Opinion
No. ED 86381
June 6, 2006
Appeal from the Circuit Court of St. Charles County, Hon. Lucy D. Rauch.
Kent Denzel, Columbia, MO, for appellant.
Jeremiah W. Nixon, Lisa M. Kennedy Jefferson City, MO, for respondent.
Before Hoff, P.J., Ahrens, J. and Cohen, J.
Paul Bainter ("Defendant") appeals from the judgment of the trial court following verdicts convicting him of first degree robbery, first degree burglary, resisting arrest, seven counts of felonious restraint, and eight counts of armed criminal action. The trial court sentenced Defendant as a persistent offender to consecutive terms of life imprisonment for the robbery, life imprisonment for the burglary, seven years' imprisonment for resisting arrest, fifteen years' imprisonment for each count of felonious restraint, and fifty years' imprisonment for each count of armed criminal action. Defendant raises a number of claims on appeal, including a claim that the jury was never sworn to try the case. We transfer this case to the Missouri Supreme Court.
On January 3, 2004, two suspects robbed an IGA grocery store ("IGA") in St. Charles, Missouri, with each suspect using a gun. During the course of the crime, the suspects directed one of the owners, the employees, and the two customers into the meat cooler in the back room, closed the front door to the meat cooler and told the people inside to stay there.
The day following the robbery at the IGA, Defendant and Robert Davis were arrested by members of the O'Fallon Police Department following a chase of a white pickup truck with stolen plates driven by Davis, and a subsequent chase on foot as Defendant and Davis fled after abandoning the truck in the median of I-70.
Defendant and Davis were tried jointly in March 2005. The venire panel was sworn, examined on voir dire, and a jury was selected. The trial court excused the selected jurors for lunch, and before they returned, had a brief discussion with the attorneys on the record. During the course of that discussion, the trial court stated that "we're ready to proceed to bring the jury up to place them under oath and read the preliminary instructions and opening statements." The jury was thereafter brought into the courtroom, and the trial court proceeded to outline the course of the trial and give preliminary instructions, but did not administer the oath to the jury. Counsel for the State and for Defendant made their opening statements, and the trial continued. Following the close of the evidence and the reading of instructions, the jury retired to deliberate. The jury returned eighteen guilty verdicts against Defendant. The trial court polled the jurors, who confirmed that these were their verdicts. The trial court found that the verdicts were in proper order, accepted them, and ordered them filed. It thereafter discharged the jury.
In the preamble to instructions given to the jury following the close of evidence, the trial court stated in part: "The law applicable to this case is stated in these instructions and the two which the Court read to you immediately after you were sworn as jurors. . . ." The trial court did not realize at this point that the jury had not been sworn.
Defendant timely filed a motion for a new trial, or in the alternative, judgment of acquittal. Among the grounds raised in this motion was the failure of the trial court to swear the petit jury. The trial court denied the motion. Regarding the swearing of the jury, the trial court specifically found that:
With respect to the Court's apparent failure to administer the usual oath to the jury after empanelling the jury, despite announcing its intention to do so on the record, as brought to the attention of counsel after the Court reviewed the Court's trial notes and the court reporter reviewed her official notes, the Court finds that the members of the jury were sworn as members of the venire panel and questioned under oath as to their ability to follow the instructions of the Court and their qualifications to serve as jurors in the above styled cause, they were found qualified as jurors in this cause, were empanelled and instructed by the Court without objection; were polled as to their verdicts and adopted their verdicts; the verdicts were accepted and ordered filed and the jury discharged, all without objection. The Court therefore finds that the jury was sworn and any irregularity in the oath has been waived by defendants for failure to timely make an objection; . . .
Defendant now appeals.
We address Defendant's second point relied on as it is dispositive of the case. In his second point, Defendant contends that the trial court plainly erred in entering sentence and judgment against Defendant in that the petit jury was never sworn to try the case.
Defendant did not object to the failure to swear the jury, although he raised the matter in his motion for a new trial. Accordingly, he requests plain error review. In reviewing for plain error, this Court should examine first whether the claim is one that, on its face, establishes substantial grounds for believing that manifest injustice or a miscarriage of justice has occurred. State v. Norman, 178 S.W.3d 556, 560 (Mo.App. 2005). Once a determination has been made that plain error is established facially, this Court then reviews the claim to determine whether or not manifest injustice or a miscarriage of justice has actually occurred. Id. The plain error rule is to be used sparingly, and it does not justify a review of every alleged error that has not been preserved properly for appellate review. Id. Plain error is clear, obvious, and evident error, and not all prejudicial error is plain error. Id.
A jury is to be impaneled and sworn before the trial proceeds. Section 546.070 RSMo (2000). As Rule 27.02(d) provides, the order of trial in a felony case requires that "[a] qualified jury shall be selected as provided by law and shall be sworn well and truly to try the case." The jury does not actually exist until the venirepersons selected therefor are sworn to service in that capacity. State v. Bohlen, 690 S.W.2d 174, 177 (Mo.App. 1985). The oath for swearing a selected jury is substantively as follows:
Members of the jury, please rise and raise your right hand to be sworn. You and each of you do solemnly swear that you will well and truly try the issues in this cause, in which the State of Missouri is plaintiff and __________ is the defendant, and a true verdict render according to the law and the evidence so help you God. Be seated please.Bench Book for Missouri Trial Judges, Vol. V, Ch. 3, Section 3.9(5) (1998).
