 S.W.3d 413, 415 (Mo. banc
2015), this Court found a strikingly similar objection—which occurred when an improper
2
juror substitution occurred—was timely and specific enough to preserve the error, even
though defense counsel failed to cite the specific statute at issue. Here, the undisputed facts
show Brandolese did not wait to raise Juror No. 16’s qualification to sit as a juror until his
appeal. The record unmistakably demonstrates that, prior to the jury being seated,
Brandolese fully informed the circuit court his objection to Juror No. 16 sitting on the jury
was due to her kinship with Farkas, who undisputedly worked for the prosecuting
attorney’s office trying his case. However, because Brandolese did not include this claim
of error in his motion for new trial, he is entitled only to plain error review. State v. Perry,
548 S.W.3d 292, 300 (Mo. banc 2018).
“This Court always has the discretion to engage in plain error review of issues
concerning substantial rights, especially constitutional rights ….” State v. Rice, 573
S.W.3d 53, 73 (Mo. banc 2019) (quoting State v. Brooks, 304 S.W.3d 130, 136 n.2
(Mo. banc 2010)). In applying plain error review, the principal opinion reframes the actual
legal issue Brandolese presents and scarcely addresses section 494.470.1 or a defendant’s
substantive, constitutional right to a fair and impartial jury. The principal opinion must
ignore section 494.470.1 to reach its desired result because confronting the statute’s plain
language undermines the principal opinion’s entire rationale that there was no manifes t
injustice in allowing Juror No. 16 to participate in deciding his fate. 2
2 The principal opinion relies on State v. Howard, 540 S.W.2d 86 (Mo. banc 1976), as
rejecting a different plain error analysis when constitutional rights are at issue. In Howard,
the defendant asserted relief always should be given under plain error when a constitutio na l
error is implicated. Id. at 87. This Court rejected that argument, finding it was appropriate
to “determine on a case-to-case basis whether manifest injustice has resulted from the
alleged error.” Id. I do not advocate for automatic reversal in every instance; however, I
3
Brandolese’s claim involves a question of statutory interpretation, which is a
question of law this Court reviews de novo. State v. Richey, 569 S.W.3d 420, 423
(Mo. banc 2019). “It is a basic rule of statutory construction that words should be given
their plain and ordinary meaning whenever possible.” State v. Johnson, 524 S.W.3d 505,
510 (Mo. banc 2017) (quoting State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 479 (Mo.
banc 2013)). “This Court must presume every word, sentence or clause in a statute has
effect, and the legislature did not insert superfluous language.” Bateman v. Rinehart, 391
S.W.3d 441, 446 (Mo. banc 2013). “This Court may not add language to an unambiguo us
statute.” Johnson, 524 S.W.3d at 511.
The Right to an Impartial Jury
The Sixth Amendment guarantees every criminal defendant the right to a trial by an
impartial jury. U.S. Const. amend. VI. The Missouri Constitution guarantees crimina l
defendants the right to a “trial by an impartial jury of the county.” Mo. Const. art. I,
sec. 18(a). Further, in Theobald v. St. Louis Transit Co., 90 S.W. 354, 359 (Mo. 1905),
this Court recognized:
Under our system of jurisprudence there is no feature of a trial more
important and more necessary to the pure and just administration of the law
than that every litigant shall be accorded a fair trial before a jury of his
countrymen, who enter upon the trial totally disinterested and wholly
unprejudiced.
believe this specific case demonstrates Brandolese’s constitutional right to a fair and
impartial jury was violated when Juror No. 16 was not struck for cause due to her kinship
with Farkas, resulting in a manifest injustice.
4
“To qualify as a juror, the venireperson must be able to enter upon that service with
an open mind, free from bias and prejudice.” State v. Ervin, 835 S.W.2d 905, 915 (Mo.
banc 1992). “A defendant is entitled to a full panel of qualified jurors before he [or she]
makes peremptory challenges ….” State v. Lovell, 506 S.W.2d 441, 443 (Mo. banc 1974).
