State of Missouri v. Christopher Eugene Pike

S
           IN THE MISSOURI COURT OF APPEALS
                   WESTERN DISTRICT
 STATE OF MISSOURI,            )
                 Respondent, )
                               )
 v.                            )             WD83180
                               )
 CHRISTOPHER EUGENE PIKE,      )             FILED: January 12, 2021
                    Appellant. )
                Appeal from the Circuit Court of Platte County
                 The Honorable James W. Van Amburg, Judge
             Before Division Three: Edward R. Ardini, Jr., P.J.,
                   and Alok Ahuja and Gary D. Witt, JJ.
      Following a jury trial, Christopher Pike was convicted in the Circuit Court of

Platte County of domestic assault in the second degree. Pike appeals. He argues

that the circuit court plainly erred in failing to strike two venire members for cause

on the court’s own motion, because the venire members did not unequivocally

indicate that they could be fair and impartial. We reject Pike’s jury-selection

argument and affirm his conviction. We vacate the judgment and remand to the

circuit court, however, so that the court can enter a judgment nunc pro tunc

accurately reflecting the offense of which Pike was convicted.

                               Factual Background
      Pike was dating his female Victim in April 2018. On April 11, 2018, the

Victim went to Pike’s home. After some drinking, a verbal argument ensued. The

argument escalated and became physical when the Victim stated that she wanted to

go to bed at approximately 10:00 p.m. Pike threatened the Victim’s life. He
punched her in the cheek, then choked her and hit her multiple times in the head as
well as in the stomach. The Victim eventually made her way to the kitchen, where

she grabbed a knife and told Pike, “if you want me dead that bad, you can just kill

me.” Pike grabbed the knife from the Victim, and the assault ended.

       Later that night, Pike restrained the Victim on the bed after she had taken

her clothes off. Pike punched the Victim multiple times in the vaginal area, and

whipped her with a belt across the upper thighs. Pike inserted his fist and a

baseball bat inside the Victim’s vagina; at the Victim’s request, Pike placed a

condom on the baseball bat. The Victim testified that she believed it was in her

best interest not to resist the sexual acts Pike was performing, but she did not

consent. Pike let the Victim out of her restraints to perform oral sex on him, which

she did. Pike then fell asleep, and the Victim fled the house.

       The Victim suffered extensive injuries as a result of the incident, and was

still in considerable pain at the time of trial in July 2019. The Victim suffered

substantial bruising all over her body. She had lacerations on her lips, neck, arms,

thighs, and labia, as well as on her liver, which caused internal bleeding. Her left

eardrum was damaged, and her cervix was injured and bleeding. The forensic

nurse who treated the Victim testified that she does not frequently see the type of

injuries the Victim suffered, because “most women don’t survive those types of
injuries.” A physician testified that he would typically associate the type of

laceration which the Victim suffered on her liver with a significant abdominal

trauma like that occurring in a high-speed motor vehicle accident.

       Pike messaged the Victim following the abuse, begging her not to go to the

police. Pike offered the Victim “a couple thousand dollars” if she would not report

him.

       Police obtained a search warrant for Pike’s home. They observed multiple

broken objects in the master bedroom. Police recovered a baseball bat with a




                                           2
condom over the barrel from the corner of the bedroom, and photographed black

straps attached to three corners of the bed.

       Pike was charged in an amended information with first-degree sodomy in

violation of § 566.0601 (Count I), and with first-degree domestic assault in violation

of § 565.072 (Count II).

       During jury selection at Pike’s trial, multiple members of the jury venire

indicated that they had been victims of sexual abuse, or had close friends or family

members who had been victimized. Near the end of the State’s voir dire

examination, Venireperson 28 stated that his niece had been sexually assaulted and

murdered a few years previously. Venireperson 28 stated that law enforcement had

responded to his niece’s case, that the case had been resolved, and that he was

satisfied with how the case had been handled. When he was asked if there was

“[a]nything about that case and your connection to it that would make you unable to

be fair and impartial in this case,” Venireperson 28 responded, “[p]ossibly.” No

further questions were asked of Venireperson 28, and he made no further

statements during voir dire.

       Defense counsel asked the venire members additional questions concerning

their experience with sexual assault. During that questioning, defense counsel had
the following exchange with Venireperson 40.

             [Venireperson] 40: And I have a cousin that was sexually
       assaulted growing up. She did report it years later and he did serve
       time but he has since been released.
              [Defense Counsel]: Would that affect your ability to serve on
       this jury, do you think?
              [Venireperson] 40: Possibly.
              [Defense Counsel]: Okay. Can we do a little beyond “possibly”?


