STATE OF MISSOURI, Respondent-Respondent v. SCOTT A. REMSTER , 567 S.W.3d 306 ( 2019 )

STATE OF MISSOURI, )
)
Respondent-Respondent, )
)
v. ) No. SD35317
)
SCOTT A. REMSTER, ) Filed: Feb. 19, 2019
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable David C. Jones
AFFIRMED
Scott A. Remster (“Defendant”) appeals his convictions for assault in the first
degree, see section 565.050, assault in the fourth degree, see section 565.056, and armed
criminal action, see section 571.015.1 In three points on appeal, Defendant claims the trial
court erred in limiting his voir dire to one hour and excluding evidence of a victim’s
(“Victim”) plea deal and bond conditions in a criminal case the State had brought against
Victim. Finding no merit in these claims, we affirm.
1
Unless otherwise indicated, all statutory references are to RSMo 2016.
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Evidence
“We here recite the evidence as viewed in the light most favorable to the jury’s
verdict and give the State the benefit of all reasonable inferences that may be drawn from
that evidence.” State v. Bookwalter, 326 S.W.3d 530, 531 (Mo. App. S.D. 2010).
Defendant was charged in Greene County as a persistent felony offender with two counts of
the class B felony of assault in the first degree, and two counts of armed criminal action.
The charges stemmed from actions that occurred on May 1, 2017, at Ron’s Last Call
(“Ron’s”), a Springfield bar owned by Ron Dean (“Mr. Dean”). In addition to Defendant,
Victim, and Mr. Dean, others present at Ron’s that day included Joanna Jacob, Jeannine
Estes and Chris Lowe.
The incident started with Defendant and Victim verbally arguing about Defendant’s
attitude, culminating with Victim telling Defendant, “[R]ight there is the door. . . . You can
hit it[.]” When Defendant got off his bar stool, Mr. Dean went and stood between the two in
an attempt to de-escalate the situation. Mr. Dean asked Victim to remain seated and asked
Defendant to “sit back down and ‘[l]et’s just cool off and everybody, you know, have a good
time,’ and [Defendant] wasn’t having any of it.”
When Defendant gave Victim what “was more or less an invitation to prove his
manhood[,]” a comment Mr. Dean took to mean “an invitation to a physical altercation[,]”
Defendant continued trying to get Victim to fight him, and Mr. Dean asked Defendant to
leave. As Defendant was leaving, he continued his attempts to get Victim to come outside
and fight him. Mr. Dean followed Defendant outside and Defendant
kept mouthing and asking [Victim] to come out, and I told [Defendant], “Get
the hell off my property. It’s time for you to go.” And he pulled a knife, and
pardon my language, but he said, “I’ll fuck you up, buttercup,” and swung at
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me a couple of times. I retreated and pushed the barstool towards him, and
he kept coming on back into the building.
At that point, Victim intervened to protect Mr. Dean, and Defendant slashed at Victim with
the knife, inflicting multiple wounds.
The jury found Defendant guilty of assault in the first degree and armed criminal
action for his attack on Victim. It also found Defendant guilty of assault in the fourth degree
for “stabbing at” Mr. Dean but not guilty of armed criminal action as to Mr. Dean. We will
recite additional evidence as necessary to address Defendant’s points.
Analysis
Point 1 – Time Limit on Voir Dire
In his first point on appeal, Defendant claims the trial court erred in limiting his voir
dire to one hour because the nature and severity of the charges required more time in which
to inquire of the panel, and the limitation prejudiced Defendant by preventing him from
questioning the potential jurors on a number of specific issues that may have revealed their
bias or prejudice.
We review a trial court’s rulings regarding the conduct of voir dire “only for an
abuse of discretion and ‘[a]n appellate court will find reversible error only where an abuse of
discretion is found and the defendant can demonstrate prejudice[.]’” State v. Baumruk, 280
S.W.3d 600, 614 (Mo. banc 2009) (quoting State v. Oates, 12 S.W.3d 307, 311 (Mo. banc
2000)). Defendant “has the burden of showing a ‘real probability’ that he was prejudiced by
the [alleged] abuse.” Baumruk, 280 S.W.3d at 614 (quoting Oates, 12 S.W.3d at 311).