“[E]rrors in the exclusion of potential jurors should always be on the side of caution. ”
State v. Walton, 796 S.W.2d 374, 381 (Mo. banc 1990) (alterations in original) (quoting
State v. Draper, 675 S.W.2d 863, 865 (Mo. banc 1984)). Failure to sustain a meritor io us
challenge for cause to excuse a biased or prejudiced venireperson constitutes prejudicia l
error. State v. Schnick, 819 S.W.2d 330, 333 (Mo. banc 1991).
“Before statehood and up to 1835 [Missouri] had only one statute dealing with the
competency of jurors.” State v. Thomas, 174 S.W.2d 337, 339 (Mo. 1943). The statute
“said nothing about any disqualification of jurors because of kinship between them and the
litigants.” Id. In 1835, the legislature adopted Missouri’s first criminal code, which
contained the first statute to address juror competence in criminal cases:
When any indictment alleges an offence [sic] against the person or property
of another, neither the injured party, or any person of kin to him, shall be a
competent juror on the trial of such indictment, nor shall any person of kin
to the prosecutor or defendant, in any case, serve as a juror on the trial
thereof.
Art. VI, sec. 8, RSMo 1835 (emphasis added). “The clear purpose” of this provision was
“to secure fair and unprejudiced jurors.” State v. Stewart, 246 S.W. 936, 939 (Mo. 1922)
(construing this statute’s successor section 4011, RSMo 1919). Although the constitutio na l
right to a fair and impartial jury does not require the exclusion of jurors within a certain
degree of consanguinity to a prosecuting attorney, Missouri has chosen to provide this
5
protection for more than 185 years. 3 The 1835 statute has been recodified several times,
but the language disqualifying kin of “a prosecutor” remained virtually identical until 1989,
when the legislature adopted section 494.470, which addresses juror competence in both
criminal and civil cases. 4
Section 494.470
Section 494.470.1 provides in pertinent part, “no person who is kin to … the injured
party, accused, or prosecuting or circuit attorney in a criminal case within the fourth degree
of consanguinity or affinity shall be sworn as a juror in the same cause.” Brandolese argues
his challenge to strike Juror No. 16 for cause should have been sustained because, as
Farkas’ sister, she was disqualified pursuant to section 494.470.1 from serving on the jury
in that Farkas was a prosecuting attorney in the same cause. Brandolese contends
3 The principal opinion cites Ervin for the proposition “the constitutional right to a fair and
impartial jury does not itself require the exclusion of any juror within a certain degree of
consanguinity or with another personal relationship to one of the parties.” Slip op. at 13.
Ervin does not so state or hold. Further, Ervin is inapposite in that it concerned striking a
juror who was an acquaintance of the victim and an investigating officer. Ervin, 835
S.W.2d at 915-16. Hence, the juror was not related by consanguinity or engaged in a
relationship with a party to the case.
4 In 1989, the legislature also enacted section 494.425, which sets forth instances in which
person are ineligible from serving on juries due to age, citizenship, residency, prior felony
convictions, certain mental or physical limitations or infirmities, active service in the armed
forces, and being a judge in a court of record. The principal opinion expresses concern that
failure to disqualify individuals under section 494.425 automatically would result in
reversal if this Court adopted my position regarding section 494.470.1. However, the
rationale underlying disqualification under 494.470.1 is based on centuries-old precedent
specifically addressing the unique relationship kinfolk have with one another such that bias
and prejudice resulting from that relationship are presumed as will be discussed below.
Hence, this rationale has no logical application to the individuals disqualified under section
494.425.
6
“prosecuting attorney” refers to any attorney representing the state who participated in the
prosecution of the case.
The principal opinion declines to address this issue or Brandolese’s arguments that
his fundamental right to a fair and impartial jury was violated. Instead, the principa l
opinion focuses on whether Brandolese could demonstrate Juror No. 16’s participatio n
resulted in a manifest injustice. The principal opinion’s analysis puts the proverbial cart
before the horse. The simple fact Juror No. 16 was allowed to participate as a member of
the jury, and whatever influence she may have brought to bear during deliberations, is the
error, not whether the jury’s verdict was manifestly unjust.
Construing section 494.470.1’s plain language reveals the patently absurd result that
occurs in adopting the state’s position and condoning Juror No. 16’s participation in this
matter. Had Farkas remained the attorney of record and Juror No. 16 was on the
venirepanel, the principal opinion would condone her sitting in judgment in the absence of
a showing she was biased or prejudiced. Hence, I feel it is important to analyze
section 494.470.1 to further demonstrate the flaws in the principal opinion’s manifes t
injustice rationale.
