DERWINN LADELL COLE, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent. , 2016 Mo. App. LEXIS 738 ( 2016 )

DERWINN LADELL COLE, )
)
Movant-Appellant, )
)
vs. ) No. SD34163
)
STATE OF MISSOURI, ) Filed: July 28, 2016
)
Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable David C. Jones, Circuit Judge
AFFIRMED
Derwinn Ladell Cole (“Movant”) brings a claim that his trial counsel was ineffective for
failing to request a mistrial during voir dire when a venireperson claimed to have already
formulated a guilty verdict because of his familiarity with the incident. The motion court found:
A review of the transcript in this matter does not reveal that such a motion
was made. However, at the hearing, [trial counsel] testified that he believes that he
did make such a motion for mistrial after the prospective juror made the comment
in question. He further went on to testify that he could think of no reason why he
would not have made such a motion and noted that his trial notes shows [sic] such
a motion being made. However, [trial counsel] was at a loss to explain why the
record is devoid of such a request other than to note that the trial judge [in] this
matter oftentimes did things “differently” and that this conversation might have
been held with the Court when the Court Reporter was not recording the
proceedings. This result is a likely possibility since conversations outside of the
presence of the jury were oftentimes held by that trial judge in an outer hallway due
to space limitations in the Courtroom and that the Court Reporter might not have
been present during those conversations.
[Trial counsel] also testified that he renewed that motion following trial but
that the motion was denied summarily by the Court. On appeal, the issue of the
juror’s comments was not raised.
[Movant] did not rebut counsel’s recollection of events and this Court finds
that it [was] highly likely, given the totality of the circumstances including
counsel’s trial notes, that counsel did make such a motion during trial and that it
was denied by the trial court.
The Court would note that the prospective juror was stricken from the panel
after the comment was made. As such, that juror never served on the panel that
eventually convicted [Movant].
Moreover, the comments were not of such a nature as to require dismissal
of the entire panel. Thus, even if counsel did not move for a mistrial, the comments
made by the prospective juror were not of such a nature to require a mistrial and
dismissal of the entire panel. Rather, the action taken in striking the juror for cause
was a sufficient remedy. See, Riley v. State, 2014 WL 5839845 (Mo. App. E.D.
2014).
We review the denial of Movant’s postconviction motion to determine whether the
findings of fact and conclusions of law are clearly erroneous, that is, only if, after a review of the
entire record, we are left with the definite and firm impression that a mistake has been made.
Woods v. State, 176 S.W.3d 711, 712 (Mo. banc 2005). We are not left with a firm conviction
that a mistake has been made. Each of the grounds as stated by the motion court is supported by
the record. First, trial counsel testified that he did request a mistrial and was at a loss to explain
why it was not in the record. Second, the motion court confirmed that it was highly likely that
because of crowded conditions, some motions were taken up outside the presence of the court
reporter. Third, even if the motion had not been made, a potential juror stating that he could not
be fair because of his personal relationship with potential witnesses is exactly the reason that
there is voir dire questioning. It is necessary to weed out people who have declared an inability
to be fair and impartial. No extraneous information was imparted to the panel that tainted the
entire panel. This venireperson, after this remark, was struck for cause from the panel. For all of
these reasons, we are not left with a firm conviction that a mistake was made.
The judgment is affirmed.
Nancy Steffen Rahmeyer, J. - Opinion Author
Daniel E. Scott, J. - Concurs
William F. Francis, Jr., J. - Concurs