“One aspect of ‘the guarantee of a defendant’s right to an impartial jury is an
adequate voir dire to identify unqualified jurors.’” State v. Clark, 981 S.W.2d 143, 146
(Mo. banc 1998) (quoting Morgan v. Illinois, 504 U.S. 719, 729 (1992)).
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The essential purpose of voir dire is to provide for the selection of a fair and
impartial jury through questions which permit the intelligent development of
facts which may form the basis of challenges for cause, and to learn such
facts as might be useful in intelligently executing peremptory challenges.
Pollard v. Whitener, 965 S.W.2d 281, 286 (Mo. App. W.D. 1998).
“While it is proper that ‘counsel should be allowed reasonable latitude in the
examination of prospective jurors, there are limits to the scope of permissible examination.’”
Id. (quoting State v. Norton, 681 S.W.2d 497, 498 (Mo. App. E.D. 1984)). “The right to
question the jury panel is not absolute as it ‘is hedged with restrictions to insure that the
inquiry is not perverted.’” Pollard, 965 S.W.2d at 286 (quoting Littell v. Bi-State Transit
Dev. Agency, 423 S.W.2d 34, 37 (Mo. App. St.L.D. 1967)). “However, the voir dire process
‘is also one of the highest duties of courts, in the administration of the law concerning
selection of jurors and juries, to seek to accomplish that purpose [of an impartial jury].”
Pollard, 965 S.W.2d at 286 (quoting Littell, 423 S.W.2d at 38).
During an October 19, 2017 hearing on pretrial motions, four days prior to trial, the
trial court announced that it would first conduct its own voir dire, then allow both sides no
more than one hour each to ask any additional questions of the panel. Defendant objected to
the announced time limitation because “[t]his [charge] is an assault first” and he would for
that reason like more latitude in conducting voir dire. The trial court responded: “[y]ou
have an hour.” The trial court stated that it was “not trying to limit . . . opportunities to
select a jury[,]” but it had found that imposing the time limit had “sped up the process” in
prior cases. When Defendant said he would like two hours, the trial court responded, “[f]or
now, I’m going to deny that request. You can certainly renew it while we’re in the middle
of the voir dire if you feel like there’s some question left unanswered that needs to be
answered.”
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At trial, the trial court began voir dire and questioned the panelists about their ability
to follow the court’s instructions, including the presumption of innocence; whether anyone
knew or had a business relationship with the attorneys, Defendant, or court staff; prior jury
service; whether any panel member or their immediate family was in law enforcement; and
whether any panel member or their immediate family had been the victim of a crime or
convicted of a crime. The trial court’s questioning took approximately one hour. The State
and Defendant then took their respective one-hour turns at voir dire.
After the panel was removed from the courtroom, strikes for cause were made, ruled,
and acknowledged, and a resulting final composition of the jury to serve in the case was
announced by the trial court, then Defendant again objected to his one-hour time limit. At
that point he made a record of the questions and following topics that he claimed he had
wanted to explore but was unable to do so due to the trial court’s one-hour limit: question
panel members who did not speak; expand on panelists’ responses of fairness; ask about
connections to law enforcement or legal training; elaborate on the burden of proof; question
all panel members who raised their hands regarding self-defense; question panelists
regarding reasonable doubt; and question whether potential jurors “could resist bullying to
return a compromise verdict[.]”
Defendant claims that his pre-trial objections and his renewed objection after the jury
had been selected sufficiently preserved the claim of error such that an abuse of discretion
standard applies to the claim. Respondent counters that the claim is reviewable only for
plain error because prior decisions of this state have held that challenges to voir dire made
after strikes for cause come “too late.” Pollard, 965 S.W.2d at 291. We find it unnecessary
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to decide whether Defendant’s claim was adequately preserved because it fails even under a
review for abuse of discretion.
Defendant fails to cite any Missouri case supporting his assertion that a one-hour
time limit for a party’s voir dire is a per se abuse of discretion, and our independent research
has failed to reveal any such case. In upholding a 1:45 time limit on voir dire, the Pollard
opinion highlighted the fact that the limitation was not unexpected as the trial court had
twice warned the parties that the voir dire process was not unlimited. Id. at 287. In Pollard,
the plaintiff had questioned the panel for one hour when the court broke for a noon recess.
