Morris v. Spencer

FENNER, Judge. Appellants, Janice and Larry Morris, appeal adverse judgments, after trial by jury, on their claims against respondent, Donald Spencer, M.D. Appellants had alleged that Dr. Spencer aggravated an injury to Janice Morris’ knee. In their sole point on appeal, appellants argue that the trial court erred in overruling their challenge, for cause, to two veni-repersons. Appellants complain that the trial court should have conducted an independent inquiry into the competency of the venirepersons in question to serve as jurors because they had personal and business relationships with Dr. Spencer. The decision to remove a venire-person for cause on a non-statutory basis is left to the sound discretion of the trial court and that decision is not to be overturned unless there is a clear and certain abuse of that discretion with any doubts resolved in favor of the trial judge’s discretion. Collins v. West Plains Memorial Hospital, 735 S.W.2d 404, 405 (Mo.App. 1987). Even though a juror has some business or personal relationship with a party, the trial court has broad discretion in determining the qualifications of such venireper-sons to sit as jurors and such discretionary rulings are not to be disturbed on appeal unless they are clearly and manifestly wrong. Id.1 The trial judge is in a far better position to make a determination as to the qualifications of a potential juror than an appellate court, as that determination necessarily involves a judgment of the demeanor of the venireperson. State v. Johnson, 721 S.W.2d 23, 29 (Mo.App.1986). However, when a venireperson makes an equivocal response an appellate court is justified in making a more thorough review of a challenged juror’s qualifications. Catlett v. Illinois Central Gulf Railroad [12] Company, 793 S.W.2d 351, 353 (Mo. banc 1990). In the case at bar, the responses of venirepersons Thornburg and Carson are called into question. The record reflects the following relevant exchanges during voir dire between counsel for appellant and venireperson Thornburg: COUNSEL: Okay, I believe it was — and you are? VENIREPERSON THORNBURG: Sandra Thornburg. COUNSEL: Okay. Ms. Thornburg, do you know Dr. Spencer? VENIREPERSON THORNBURG: Yes. He — I used to be a patient of his. COUNSEL: And, how long ago was that? VENIREPERSON THORNBURG: I haven’t seen him for fifteen years. COUNSEL: Okay. When you were a patient of his, what kind of medical problem did you have? VENIREPERSON THORNBURG: Back surgery. COUNSEL: Okay. Did that come out to your satisfaction? VENIREPERSON THORNBURG: Yes. COUNSEL: Okay. Were you generally pleased with the care that Dr. Spencer provided you? VENIREPERSON THORNBURG: Yes. COUNSEL: Having been treated by him in the past, 15 years ago, and knowing Dr. Spencer as a patient would know a doctor, do you think that that would affect your ability to stand in judgment of him since he’s being sued in this case today? VENIREPERSON THORNBURG: No. COUNSEL: Do you think you could be fair to both sides in the case even though you’ve known Dr. Spencer as a patient? VENIREPERSON THORNBURG: Yes. The pertinent questions by appellant’s counsel and answers by venireperson Carson were as follows: VENIREPERSON CARSON: I was a patient of Dr. Spencer. COUNSEL: And you are? VENIREPERSON CARSON: George Carson. COUNSEL: Mr. Carson, how long ago was that? VENIREPERSON CARSON: Nine years ago. COUNSEL: And what kind of medical problem did you have? VENIREPERSON CARSON: I had a work-related injury that he treated me for. COUNSEL: Did you choose him, or did your employer choose him? VENIREPERSON CARSON: I chose him. COUNSEL: Okay. Had you heard about him before you went to see him? VENIREPERSON CARSON: Yes. He’s been a friend of the family for a number of years. COUNSEL: Okay. So you’ve known of him before you went to see him as a doctor? VENIREPERSON CARSON: Yes I had. COUNSEL: Would you tell me a little bit how you — when you say he’s a friend of the family, would you tell me a little bit about that? VENIREPERSON CARSON: He went to school with my uncle, and there are several members of my family that have gone to him for treatment. COUNSEL: I take it then you think a lot of Dr. Spencer? VENIREPERSON CARSON: Yes, I do. COUNSEL: Having some feelings about Dr. Spencer, having been his patient and knowing him and his family for quite some time and he knowing your family, do you think that would have a tendency maybe, to the slightest degree even, affect your ability to hear the evidence in this case? VENIREPERSON CARSON: No, I don’t believe it would. COUNSEL: Put yourself