The state seeks to narrow the definition of prosecuting attorney to refer to the
attorney’s position as the elected prosecuting attorney of the county in which a defendant’s
trial takes place. The state supports its construction by citing several provisions in
chapter 56, which regulates the election, qualification, conduct, salary, and retireme nt
benefits of the elected prosecuting attorney and any appointed assistant prosecuting
attorney. The state also relies on section 56.060.1, which confers upon the elected
7
prosecuting attorney the power to commence and prosecute all civil and criminal cases
within his or her county. The state argues, because the elected prosecuting attorney is the
only individual authorized to commence a criminal cause, this is the only way to construe
“prosecuting attorney” in section 494.470.1.
The legislature needs to delineate between elected and assistant prosecuting
attorneys when conferring these duties, powers, and compensation. However, this
delineation is not intended to employ chapter 56’s statutory distinctions to eviscerate a
defendant’s fundamental, constitutional right to a fair and impartial jury when
disqualifying a prosecuting attorney’s kin from jury service. This narrow reading also
ignores the unique role the elected prosecuting attorney and his or her assistant prosecuting
attorneys play in the criminal justice system. “A prosecuting attorney is a quasi-judic ia l
officer entrusted and charged not only with the important responsibility to prosecute
vigorously and fearlessly in behalf of the state but also with the no less positive obligatio n
to see that every defendant so prosecuted nevertheless is accorded a fair trial.” State v.
Selle, 367 S.W.2d 522, 530 (Mo. 1963) (internal citation omitted). “Their duty is not to
seek convictions at any cost, but to see that justice is done and that defendants receive fair
and impartial trials.” State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 581 (Mo. banc
1994) (emphasis added). This Court recognized, “An assistant or deputy prosecuting
attorney legally appointed is generally clothed with all the powers and privileges of the
prosecuting attorney; and all acts done by him in that capacity must be regarded as if done
by the prosecuting attorney himself.” State ex rel. Nothum v. Walsh, 380 S.W.3d 557, 565
n.9 (Mo. banc 2012) (quoting State v. Falbo, 333 S.W.2d 279, 284 (Mo. banc 1960)).
8
Moreover, limiting the meaning of prosecuting attorney to the elected prosecuting
attorney would render the words “in the same cause” meaningless because the elected
prosecuting attorney participates in every criminal cause by virtue of his or her charging
power. It cannot be stated strongly enough that, under this faulty logic, had Farkas
remained the assistant prosecuting attorney assigned to try Brandolese’s case when it went
to trial, the state believes Juror No. 16 would be qualified to serve on the jury despite her
kinship with Farkas because Farkas was not the elected prosecuting attorney. Construing
the statute in this manner defeats the legislature’s purpose in enacting section 494.470.1,
which this Court has acknowledged as securing fair and unprejudiced jurors who are
disinterested in the cause. Stewart, 246 S.W at 938. To read section 494.470.1 as splitting
hairs between whether kin of elected or assistant prosecuting attorneys are qualified jurors
would fly in the face of federal and state constitutional imperatives requiring crimina l
defendants to be tried by an impartial jury.
Not only should a jury which hears a criminal case and which has great power
be impartial in fact, but also if we are to hold true our ideals and retain the
confidence of the community, the jury should also give every outward
appearance of impartiality.
State v. Carter, 544 S.W.2d 334, 338 (Mo. App. St. L. Dist. 1976) (quoting State v.
Holliman, 529 S.W.2d 932, 942 (Mo. App. St. L. Dist. 1975)).
The fair administration of justice and the avoidance of impropriety should compel
this Court to find the plain meaning of prosecuting attorney “in the same cause” includ es
the elected prosecuting attorney by virtue of his or her power to commence the
prosecution—in this case, Phillip Sawyer’s role in conducting the trial as the elected
9
prosecuting attorney—and assistant prosecuting attorneys who otherwise participate “in
the same cause.” This reading gives effect to all the words within the statute without
adding any additional language to qualify “prosecuting attorney.” It effectuates the
purpose of the statute by prohibiting kin of these participants who have an interest in the
outcome of the litigation from serving as jurors. Most importantly, it safeguards a
defendant’s constitutional right to an impartial jury and avoids even the appearance of
impropriety.