The form of the affirmation is slightly different from that of the oath, but substantively the same as the contents of the oath.
Members of the jury, please rise and raise your right hand to affirm. You do solemnly affirm that you will well and truly try the issues in this cause, in which the State of Missouri is the plaintiff and __________ is the defendant, and a true verdict render accordingly to the law and the evidence, under the pain and penalty of perjury as provided by law. Be seated, please.Bench Book for Missouri Trial Judges, Vol. V, Ch. 3, Section 3.9(6) (1998).
The issue of failing to swear a petit jury has been addressed by the Missouri Supreme Court. It is reversible error if the record does not show that the jury has been sworn to try the cause before the jury starts to deliberate. See State v. Frazier, 98 S.W.2d 707, 715 (Mo. 1936); State v. Berry, 195 S.W. 998 (Mo. 1917); State v. Mitchell, 97 S.W. 561, 561-62 (Mo. 1906). While the trial court may often be presumed to have done its duty, the record must show affirmatively that the jury was sworn. State v. Barr, 34 S.W.2d 477, 479 (Mo. 1930); State v. Taylor, 256 S.W. 1059, 1061 (Mo. 1923). Missouri statutes and the Rules contemplate that the jury shall be impaneled and sworn at the start of the trial. Section 546.070 RSMo (2000); Rule 27.02(d). See also Frazier, 98 S.W.2d at 715. "However, a party may waive irregularities in the swearing of the jury, where there has been substantial compliance with the statute." Id. InFrazier, the jury was not sworn until after five witnesses had testified, and the defendant failed to make a timely objection.Id. The Missouri Supreme Court held that there was substantial compliance with the statute where the jury had been sworn prior to deliberating, and that the irregularity in administering the oath was not a fatal error. Id. at 715-16.
The State contends that the absolute requirement of Mitchell that a petit jury must be sworn in a criminal case is a result of legal formalism, and the modern trend has been away from formalism and to adopt a more functional approach. The State argues that this is, at most, a defective oath situation similar to that in Frazier, and that Frazier itself indicates that Missouri has moved away from the alleged legal formalism ofMitchell and adopted a more functional approach. We disagree. The Missouri Supreme Court in Frazier held that "it is imperative that the jury be sworn to try the case and that the record show it[,]" and also held that administering the oath to the jury "during the progress of the trial and before they had begun to deliberate" constitutes substantial compliance with the statute, and that such a claim of error could be waived by failing to timely object. Frazier, 98 S.W.2d at 715-16. It did not hold, or even imply, that a complete failure to administer the oath prior to jury deliberations constitutes "substantial compliance" with the statute, or that the defendant could waive such a claim of error. In the case before this Court, the record does not show that the jury was ever sworn at any point during the trial. The trial court stated its intention to swear the petit jury prior to reading instructions one and two to the jury, but failed to do so. The trial court discovered this oversight after verdicts were returned and the jury discharged. Here there was no substantial compliance with either the statute or Rule 27.02(d).
The State cites an Alabama case, Ex parte Deramus, 721 So.2d 242 (Al. 1998) in support of the proposition that if the venire is sworn, the failure to swear the petit jury constitutes a defective oath situation and not a failure to give any oath at all and is reversible error only if an objection is timely raised. We disagree. The fact that the venire was sworn does not make the failure to swear the jury a defective oath situation. The two oaths are different. In Deramus, the oath given to the venire went beyond requiring that the members of the venire swear or affirm to well and truly answer questions relating to their qualifications as jurors. The Deramus oath also required that the venirepersons swear or affirm to "well and truly try all issues and execute all writs of inquiry submitted to you and true verdicts render according to the law and evidence[.]" Deramus 721 So.2d at 243. The venire oath in Missouri does not use similar language, but rather is concerned solely with the venire members swearing or affirming to answer questions regarding their qualifications as jurors. The venire oath in Missouri does not satisfy the requirement of Rule 27.02(d) that the jury swear or affirm "well and truly to try the case."
The oath given to the venire in this case was as follows: "Do each of you solemnly swear or affirm that you will give true answers to such questions as may be asked of you by court and counsel, touching on your qualifications to serve as jurors in this cause now coming for trial so help you?" After releasing some members of the venire on the basis of hardship, the trial court administered a slightly different oath to the remaining members of the venire panel as follows: "Do you and each of you solemnly swear or affirm that you will give true answers to such questions as may be asked of you by court and counsel, touching on your qualifications to serve as jurors in this cause now coming for trial so help you?"
The State also cites cases from other jurisdictions in support of the position that even a complete failure to swear the jury is not fatal error, but more akin to objections regarding the jury's competency or impartiality, and that there must be timely objections and that the failure to swear must be prejudicial.See State v. Vogh, 41 P.3d 421, 425 (Or.App. 2002); Sides v. State, 693 N.E.2d 1310, 1312 (Ind. 1998); State v. Arellano, 965 P.2d 293 (N.M. 1998).