       1     Statutory citations refer to the 2016 edition of the Revised Statutes of
Missouri, updated by the 2017 Supplement.


                                             3
             [Venireperson] 40: I think I feel the same way [as another
       venire member] that I would like to think I could be impartial but if it
       did make me think of the stories that I heard or memories, then it
       could make me unfair.
              [Defense Counsel]: And nobody wants any of you to have
       memories dredged that are unpleasant, so if you can’t do it, you need to
       let us know.
              [Venireperson] 40: I do think that it would be hard.
              [Defense Counsel]: Okay. Thanks.
No further questions were asked of Venireperson 40.

       As the parties and the court discussed striking venire members for cause, the

State requested that Venireperson 28 be stricken. Although using the incorrect

gender pronoun, the prosecutor accurately described Venireperson 28 as the

individual who “claimed [his] niece had been raped.” Another prosecutor interjected

– mistakenly – that the relevant venire member was Venireperson 29. Defense

counsel stated that she had “[n]o objection,” and Venireperson 29 was stricken for

cause (based on the circumstances to which Venireperson 28 had testified during

voir dire).

       Later, the court raised the prospect of striking Venireperson 29 based on

hardship. The court accurately described Venireperson 29 as a psychotherapist who

was concerned that jury service would disrupt her treatment of her patients.
Counsel for the State responded that “I thought we already struck her for cause,”

and the court then repeated that “29 is struck already.” During this exchange, the

court also stated – unprompted and inaccurately – that “40 is struck. 40 is struck

already.” Neither the prosecution nor the defense corrected the court’s

misstatement that Venireperson 40 had been stricken.

       At the close of the discussion of strikes for cause and for hardship, the court

listed on the record those venire members who remained, including Venirepersons




                                           4
28 and 40. Neither party raised any objection. Neither side used peremptory

strikes against Venirepersons 28 or 40, and both served on Pike’s jury.

       The jury deadlocked on Count I, first-degree sodomy. On Count II, the jury

convicted Pike of the lesser-included offense of domestic assault in the second

degree in violation of § 565.073.2 The circuit court accepted the jury’s verdict on

Count II, and declared a mistrial on Count I.

       Pike subsequently entered into a plea agreement with the State to resolve the

remaining charge. As part of the plea agreement, the State filed an amended

information reducing the offense charged in Count I from first-degree sodomy to

assault in the second degree in violation of § 565.052. The amended information

added an additional charge of second-degree assault arising out of the April 12,

2018 incident as Count III, and a charge of damage to jail property in violation of

§ 221.353 as Count IV. Pike entered a plea of guilty to Counts I, III, and IV of the

amended information on February 28, 2020.

       The circuit court sentenced Pike to seven-year terms of imprisonment on

Counts I, II and III, and a four-year term on Count IV. The sentences on Counts III

and IV were ordered to run consecutively to each other, and consecutively to the

sentence on Count II, for a total term of imprisonment of eighteen years.
       Pike appeals. On appeal, he challenges only his conviction on Count II (the

count of which he was convicted by the jury).

                                  Standard of Review
       Pike did not move to strike Venirepersons 28 and 40 before the jury was

seated, and he did not challenge their service on the jury in his new-trial motion.


       2       Domestic violence in the first degree, with which Pike was charged, required
that the defendant knowingly caused or attempted to cause the victim “serious physical
injury,” while second-degree domestic assault required that the defendant “[k]nowingly
causes physical injury to such domestic victim by any means.” See §§ 565.072.1,
565.073.1(1).


                                             5
Pike concedes that he failed to preserve his challenges to the qualifications of

Venirepersons 28 and 40 for appellate review, and that he is entitled only to plain-

error review.

      When a claim of error is unpreserved, Rule 30.20 gives appellate courts

discretion to review “plain errors affecting substantial rights . . . when the court

finds that manifest injustice or [a] miscarriage of justice has resulted therefrom.”

Rule 30.20. Review for plain error involves a two-step process. State v. Baumruk,

280 S.W.3d 600

, 607 (Mo. 2009). The first step requires a determination of whether

there is a claim of “evident, obvious, and clear” error which “facially establishes

substantial grounds for believing that manifest injustice or miscarriage of justice

has resulted.”

Id. (citations and internal

quotation marks omitted). “If plain error

is found, the court must then proceed to the second step and determine whether the

claimed error resulted in manifest injustice or a miscarriage of justice.”

Id. at 607- 08

(citation and internal quotation marks omitted). “[T]he defendant bears the

burden of demonstrating manifest injustice entitling him” to review. State v.

