 

In the Missouri Court of Appeals
astern District

DIVISION FOUR
STATE OF MISSOURI, ) No. ED107197
)
Respondent, ) Appeal from the Circuit Court of
) of St. Charles County
VS. ) 1611-CR01673-01
)
KENOL CELIAN, ) Honerable Ted C. House
)
Appellant, ) Filed: February 25, 2020

OPINION
Kenol Celian appeals the judgment of the Circuit Court of St. Charles County entered after
a jury found him guilty of the class B felony of unlawful use of a weapon. He contends the trial
court abused its discretion by allowing the State during voir dire to present in explicit detail the
facts of the case and to ask questions of prospective jurors in a manner that prejudiced him by
predisposing the venire panel to react in a particular way favorable to the State to the anticipated

evidence. We agree and therefore reverse and remand for a new trial.!

 

' Celian also argues that the court abused its discretion by admitting the testimony of a law
enforcement officer relating one of the alleged victims’ out-of-court statements, but due to the
nature of that allegation of error and the likelihood that the issue may be avoided on remand, we
have concluded it is necessary and appropriate for us to address only Celian’s point regarding the
State’s voir dire questioning.

 
Background

This case arose from an incident on the evening of September 20, 2015, when Nathaniel

Myers and his sister, Jennifer Myers, were traveling in their minivan on Interstate 70 near

O’Fallon, Missouri, and Celian allegedly drove up behind them in a large green SUV and with a

firearm shot out the back right tire of the Myerses’ vehicle. The State charged Celian with one

count of the class B felony of unlawful use of a weapon, claiming that he “knowingly discharged

a firearm at a motor vehicle,” and the case proceeded to a jury trial.

During voir dire, the State was permitted over Celian’s objections to engage in a line of

questioning in which it presented facts of the case to the venire panel in explicit detail, The

transcript of the State’s inquiry reads as follows:

THE STATE:

JUROR NO. 10:

THE STATE:

JUROR NO. 10:

THE STATE:

JUROR NO. 10:

THE STATE:

Anybody here in the military who feels that because of that service,
you couldn’t be fair? This is a case about guns. You couldn’t be
fair and impartial in this case to both the State and to Mr. Celian?
Anybody? Yes, sir. .

Juror No. 10, I think—-I don’t think I could honestly say that there’s
a reason to pull out a firearm, aim it at somebody if you’re not
willing to kill them. So yes.

Okay. Well, let me ask you this: If] told you that the
circumstance—I talked about road rage before. That this is not a
thing where the State believes and it’s not trying to prove that this
defendant was actually shooting at the people, but that he was
basically trying to shoot the tire out of their—rear tire out of their
car. The fact that he wasn’t trying to shoot someone but was
basically trying to disable their vehicle because he was angry about
something, would that change your answer?

No, sir. There’s no excuse for that.
Okay. So you don’t think you could be fair and impartial?
No, sir. I think it is fair saying that there’s no excuse.

Okay. All right, sir. Thank you. Anybody else? I mean, that’s—
and that’s the question here. The State’s not trying to prove that Mr.

 
COUNSEL:

THE COURT:

COUNSEL:

THE COURT:

THE STATE:

COUNSEL:

THE STATE:

THE COURT:

THE STATE:

JUROR NO. 4:

THE STATE:

JUROR NO. 4:

THE STATE:

Celian here was trying to shoot anyone. But what our evidence will
show and what I believe is the case is—

Judge, I’m going to object.

State your objection.

Judge, I think we’re getting too far into the facts of this case.
Overruled. |

What the State’s evidence will be is that Mr. Celian came up to the
victim’s car after exhibiting some behavior that indicated he was
angry about this. And he—after going in front and cutting off the
car came behind—

Judge, I'm going to object again. This is not opening statement.
I’m not—
Overruled.

Came up behind the victim’s car, alongside of it to the right side,
and shot the rear—rear right tire, and disabled it. The tire went flat
and the victims went to the side of the road, Is there anybody here
that thinks that is just not a big deal? He wasn’t trying to shoot
anyone, he was just shooting the tires out of a car. Does anybody
think that’s—we’re making a mountain out of a molehill here?
That’s not a big deal? Anybody feel that way? What’s that, sir?

No. 4. It is a big deal. What if he missed the tire and hit the gas
tank?

Okay. That’s my point. But does everybody agree then that that’s
something that he should be accountable for, if he did it, correct?
That is a big deal when you shoot into a vehicle, right?

Yes.

Would everybody agree with that general proposition? Anybody
who disagrees with it? Thank you.