Id. at 284. At that time, the judge told the parties to expedite their questions and that she
wanted all voir dire completed by 2:30 that afternoon. Id. When court reconvened after the
noon recess, the judge informed the plaintiffs that their voir dire must conclude in 30
minutes. Id. While the Pollard decision did “not encourage fixed time limitations on
counsel’s examination” (nor do we), it noted that if the 30-minute warning had been given
before the noon recess, the problem might not have arisen because it would have “allowed
counsel more time in which to structure his voir dire examination to insure his questions
were asked within the time allotted.” Id. at 287.
Here, Defendant knew four days before trial that he would need to structure his voir
dire to make sure that he asked his most important questions first. Further, in contrast to
Pollard, Defendant had the benefit of an hour’s worth of answers from the panelists to
highly-relevant questions already asked by the trial court. Instead of prioritizing his voir
dire, Defendant spent his time asking -- in a case involving an assault with a knife --
whether any panel member was a member of a union or the National Rifle Association,
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whether anyone had a concealed carry permit, and whether anyone had a gun at home for
personal protection.
More importantly, the trial court told Defendant that he could renew his objection to
the time limitation during his voir dire if there were still unanswered questions that he
needed answers to. Instead of doing that, Defendant waited until after the jury had been
selected before indicating that he had wanted to ask additional questions. As in Pollard,
Defendant’s objection “after challenges for cause had been made and ruled upon, was too
late.” Id. at 291.
Finally, and most importantly, Defendant must show a “real probability” of
prejudice. Baumruk, 280 S.W.3d at 614 (quoting Oates, 12 S.W.3d at 311). His brief fails
to even argue, let alone demonstrate, why he was likely prejudiced by the one-hour time
limit imposed by the trial court, and we will not “act as an advocate by scouring the record
for facts to support Defendant’s contentions.” State v. Vitabile, 553 S.W.3d 429, 431 (Mo.
App. S.D. 2018) (quoting First State Bank of St. Charles v. American Family Mut. Ins.
Co., 277 S.W.3d 749, 752 (Mo. App. E.D. 2008)). Our conclusion is the same as in Pollard:
“[t]he time restriction, under the circumstances described, was not an abuse of discretion.”
965 S.W.2d at 288.
Point 1 is denied.
Points 2 and 3 – Exclusion of Evidence
Defendant’s second and third points claim, respectively, that the trial court erred to
his prejudice in excluding: (1) evidence of an alleged “plea bargain” Victim had with the
State in his own criminal case, and (2) a docket sheet (“Exhibit B”) setting forth bond
conditions applicable to Victim in that case. Defendant claims such evidence “established
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an interest or bias of [Victim] in having a possible motive to testify in favor of [the State
and] affected the credibility of his testimony[.]”
We review the exclusion of evidence “for prejudice, not mere error[.] Trial court
error is prejudicial if there is a reasonable probability that the court’s error affected the
outcome of the trial.” State v. Clark, 364 S.W.3d 540, 544 (Mo. banc 2012) (quoting State
v. Winfrey, 337 S.W.3d 1, 5 (Mo. banc 2011)) (internal quotations and citations omitted).
“[I]t is well-settled that ‘the interest or bias of a witness and his relation to or feeling
toward a party are never irrelevant matters.’” Mitchell v. Kardesch, 313 S.W.3d 667, 676
(Mo. banc 2010) (internal citations omitted). While bias is always relevant, the scope of the
evidence used to show bias is within the broad discretion of the trial court. State v. Bounds,
857 S.W.2d 474, 476 (Mo. App. E.D. 1993).
At the time of the assaults charged in the instant case, Victim was facing two felony
charges filed against him in 2015: driving while intoxicated (“DWI”) and driving while his
license was revoked. Exhibit B indicated that Victim “not . . . possess or consume alcohol
or be on premises of establishment where the primary item for sale is alcoholic beverages[.]”
Prior to Defendant’s trial, Victim resolved those charges by pleading guilty to a reduced
charge of a class B misdemeanor DWI, and the State dismissed the felony charge of driving
with a revoked license. The State did not seek to revoke Victim’s bond when it learned that
Defendant’s assault against Victim had occurred in a bar.