Brandolese, 

601 S.W.3d 519

, 526 (Mo. 2020) (citation and internal quotation marks

omitted).

      “The plain error rule is to be used sparingly and may not be used to justify a
review of every point that has not been otherwise preserved for appellate review.”

State v. Jones, 

427 S.W.3d 191

, 195 (Mo. 2014). Moreover, “[n]ot all prejudicial

error – that is, reversible error – can be deemed plain error. Rather, a defendant’s

Rule 30.20 burden is much greater – not merely to show prejudice, but manifest

injustice or a miscarriage of justice – which in this context means outcome-

determinative error.” State v. Jones, 

530 S.W.3d 525

, 529 (Mo. App. E.D. 2017)

(citations and internal quotation marks omitted).




                                           6
                                      Discussion
                                           I.
      A criminal defendant is entitled to a fair and impartial jury. U.S. Const.

amend. VI, XIV; Mo. Const. art. 1, §§ 18(a), 22(a). To protect this constitutional

right, “a venireperson is qualified to serve as a juror only if said venireperson is able

to enter upon that service with an open mind, free from bias and prejudice.” 

Jones, 530 S.W.3d at 532

(citation and internal quotation marks omitted). “Where a

venireperson’s answer suggests a possibility of bias, that person is not qualified to

serve as a juror unless, upon further questioning, he or she is rehabilitated by

giving unequivocal assurances of impartiality.” James v. State, 

222 S.W.3d 302

, 306

(Mo. App. W.D. 2007).

      Here, both Venirepersons 28 and 40 stated that the experiences of their

family members with sexual assault could “possibly” impact their ability to be fair

and impartial, and neither venire member was questioned further or rehabilitated.

Had defense counsel moved to strike Venirepersons 28 and 40 for cause, it may well

have been reversible error for the circuit court to allow them to serve on the jury.

      Defense counsel did not move to strike either venire member, however, and

Pike thereby waived appellate review. State v. Baumruk, 

280 S.W.3d 600

, 615 (Mo.

2009). As the Missouri Supreme Court has explained:
      The rule requiring contemporaneous objections to the qualifications of
      jurors is well founded. It serves to minimize the incentive to sandbag
      in the hope of acquittal and, if unsuccessful, mount a post-conviction
      attack on the jury selection process. For that reason, juror challenges
      made for the first time after a conviction are highly suspect.
State v. Hadley, 

815 S.W.2d 422

, 423 (Mo. 1991) (citation omitted).

      Despite Pike’s failure to preserve the juror-qualification issue, “this Court

may consider whether plain error occurred.” 

Baumruk, 280 S.W.3d at 616

(citation

omitted). While Baumruk holds that a circuit court’s failure to strike a juror for
cause is subject to plain-error review, the Supreme Court’s discussion indicates that


                                           7
it will be a rare case in which plain error is found based on a trial court’s failure to

strike a juror sua sponte. The Court explained:

      “[A] trial court is under no duty to strike a juror on its own motion.”
      

Hadley, 815 S.W.2d at 424

. In State v. Overby, this Court emphasized
      that “[t]he absence of any showing by the transcript that the juror was
      challenged precludes [the Court's] finding that the trial court erred in
      the respect charged.” 

432 S.W.2d 277

, 279 (Mo.1968). “The trial court
      was under no duty to strike the juror on its own motion.”

Id. Furthermore, “[t]rial strategy

is a significant consideration and such
      assertions of plain error are normally denied without comment.”
             Here, defense counsel failed to strike peremptorily Mr. Matlock
      or seek to strike him for cause. As such, this challenge is highly
      suspect. See 

Hadley, 815 S.W.2d at 423

. The trial court in Mr.
      Baumruk's proceedings was under no duty to strike Mr. Matlock on its
      own motion, and, therefore, there was no evident, obvious or clear
      error.

Baumruk, 280 S.W.3d at 616

(other citations omitted).

      This Court has repeatedly rejected claims that a circuit court committed

plain error by failing to strike a venire member for cause. In State v. Ebeirus, 

184 S.W.3d 582

(Mo. App. S.D. 2006), the Court noted that the defendant had “cite[d] no

case where a trial court has been found to have committed reversible error, under

plain error review, for failing to remove a member of the venire sua sponte.”

Id. at 585.

The Southern District reasoned that “[t]his absence [of reversals for plain
error] is the natural result of the policy requiring a contemporaneous objection to

the qualifications of jurors.” Id.; see also State v. Skinner, 

494 S.W.3d 591

, 594 (Mo.

