State of Missouri v. Tyron L. Skinner

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
)
Respondent, )
)
vs. ) WD78006
)
TYRON L. SKINNER, ) Opinion filed: May 3, 2016
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
THE HONORABLE BRYAN ROUND, JUDGE
Before Division Two: Victor C. Howard, Presiding Judge,
Thomas H. Newton, Judge and Karen King Mitchell, Judge
Tyron Skinner appeals his conviction following a jury trial of one count of unlawful use
of a weapon and one count of armed criminal action, for which he was sentenced to a total of
fifteen years in prison. Skinner argues that the trial court plainly erred in failing to sua sponte
prevent one of the members of the venire panel from serving as a juror because she allegedly
“said that she could not be fair and impartial based upon her personal experiences.” Skinner also
contends that the trial court erred in sentencing him as a prior and persistent offender because
there was only sufficient evidence to find he was a prior offender. The convictions are affirmed
but the judgment is remanded to the trial court for the sole purpose of entering a nunc pro tunc
order to correct the written judgment so as to reflect the sentencing imposed by the trial court for
Skinner’s conviction for unlawful use of a weapon and armed criminal action as a prior offender.
The shooting incident for which Skinner was convicted happened on May 5, 2013.
Approximately one week prior to that date, Michael Buie was at a barbecue at his aunt’s home
when Tenisha Marshall and Skinner, who was nicknamed “Ron Ron,” arrived. They were told
they were not welcome. Ms. Marshall was cussing and yelling at Mr. Buie, and there was some
verbal fighting between Mr. Buie and Skinner, whom Mr. Buie had not seen before. Skinner
wanted to fight Mr. Buie, but was restrained, and shortly thereafter, the couple left the barbecue.
Later that week, the Saturday night prior to the shooting, Mr. Buie saw Skinner in the
Power and Light District, and Skinner approached him and told him he had been looking for him.
Skinner then “squared off” with Mr. Buie, started swinging, and Mr. Buie fought back. Mr.
Buie’s head was injured during the fight, but he “got the better” of Skinner.
The next morning, Mr. Buie’s wife, Ericka Buie, heard shots being fired. She and Mr.
Buie were in their home at the time, and just after the shooting stopped she looked out the
window and saw Skinner running down the block and saw no one else around. Mr. Buie, whom
Ms. Buie had awakened during the shooting, heard gunshots striking vehicles and ran to the
door. The shooting lasted about ten to fifteen seconds and had stopped by the time Mr. Buie
reached the door. Mr. Buie saw a man running down the street and cutting through the
neighbor’s yard. Although he could not see the man’s face, he recognized that it was Skinner.
Mr. Buie returned to the house and found a bullet had hit the house. Both Mr. and Ms. Buie
identified Skinner in a photo lineup, as well as at trial, as the person they saw that morning
running away just after the shooting.
The Buies’ neighbor, Teresa Harris, also heard shots on the morning of the shooting and
saw a man in the street with a gun in his hand. Another neighbor, Cesar Sagastume, was helping
Ms. Harris with some home repairs that morning and also heard several shots, then went to the
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front door and opened it, at which time he saw Skinner running down the street trying to put a
chrome handgun with a black handle in his pants. Mr. Sagastume saw no one else in the street.
Mr. Sagastume identified Skinner in a photo lineup and at trial as the person he saw with a gun
running down the street that morning.
The police arrived quickly after the shooting, and witnesses in the area told an officer that
someone by the name of “Ron Ron” had shot at their house and had left the area in a gold
Chevrolet Impala. The officer found thirteen shell casings nearby and further investigation
revealed that numerous bullets had struck a vehicle and the Buies’ house. Bullet fragments were
found inside the house and in a vehicle.
Skinner was charged as a prior offender with one count of felony unlawful use of a
weapon for discharging a firearm at a habitable structure and one count of armed criminal action
for the shooting incident. The court found Skinner was a prior offender and he was tried by a
jury in April of 2014. Skinner was found guilty on both counts and the court sentenced him to
fifteen years in prison. This appeal by Skinner followed.
Skinner requests plain error review in his first point, arguing that the trial court’s failure
to sua sponte prevent one of the members of the venire panel (“Venireperson 9”) from serving as
a juror because she allegedly “said that she could not be fair and impartial based upon her
personal experiences,” which resulted in the manifest injustice of his not being convicted by an
impartial jury.
The prosecutor asked the jury panel during jury selection whether anyone had been the
victim of a violent crime or had a close friend or family member who had been. Venireperson 9
responded that her friend’s boyfriend was shot and that she had “a big issue with guns.” The
prosecutor continued questioning:
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[Prosecutor]: Okay, so that experience kind of tainted your feelings about
firearms, is that fair to say?