By construing the entire statute, including the words “in the same cause,” this Court
would avoid the state’s other concern that Brandolese wishes to read section 494.470.1 to
strike the kin of all assistant prosecuting attorneys. Kin of any assistant prosecuting
attorney would not be disqualified automatically unless the assistant prosecuting attorney
participated “in the same cause.” Had Farkas never signed the complaint charging
Brandolese nor appeared on the state’s behalf during the pretrial proceedings, Juror No. 16
could be qualified to sit on Brandolese’s jury if it were shown she could be fair and
impartial. However, because Farkas was a prosecuting attorney “in the same cause” by
virtue of signing the complaint and appearing at three pretrial hearings on the state’s behalf,
I maintain Juror No. 16 was disqualified from serving on Brandolese’s jury under
section 494.470.1.
Inquiry into Bias, Prejudice, or Partiality
To support its finding Brandolese did not demonstrate a manifest injustice occurred,
the principal opinion essentially finds that, even if section 494.470.1 is construed to include
disqualifying assistant prosecuting attorneys’ kin, Brandolese’s claim still fails because he
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did not inquire whether Juror No. 16’s kinship with Farkas would affect her ability to be
fair or impartial. The principal opinion repeatedly faults Brandolese for failing to develop
a record Juror No. 16 was biased and partial due to her relationship to Farkas. Hence, not
only does the principal opinion require Brandolese to demonstrate plain error and resulting
manifest injustice, which is burdensome under ordinary circumstances, but the principa l
opinion constructs additional hurdles the legislature never contemplated. Hence,
Brandolese’s and every defendant’s burden is raised to an even higher standard than legally
required. Moreover, the principal opinion repeatedly conflates section 494.470.1’s
language disqualifying Juror No. 16 as a competent juror because she is kin to Farkas with
questioning a potentially qualified juror about the ability to be a fair and impartial juror
generally and striking that juror due to bias.
It is inconsequential the record contains no evidence of Brandolese questioning
Juror No. 16 about any potential bias because section 494.470.1 does not require
Brandolese to question or otherwise demonstrate Juror No. 16 could not be fair or impartia l
before she could be struck for cause. Section 494.470.1’s plain language requires
disqualification as a matter of law based on the juror’s kinship with a prosecuting attorney,
not merely in those instances where the juror’s bias or partiality can be demonstrated.
The principal opinion’s declaration that this Court cannot presume bias or prejudice
in the absence of Juror No. 16’s actual knowledge her brother participated in Brandolese ’s
prosecution is wholly unsupported by centuries of caselaw. In Thomas, this Court
discussed the history and underlying rationale for section 494.470.1’s predecessor statutes.
This Court recognized, “‘The rule seems to be settled that under the common law a juror
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was disqualified if related to either of the parties [by] … consanguinity or affinity...; and
that this was a ground of ‘principal’ challenge that is, of challenge on the ground of
presumptive prejudice alone, without any showing of actual prejudice.” Thomas, 174
S.W.2d at 340.
The common law theory of such principal challenges was that the fact of
relationship spoke for itself without proof of actual prejudice, ‘for that’ as
Lord Coke put it, ‘the law presumeth that one kinsman doth favor another
before a stranger’; or, as one decision says, because ‘blood is thicker than
water.
Id. at 341-42 (internal footnote omitted). Thomas cited Sir William Blackstone ’s
commentary that jurors could be challenged for bias or partiality, and “[a] principa l
challenge is such, where the cause assigned carries with it prima facie evident marks of
suspicion, either of malice or [favor]: as, that a juror is of kin to either party within the
ninth degree ….” 3 Sir William Blackstone, Commentaries on the Laws of England *363
(Lewis Ed. 1767). Bias has been implied to relatives of trial participants for centuries.
Notably, in United States v. Burr, 25 F. Cas. 49, 50 (D. Va. 1807), Chief Justice John
Marshall asked, “Why is it that the most distant relative of a party cannot serve upon his
jury?” Chief Justice Marshall concluded “the law suspects the relative of partiality;
suspects his mind to be under a bias, which will prevent his fairly hearing and fairly
deciding on the testimony which may be offered to him.” Id. Hence, “[i]t is a universa l
rule that the relationship of a juror to one of the parties in a lawsuit disqualifies the juror.