Prior to trial, the State filed a motion in limine to exclude the aforementioned
evidence. In response to that motion, the trial court directed the State to turn over “any
considerations afforded [Victim] in order to secure his testimony.” The State asserted that
there were no agreements with Victim and the State had no knowledge of any agreement not
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to seek to revoke Victim’s bond in exchange for his anticipated favorable testimony in
Defendant’s case. During the trial, the trial court allowed Defendant to make an offer of
proof by questioning Victim outside the presence of the jury about whether he had received
any deals from the State to reduce his charges and/or not seek to revoke his bond.
During the offer of proof, Victim testified that he neither received a plea deal nor had
any expectation of leniency in exchange for his testimony against Defendant. Regarding the
bond conditions in his DWI case alleging drug intoxication, Victim insisted that he was not
aware that he was required to refrain from visiting bars and drinking alcohol. After hearing
Victim’s offer of proof, the trial court found no “indication that [Victim]’s testimony was
being swayed because of some partiality towards the State.” The trial court allowed
Defendant to question Victim about his bond conditions at the time of the assault, but it
refused to allow Defendant to challenge Victim’s answer with extrinsic evidence via Exhibit
B.
Even assuming, arguendo, that the trial court erred in excluding the evidence
challenged in points 2 and 3, Defendant’s inability to demonstrate prejudice is fatal to his
claim. Victim, as the complaining witness in the case, “had a natural and inherent bias and
prejudice against [Defendant] as [his] assailant[.]” State v. Stewart, 615 S.W.2d 600, 605
(Mo. App. W.D. 1981). The State also covered Victim’s extensive criminal history during
its direct examination, which Victim admitted “goes back a ways[.]” Victim admitted to
approximately 22 convictions for misdemeanors and felonies beginning in 1991 for crimes
he committed in Michigan, Arkansas, and Missouri. Victim also testified that he had served
time in prison.
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On cross-examination, Defendant also questioned Victim about his “22 . . .
convictions . . . . [s]panning over 20 years . . . . [i]n three different states[,]” and he further
demonstrated inconsistencies between Victim’s deposition and trial testimony about those
convictions. In closing argument, Defendant argued that “[Victim], with his 22 criminal
convictions, hasn’t met a lie that he cannot tell.” Victim’s “admission of his prior
convictions accomplished the purpose of impeaching his credibility.” State v. Sanders, 634
S.W.2d 525, 527 (Mo. App. E.D. 1982).
Given that the jury had already heard much stronger evidence of Victim’s bias, self-
interest, and lack of credibility, Defendant has failed to demonstrate how the admission of
the excluded evidence would have changed the outcome of the trial.2 Points 2 and 3 are also
denied, and the judgment of the trial court is affirmed.
DON E. BURRELL, P.J. – Opinion Author
NANCY STEFFEN RAHMEYER, J. – Concurs in separate opinion
GARY W. LYNCH, J. – Concurs
2
As if all of this were not enough, the evidence of Defendant’s guilt was overwhelming. The crimes were
committed before multiple eyewitnesses, and they were also captured on a videotape that was played for the
jury.
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STATE OF MISSOURI, )
)
Respondent-Respondent, )
)
v. ) No. SD35317
)
SCOTT A. REMSTER, ) Filed: Feb. 19, 2019
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable David C. Jones
CONCURRING
I concur wholeheartedly in the majority opinion; I only write separately to express
my concerns about the time limitations of one hour placed on the attorneys’ ability to ask
questions in hopes of obtaining an impartial jury. When an arbitrary time frame is placed on
the voir dire, follow-up questions to the jury panel are discouraged. I do not believe the goal
of “speeding up the process” outweighs the importance of the real purpose of voir dire. For
the trial court to determine that its questioning in selecting impartial jurors is more efficient
almost proves the point. For many people, answering questions propounded by a judge as a
person of authority in a black robe is intimidating and discourages complete and honest
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answers. There is a huge power differential. I doubt you would get a thoughtful answer to
the question, “Is there anyone here who cannot follow the law and presume that the
defendant is innocent?” The potential juror cannot get into a discussion with the trial court
over what that question means. I do not contend that happened in this case, but I caution
trial courts to weigh seriously the need for speed versus the need for real process.
Nancy Steffen Rahmeyer, J. – Concurring Opinion Author
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