in Janice and Larry Morris’ shoes, in the reverse role, do you think that you could do that and consider the evidence and still be fair to Larry and Janice Morris. [13] VENIREPERSON CARSON: Yes, I believe I could. [[Image here]] The following general questions were also asked during voir dire: COUNSEL [for appellant]: Is there anyone here who would be embarrassed, if the evidence warrants it, the evidence justifies it, who would be embarrassed to be a part of a verdict for plaintiff? Anybody here who would fall into that category, it would bother them if they were a part of a verdict that was for plaintiffs if the evidence supported it? (No responses.) COUNSEL [for respondent]: Now, you’ve heard a lot of questions, and some of them, although I said I wasn’t going to be repetitive I have to admit some of them probably were repetitive, but, and I think you understand that, why we’re asking you these questions is to get a feel for whether there’s any reason you wouldn’t be a fair and impartial juror in this case, just this case alone is all we’re worried about right now. And, if there’s any reason that any of you feel that we haven’t touched upon by any of our questions, that you would not be a fair and impartial juror to both sides, to Mr. and Mrs. Morris and to Dr. Spencer, now’s the time to let us know.... (No responses.) Counsel for appellant also asked the following question of venirepersons Thorn-burg, Carson and a third venireperson who had been a patient of Dr. Spencer: COUNSEL [for appellant]: I want to ask you three, because you all have been treated by him and had a good recovery from it and good experience, would you find it difficult to believe that in another case in another situation that Dr. Spencer did not provide proper care, would you have difficulty believing that because of your experience? VENIREPERSON THORNBURG: No. (No other responses.) Venireperson Thornburg stated clearly and unequivocally that she could be fair to appellant in spite of the fact that she had been a patient of Dr. Spencer’s some fifteen years previously. Venireperson Carson stated that he did not believe his familiarity with Dr. Spencer would affect him and that he believed he could be fair. Mr. Carson did not believe that having known Dr. Spencer or having been his patient would effect his ability to hear the evidence even to the slightest degree. Idioms such as “I believe I could” are common vernacular for definitive expressions of a person’s state of mind. Such expressions are not equivocations. State v. Evans, 701 S.W.2d 569, 573 (Mo. App.1985); State v. Pride, 567 S.W.2d 426, 433 (Mo.App.1978). As adeptly stated by Judge Smith in Pride at 433, “As much as judges and lawyers might desire it, people generally do not speak in absolutes, probably because they realize that few things are ever absolute.” The responses of venirepersons Thornburg and Carson were not equivocal such as to allow the closer scrutiny by this court of the trial judge’s discretion in failing to excuse these venirepersons as found appropriate by the court in Catlett, 793 S.W.2d at 351. The discretion lies with the trial court to determine whether a venireperson can be an impartial juror. Collins, 735 S.W.2d at 405. The determination is a factual one that is to be made by the trial court on the basis of the questions and answers elicited on voir dire as well as the demeanor and credibility of the venireper-son. State v. Wraggs, 512 S.W.2d 257, 259 (Mo.App.1974). The testimony of a venire-person as to his ability to act impartially is primary evidence of this fact. State v. McGrew, 534 S.W.2d at 551. It is also significant in the case at bar that the responses of venirepersons must be viewed in their entirety in determining whether they expressed bias or prejudice which will prevent them from being impartial. Hefele v. National Super Markets, Inc., 748 S.W.2d 800, 804 (Mo. App.1988). Additionally, general questions and nonverbal responses may be considered in determining a venireperson’s qualifica [14] tions. Bannister v. State, 726 S.W.2d 821, 826 (Mo.App.1987), cert. denied 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987). The record is clear that in regard to the specific and general question both venire-person Thornburg and Carson exhibited unequivocally that they would be impartial in deciding the case at bar. There was no abuse of discretion by the trial court’s refusal to excuse for cause venirepersons Thornburg and Carson. The judgment of the trial court is affirmed. BRECKENRIDGE, J., concurs. KENNEDY, J., dissents in separate dissenting opinion.