The question of whether he [or she] is biased or prejudiced is of no concern.” State v.
Miller, 56 S.W.2d 92, 96 (Mo. 1932) (emphasis added); see also State v. Chandler, 314
S.W.2d 897, 900 (Mo. 1958) (“In a proper case on timely objection a juror within the
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prohibited relationship should be excluded on the ground of presumptive prejudice which
is the basis of the prohibitory statute.”). Accordingly, the presumptive prejudice or bias of
a juror who is kin to a prosecuting attorney does not turn on whether the defendant
preserved the issue for appeal. The prejudice is inherent from the kinship between the juror
and the prosecuting attorney, which automatically disqualifies the juror from serving in the
same cause because it violates a defendant’s substantive, constitutional right to a fair and
impartial jury.
This general principle has been recognized when applying Sixth Amendme nt
protections to the defendant’s right to an impartial jury as well:
[I]n certain instances a hearing [or questioning] may be inadequate for
uncovering a juror’s biases, leaving serious question whether the trial court
had subjected the defendant to manifestly unjust procedures resulting in a
miscarriage of justice. While each case must turn on its own facts, there
are some extreme situations that would justify a finding of implied bias.
Some examples might include … that the juror is a close relative of one of
the participants in the trial ….
Smith v. Phillips, 455 U.S. 209, 222, 102 S. Ct. 940, 948, 71 L. Ed. 2d 78 (1982)
(O’Connor, J., concurring) (emphasis added); see also Dyer v. Calderon, 151 F.3d 970,
984-85 (9th Cir. 1998) (discussing this country’s extensive history of recognizing
presumed juror bias in which prejudice must “be inferred from [a] juror’s relationships ”) ;
United States v. Mitchell, 690 F.3d 137, 145 (3d Cir. 2012) (recognizing “[i]t is well settled
that the Sixth Amendment, like the common law, under some circumstances presumes bias
when the relative of a party in a case serves on his or her jury in a criminal trial. Indeed,
consanguinity is the classic example of implied bias.”) (internal citations and footnote
omitted) (emphasis added)).
13
The principal opinion wishes to place a prosecuting attorney’s kin on equal footing
with mere acquaintances or jurors who have no familial connection to any party, despite
the statute’s clear, unequivocal intent to disqualify kinship jurors from being seated. This
position is not supported by caselaw, especially when contrasted with cases in which jurors
who had a non-kinship relationship with a prosecuting attorney were questioned to
determine whether they possessed bias resulting from that relationship. See State v.
Shoemaker, 183 S.W. 322, 324 (Mo. 1916) (juror who was “well acquainted with the
prosecuting attorney and his assistants” qualified to serve after stating “he would try the
case fairly according to the law and evidence”); State v. Grant, 394 S.W.2d 285, 289 (Mo.
1965) (lifelong friend and former client of prosecuting attorney questioned regarding the
ability to be fair and impartial); State v. Arnette, 686 S.W.2d 4, 8 (Mo. App. W.D. 1984)
(acquaintances of county prosecuting attorney gave unequivocal answers and demonstra ted
no bias).
The principal opinion treats Juror No. 16 as though she is an ordinary juror, whom
a defendant must demonstrate is biased before being struck, and requires this Court to
presume the seated juror followed the circuit court’s instructions to be fair and impartia l.
However, Juror No. 16 is not an ordinary juror. She is the sister of an assistant prosecuting
attorney who actively participated in this case; therefore, pursuant to section 494.470.1,
she was required to be disqualified. What seems to be wholly lost on the principal opinio n
is that pursuant to section 494.470.1, she should not have been seated; therefore, whether
she followed the circuit court’s instructions is irrelevant. Contrary to the principa l
opinion’s assertion, neither the statute nor caselaw requires Brandolese to question
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Juror No. 16 regarding the quality of her relationship with Farkas or whether she could be
fair and impartial before requesting she be struck for cause or before demonstrating a
manifest injustice occurred.