[Venireperson 9]: Very much so.
[Prosecutor]: Okay and the fact that there is an allegation of a firearm in this case-
[Venireperson 9]: I would want to know where it was gotten from and how it was
shot and everything.
[Prosecutor]: And you understand though that- we were just talking about the
elements of the crime and that is not going to be something that the State is
required to prove. Do you think that you would still be able to follow the
instructions of the judge and decide this case based solely on the evidence that
you’ve heard here in the court today or tomorrow?
[Venireperson 9]: I’m not sure about that
[Prosecutor]: So you can’t guarantee as you are sitting there that that wouldn’t be
on your mind?
[Venireperson 9]: No, I would be thinking about it.
No other questions were asked of Venireperson 9 during jury selection. Venireperson 9 was not
struck for cause, nor did either side use a peremptory strike to remove her, and she served on the
jury.
Skinner’s failure to challenge Venireperson 9 for cause results in a waiver of review.
State v. Wade, 467 S.W.3d 850, 856 (Mo. App. W.D. 2015). The requirement of
contemporaneous objections to the qualification of jurors is a well-founded rule that minimizes
“the incentive to sandbag in the hope of acquittal and, if unsuccessful, mount a post-conviction
attack on the jury selection process.” Id. (internal quotations omitted). Post-conviction
challenges to jury selection, therefore, are “highly suspect.” Id.
Nevertheless, Skinner asks this court for plain error relief. “[P]lain errors affecting
substantial rights may be considered in the discretion of the court when the court finds that
manifest injustice or miscarriage of justice has resulted therefrom.” Rule 30.20. Not all
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prejudicial error is plain error, however; to rise to the level of plain error, an error must be
“evident, obvious, and clear.” Wade, 467 S.W.3d at 856.
We find no basis for plain error relief here. “Missouri courts have consistently held that a
trial court is under no duty to remove any venire member sua sponte.” State v. Eberius, 184
S.W.3d 582, 585 (Mo. App. S.D. 2006). Where the trial court is under no duty to strike a venire
member on its own motion, there is no evident, obvious, or clear error, and therefore no plain
error. State v. Baumruk, 280 S.W.3d 600, 616 (Mo. banc 2009). Because there is no plain error,
this Court need not proceed to the second step of determining “whether the claimed error
resulted in manifest injustice or a miscarriage of justice.” Id. (quoting State v. Scurlock, 998
S.W.2d 578, 586 (Mo. App. W.D. 1999).
Even undertaking the evaluation for a manifest injustice or miscarriage for the sake of
argument, we would find none here. Venireperson 9 did not state that she could not be fair and
impartial. She arguably equivocated about her ability to place her desire to know more about the
gun and its origins and use out of her mind and base her evaluation of the case solely on the
evidence presented and instructions given. This equivocation is insufficiently clear as to how it
might have affected her decision and whether that effect would give rise to a manifest injustice
or miscarriage of justice. Furthermore, her statements on the entire record do not make apparent
whether, if she was in fact biased, whom that bias would disfavor: whether her lack of
knowledge about the gun's origin and use would cause her to be biased against the defendant for
being charged with a gun crime or against the prosecution for not putting on evidence to clarify
these facts. Moreover, in response to another line of questioning during voir dire, Venireperson
9 stated that she had a “pretty bad experience with the police a while back” although she also
said she would not hold it against any police officers who would potentially testify in the case.
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This creates additional uncertainty as to whether any potential bias held by Venireperson 9
would benefit the State or Skinner.
Because we find no plain error and no manifest injustice or miscarriage of justice,
Skinner’s first point is denied.
The rejection of Skinner’s first point on appeal does not, however, end our consideration
of this case. As previously related, Skinner was charged as a prior offender. The trial court
found that Skinner was a prior offender and announced that it was sentencing him accordingly.
However, the written judgment and sentence fails to reflect that finding, and instead reflects his
sentencing as a prior and persistent offender. The failure to memorialize accurately the decision
of the trial court as it was announced in open court was clearly a clerical error. “Rule 29.12
permits a trial court to correct such clerical errors in the judgment that obviously are a result of
oversight or omission.” State v. Taylor, 123 S.W.3d 924, 931 (Mo. App. S.D. 2004) (quoting
State v. Booyer, 87 S.W.3d 926, 931 (Mo. App. S.D. 2002)). We affirm the conviction and
sentence, but remand this case with instructions to the trial court to enter a written judgment
reflecting the judgment and sentence as announced by the trial judge in open court.
__________________________________________
VICTOR C. HOWARD, JUDGE
All concur.
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