In State v. Arellano, 965 P.2d 293, the defense counsel admitted that he was aware that the jury had not been sworn and that as a tactical move he deliberately did not call this to the trial court's attention until after the jury returned its verdict. In addition, the trial court recalled the jurors, administered the oath and asked if the jurors had followed the strictures of the oath in rendering its verdict. This is not the situation in this case.
In Sides v. State, 693 N.E.2d at 1312, the Indiana Supreme Court held that any error in failing to swear the jury at all was waived by the defendant's failure to make a timely objection. That is not the law in Missouri, as Frazier requires at least "substantial compliance" with the statute. See Frazier 98 S.W.2d at 715. We note that the Indiana Supreme Court, though making an apparent bright line rule, did observe that the record in Sides suggested that the jury was sworn, and stated that the jury oath is "more than a mere formality[,]" serving the dual function of impressing upon the jurors the solemnity of the trial and ensuring a defendant's right to an impartial jury. Sides, 693 N.E.2d at 1312. It also noted that the oath "informs the defendant when jeopardy attaches." Id.
The Oregon decision, Vogh, 41 P.3d 421, is factually similar to the case before this Court, but is distinguishable in that when Vogh was decided there was no Oregon precedent that directly addressed the issue. See Vogh, 41 P.3d at 425. As previously noted, the Missouri Supreme Court has addressed this subject several times. In Vogh, defense counsel raised the issue after the trial, and the trial court could not remember whether the jury was sworn, while the court clerk recalled swearing the jury. Id. at 422-23. The record did not show that it was sworn. Id. at 423. While the Oregon appellate court ultimately held that absent a timely objection, the failure to administer the oath without any other showing of juror misconduct or prejudice is not reversible error, it also observed that authority among the states was divided over the consequences of a complete failure to swear the jury in a criminal case. Id. at 425, 428-29. It noted that while a number of cases stated that a verdict by an unsworn jury is a nullity, most of those did so in dicta, and that most of the remainder are "dated" and based on a "formalistic view[,]" citing Mitchell by way of example, suggesting by implication that it considered that to be the state of the law in Missouri. Id. at 425-26.
Other jurisdictions also take the position that swearing the jury is not a relic or a legal formalism. For example, in Georgia a verdict by an unsworn jury in a criminal case is a mere nullity. Keller v. State, 583 S.E.2d 591, 593 (Ga.App. 2003). In that state "`[a] criminal defendant may not waive the trial court's complete failure to administer an oath to the jury.'"Id. (quoting Philips v. State, 571 S.E.2d 361 (Ga. 2002).
In a defective oath case in Arizona, where the jury was sworn five minutes after they began deliberations, the appellate court noted that the failure to give the oath to the jury prior to trial was a technical violation of the rules, and not reversible error, but went on to add that it:
does not mean to suggest by its holding in this case that the oath is unimportant or a mere formality. To the contrary, the juror's oath is an essential element of the constitutional guarantee to a trial by an "impartial" jury. And if the oath were not given at all we would have no hesitation in finding reversible error even absent any showing of actual prejudice.
State v. Godfrey, 666 P.2d 1080, 1082 (Az.App. 1983). As the Oregon appellate court in Vogh observed, there is no consensus among the states on this issue. It is not clear what is the "modern trend."
Even if we were to find the authorities from other jurisdictions cited by the State to be persuasive, we are constrained to follow the precedent of the Missouri Supreme Court. As noted earlier, the Missouri Supreme Court has held in several older cases that the failure to swear the jury at all is reversible error. See Berry, 195 S.W. 998; Mitchell, 97 S.W. at 561-62. Frazier did not relax this standard, but rather held that while "it is imperative that a jury be sworn to try the cause and that the record show it[,]" a defendant can waive a claim of error by failing to object to irregularities in administering the oath where there has been substantial compliance with the statute by the jury being sworn during the progress of the trial prior to deliberations. Frazier, 98 S.W.2d at 715-16. In Missouri, swearing a jury is not a mere formality. Jeopardy attaches when a jury is empanelled and sworn, and double jeopardy protection may be applicable thereafter.See Peiffer v. State, 88 S.W.3d 439, 445 (Mo. banc 2002);State v. Potts, 181 S.W.3d 228, 238 (Mo.App. 2005). We believe that under controlling precedent of the Missouri Supreme Court, where the record fails to show that the jury was sworn to try the case at any point before they began to deliberate, the trial court plainly erred. See Frazier, 98 S.W.2d at 715-16; Berry, 195 S.W. 998; Mitchell, 97 S.W. at 562. This is dispositive of the case, and therefore we do not consider Defendant's other points relied on.
We would reverse the judgment of the trial court and remand for a new trial. Because of the general interest and importance of the issue of the effect of the failure to swear the jury in a criminal case, and for the purpose of reexamining existing law, this case is transferred to the Missouri Supreme Court pursuant to Rule 83.02.
Mary K. Hoff, P.J., concurs.
Patricia L. Cohen, J., concurs.