Knowledge of the Juror and the Circuit Court
The principal opinion also finds Brandolese cannot demonstrate manifest injustice
because he did not show or allege Juror No. 16 was aware of Farkas’ participation in the
pretrial proceedings. Again, the principal opinion ignores the statute’s plain langua ge,
which does not premise kinship disqualification on knowledge of a relative’s participatio n
in the cause, only knowledge they are kin to a prosecuting attorney. Cf. Stewart, 246 S.W.
at 939-40 (holding no error in failing to disqualify a juror who was unaware he was
distantly related to the victim); Miller, 56 S.W.2d at 96 (holding if “it is conclusively shown
that a juror, so related, did not learn of such [familial] relationship until after verdict, there
is no good reason why a new trial should be granted. A juror cannot be prejudiced by a
fact unknown to him.”) (emphasis added). Further, the principal opinion mischaracter izes
the holdings in Miller and Chandler to support its argument Juror No. 16 could not be
biased or prejudiced because she had no knowledge of Farkas’ participation in the case.
Miller and Chandler focus on the juror’s knowledge of the kinship relationship, not
knowledge their kin participated in a particular case to find prejudice.
I believe the same reasoning applies to principal opinion’s assertion the circuit court
may not have been aware of Farkas’ participation in the early stages of Brandolese’s case.
The circuit court is presumed to know the law regarding section 494.470.1’s
disqualification provision. Amick, 462 S.W.3d at 415. Brandolese developed a record
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Juror No. 16 was Farkas’ sister, Farkas was an assistant prosecuting attorney, and the
docket entries confirm Farkas’ appearance on the state’s behalf at three hearing dates in
the early stages of the prosecution. This case “illustrates the wisdom of trial judges erring
on the side of caution in ruling on challenges for cause in criminal cases where a
replacement can be easily obtained for a prospective juror of doubtful qualifications.” State
v. Stewart, 692 S.W.2d 295, 299 (Mo. banc 1985). 5
Manifest Injustice Occurred
I believe the circuit court’s failure to sustain Brandolese’s challenge to strike for
cause Juror No. 16 violated section 494.470.1 and amounted to error that was evident,
obvious, and clear. I further assert Brandolese demonstrated a manifest injustice occurred
warranting relief under Rule 30.20.
In Missouri, “[f]ailure to strike an unfit juror is structural error ….” Dorsey v. State,
448 S.W.3d 276, 299 (Mo. banc 2014). In Weaver v. Massachusetts, --- U.S. ---, 137 S. Ct.
1899, 198 L. Ed. 2d 420 (2017), the United States Supreme Court clarified the structura l
error doctrine, explaining:
The purpose of the structural error doctrine is to ensure insistence on certain
basic, constitutional guarantees that should define the framework of any
criminal trial. Thus, the defining feature of a structural error is that it
‘affect[s] the framework within which the trial proceeds,’ rather than being
‘simply an error in the trial process itself.’ For the same reason, a structura l
error ‘def[ies] analysis by harmless error standards.’
5 Given the small legal community in Pettis County with only one circuit judge, I find it
disingenuous to continue to assert the state and circuit court were unaware of Farkas’
participation in this case without Brandolese bringing the docket sheets to the circuit
court’s attention. Moreover, Sawyer, the elected prosecuting attorney who tried this case,
surely reviewed the case file when preparing for trial and became aware which of his
assistant prosecuting attorneys previously worked on the case.
16
Id. at 1907-08 (alterations in original) (quoting Arizona v. Fulminante, 499 U.S. 279, 309-
310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)); see also State v. Strong, 263 S.W.3d 636,
647 (Mo. banc 2008). The United States Supreme Court recognized there are “at least
three broad rationales” for the structural error doctrine, which include:
First, an error has been deemed structural in some instances if the right at
issue is not designed to protect the defendant from erroneous conviction but
instead protects some other interest[;] …. [s]econd, an error has been deemed
structural if the effects of the error are simply too hard to measure[;] …. [and]
[t]hird, an error has been deemed structural if the error always results in
fundamental unfairness.
Weaver, 137 S. Ct. at 1908. In Strong, this Court found,
Without these basic protections, a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or innocence, and no crimina l
punishment may be regarded as fundamentally fair. One such structura l
defect is the trial by an adjudicator who is not impartial. Therefore, where a
criminal defendant is deprived of the right to a fair and impartial jury,
prejudice therefrom is presumed.