App. W.D. 2016) (“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. 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.’” (citing and quoting 

Baumruk, 280 S.W.3d at 616

)); State v.

Jones, 

530 S.W.3d 525

, 532 (Mo. App. E.D. 2017) (quoting and following Skinner);
State v. Marr, 

499 S.W.3d 367

, 376 (Mo. App. W.D. 2016).


                                            8
      Given that the circuit court was under no obligation to strike Venirepersons

28 and 40 on its own motion, Pike has failed to establish that the court committed

evident, obvious, and clear error by failing to remove them from the jury pool. In

addition, we note that in this case the court intended to strike Venireperson 28 for

cause, but was misled by the prosecution as to the number of the venire member to

be stricken. Pike’s counsel affirmatively stated that she had “no objection” to the

court striking Venireperson 29, based on Venireperson 28’s relationship to a victim

of sexual assault. In these circumstances, we will not convict the circuit court of

plain error where counsel for both parties participated or acquiesced in the court’s

striking of the wrong venire member.

      Given that there was no evident, obvious, or clear error in this case, it is

unnecessary to consider whether a manifest injustice or miscarriage of justice

occurred. Even if we considered the issue, we would find no manifest injustice

mandating plain-error relief. Neither Venireperson 28 nor Venireperson 40

testified that they would be unable to act fairly and impartially in Pike’s case.

Venireperson 28 stated only that the sexual assault and murder of his niece could

“possibly” affect his ability to be fair and impartial. Similarly, Venireperson 40

stated that his cousin’s victimization could “possibly” affect his ability to serve on
Pike’s jury, but that he “would like to think [he] could be impartial,” although he

acknowledged “that it would be hard.” These sort of equivocal responses are

insufficient to establish manifest injustice – namely, that the seating of

Venirepersons 28 and 40 constituted “outcome-determinative error.” 

Jones, 530 S.W.3d at 529

(citation and internal quotation marks omitted); see 

Skinner, 494 S.W.3d at 594

(no manifest injustice where venire member “did not state that she

could not be fair and impartial,” but merely “equivocated” as to whether she would

want to hear evidence on an extraneous issue; “[t]his equivocation is insufficiently




                                            9
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”).

      The lack of manifest injustice is confirmed by the relatively favorable

outcome Pike achieved at trial. The State presented extensive and detailed

testimony concerning Pike’s brutal actions, and the serious injuries he inflicted on

the Victim. This testimony was corroborated by graphic photographs of the Victim’s

injuries, and by the physical evidence police recovered or observed in Pike’s

bedroom (including a baseball bat with a condom on it, and straps attached to the

corners of his bed). The State also presented the jury with electronic messages in

which Pike begged the Victim not to go to the police, and offered her thousands of

dollars to remain silent. Despite all of this evidence, the jury deadlocked on the

first-degree sodomy count, requiring the court to declare a mistrial on that count.

On the domestic assault count, the jury convicted Pike of a lesser second-degree

offense, rather than the first-degree offense charged by the State. In these

circumstances, Pike cannot establish that he suffered a manifest injustice by the

seating of Venirepersons 28 and 40 on his jury.

                                           II.
      What we have said above disposes of the claims of error Pike raises. In its

brief, however, the State points out that the circuit court’s amended judgment

incorrectly states that Pike was convicted on Count II of assault in the second

degree in violation of § 565.052, even though the court orally pronounced sentence

for domestic assault in the second degree in violation of § 565.073. “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.”

Skinner, 494 S.W.3d at 595

(citation and internal quotation marks omitted); see also
State v. Sanders, 

481 S.W.3d 907

, 912 (Mo. App. E.D. 2016) (citing Johnson v. State,


                                           10

446 S.W.3d 274

, 276-77) (Mo. App. E.D. 2014)); Rule 29.12(c) (“Clerical mistakes in

judgments . . . may be corrected by the court at any time after such notice, if any, as

the court orders.”). Because the circuit court’s judgment inaccurately reports the

offense of which Pike was convicted on Count II, we vacate the judgment, and

remand to the circuit court for entry of a nunc pro tunc judgment correctly

identifying the offense of which Pike was convicted, and for which he was sentenced,

on Count II. Because second-degree assault and second-degree domestic assault are

both class D felonies, re-sentencing on Count II is not required.

                                     Conclusion
      We affirm Pike’s convictions, but vacate the judgment and remand to the

circuit court to enter a judgment nunc pro tunc accurately memorializing Pike’s

conviction on Count II.



                                               ____________________________________
                                               Alok Ahuja, Judge
All concur.




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