Strong, 263 S.W.3d at 647 (internal citations and quotations to Fulminante omitted)
(emphasis added).
When determining the remedy for structural error, the United State Supreme Court
took into account the nature of the error, when or if an objection was raised, and at what
point during the post-trial proceedings the error was raised. Weaver, 137 S. Ct. at 1910-
12. Weaver affirmed when “there is an objection at trial and the issue is raised on direct
appeal, the defendant generally is entitled to ‘automatic reversal’ regardless of the error’s
actual ‘effect on the outcome.’” Id. at 1910 (quoting Neder v. United States, 527 U.S. 1,
7, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). However, when the error is unpreserved and
17
raised on collateral attack, such as in a post-conviction relief proceeding, the defendant
must demonstrate prejudice because the United States Supreme Court was concerned with
“the systemic costs of remedying the error” at a time in which “[t]he finality interest is
more at risk.” Id. at 1912.
The United States Supreme Court has not, however, resolved whether unpreserved
structural errors automatically satisfy the requirement of plain error review that the error
resulted in prejudice. Rather, the Supreme “Court has several times declined to resolve
whether ‘structural’ errors—those that affect ‘the framework within which the trial
proceeds,’ automatically satisfy the third prong of the plain-error test. 6 Puckett v. United
States, 556 U.S. 129, 140-41, 129 S. Ct. 1423, 1429, 173 L.Ed.29 266 (2009) (interna l
citation omitted) (quoting Fulminante, 499 U.S. at 310). Hence, the United States Supreme
Court expressly reserved the question of whether structural error automatically satisfies the
prejudice requirement for plain error review. 7
6 The third prong of the federal plain error test is whether the plain error “affected the
appellant’s substantial rights, which in the ordinary case means he [or she] must
demonstrate that it ‘affected the outcome of the district court proceedings.’” Puckett, 556
U.S. at 135 (quoting United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123
L. Ed. 2d 508 (1993)).
7 Weaver involved a defendant who did not object to his trial being closed to the public
during voir dire, during the trial, or on direct appeal, but instead, raised defense counsel’s
failure to object as an ineffective assistance of counsel claim. Weaver, 137 S. Ct. at 1905.
In finding the defendant had to demonstrate prejudice for this structural error, the United
States Supreme Court expressed concerns with sandbagging and the circuit court’s
inability to remedy the error at the time it occurred or after direct appeal. Id. at 1912. It
bears repeating that, in this case, Brandolese made a contemporaneous objection with the
circuit court about his challenge to Juror No. 16 sitting on the jury before the jury was
seated and raised this issue on direct appeal, which alleviates the United States Supreme
Court’s reservations.
18
The principal opinion seeks to expand Brandolese’s burden to show a manifes t
injustice occurred when challenging the failure to strike a juror under section 494.470.1 to
demonstrate bias or partiality of the juror being challenged. Setting aside the fact failing
to strike an unfit juror constitutes structural error, the principal opinion cites no caselaw
requiring a defendant to overcome these additional burdens. The principal opinion is
unable to do so because section 494.470.1’s plain language does not require a
demonstration of bias or partiality to obtain relief.
In In the Matter of the Care and Treatment of Braddy, 559 S.W.3d 905, 916
(Mo. banc 2018), the defendant moved to strike a juror for cause who possibly displayed
bias, the strike was overruled, and the defendant failed to preserve the issue. This Court
held the failure to strike the juror “did not result in a manifest injustice as he was not shown
to be unqualified under either section 494.470.1 or section 494.470.2.” Id. (emphas is
added). The implication in Braddy is that if the defendant had demonstra ted
disqualification under section 494.470.1, as Brandolese has done, this Court would have
found a manifest injustice occurred.
Hence, I contend the circuit court’s failure to strike Juror No. 16 constituted
reversible error resulting in a manifest injustice. Brandolese was deprived of his
fundamental, constitutional right to a fair and impartial jury because a disqualified juror
sat in judgment of his case. I would reverse the circuit court’s judgment and remand the
cause for a new trial.
_______________________________
GEORGE W. DRAPER III, CHIEF JUSTICE
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