The jury was empaneled, the case tried, and Celian was found guilty of the State’s charge

of unlawful use of a weapon and sentenced to a term of 15 years’ imprisonment. His motion for

 
new trial, which asserted prejudice from the State’s voir dire questioning, was denied. This appeal
follows.
Discussion

1. Celian adequately preserved his claim of error with respect to the State’s voir dire
questioning,

The State argues that Celian failed to preserve his claim that the trial court abused its
discretion by allowing the State during voir dire to present in explicit detail the facts of the case
and to ask questions of prospective jurors in a manner that predisposed the venire panel to react in
a particular way favorable to the State to the anticipated evidence. We disagree. To preserve a
claim of error, counsel’s objection must be sufficiently specific to apprise the trial court of the
grounds for the objection. State v. Amick, 462 $.W.3d 413, 415 (Mo.banc 2015) (citing State v.
Stepter, 794 S.W.2d 649, 655 (Mo.banc 1990)). And on appeal, the party asserting error must rely
on the same theory that supported its objection at trial, or the issue is not preserved. State v.
Schneider, 483 S.W.3d 495, 504 (Mo.App.E.D. 2016).

In this case, we conclude Celian’s objections during voir dire and in his motion for new
trial reasonably apprised the trial court of the same, sufficiently-specific issue he raises on appeal:
that the State was permitted to divulge facts and ask questions based thereon in a manner that
prejudiced him to the venire panel. Celian’s objection during voir dire was that the State’s
questioning strayed “too far into the facts of [the] case” and effectively involved making an
“opening statement” to prospective jurors—i.e., placing the State’s theory of the case before them
in light of anticipated evidence. See White v. State, 939 8.W.2d 887, 902 (Mo.banc 1997) (defining
opening statement). The objection in Celian’s motion for new trial was that the court committed
reversible error by allowing the State “to give the venire panel specific facts about Defendant’s

case during voir dire” and to “repeatedly introduce the facts of the case into [its] questions for the

 
panel,” leaving him “without any opportunity . . . to defend against [the State’s version of events].”
And Celian’s point on appeal, articulating the same hazard, asserts that the trial court abused its
discretion by allowing the State’s voir dire questioning because “the venire panel was tainted by
the [State] divulging non-critical facts of the case that did not have a substantial probability of
exposing a disqualifying bias in order to [ask questions] , . . purely to predispose potential jurors
to believe the State’s arguments at trial.” We find that the point was preserved.
2. We review for abuse of discretion the trial court’s rulings in supervising voir dire.

The trial court supervises voir dire, and the nature and extent of the questions counsel may
ask are discretionary with that court. State v. Walker, 448 S.W.3d 861, 867 (Mo.App.E.D. 2014)
(citing Clark, 981 S.W.2d at 146). Specifically, and most relevant here, it falls to the trial court
“to determine whether a disclosure of facts on voir dire is sufficient to assure the defendant of an
impartial jury without, at the same time, being tantamount to a presentation of evidence” or
argument that would tend to sow prejudice in the venire. State v. Reyes, 108 S.W.3d 161, 165-66
(Mo.App. W.D. 2003) (citing State v. Antwine, 743 S.W.2d 51, 58 (Mo.banc 1987)).

We review for abuse of discretion such rulings made by the trial court durmg voir dire.
Walker, 448 S.W.3d at 867 (citing Clark, 981 S.W.2d at 146), And if we find abuse, we will
reverse if the defendant shows a real probability exists that he suffered prejudice as a result. fd.

3. The purpose of voir dire in a criminal trial is to vindicate the defendant's constitutional
right to a fair and impartial jury.

A defendant is entitled to a fair and impartial jury. State v. Clark, 981 S.W.2d 143, 146
(Mo. banc 1998) (citing U.S. Const. amends. VI, XTV; Mo. Constr. art. I, sec. 18(a)). One aspect
of “the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify
unqualified jurors.” Id (citing Morgan v. Illinois, 504 U.S. 719, 729 (1992)). The purpose of voir

dire is to discover bias or prejudice in order to select a fair and impartial jury. Jd (citing State v.

 
Leisure, 749 S.W.2d 366, 373 (Mo.banc 1988); State v. Smith, 649 S.W.2d 417, 428 (Mo.banc
1983)). “Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors
who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot
be fulfilled.” Jd (citing Morgan, 504 U.S. at 729-730).

4. Parties may not try the case during voir dire—-when prospective jurors are exposed to facts
of the case in a manner that predisposes them to react in a particular way to anticipated
evidence, prejudice may result.

In light of the purpose and timing of voir dire, neither the State nor defense counsel may
try the case during that proceeding. Clark, 981 8.W.2d at 146 (citing Antwine, 743 8.W.2d at 58).
Generally, argument or “a presentation of the facts in explicit detail” during voir dire is
inappropriate. Jd. (citing Antwine, 743 S.W.2d at 58). Similarly, the parties may not attempt to
elicit a commitment from jurors how they would react to hypothetical facts. /d. (citing State vy.
Jones, 749 8.W.2d 356, 359 (Mo.bane 1988)); State v. Jolliff, 867 S.W.2d 256, 260 (Mo.App.E.D.
1993) (“It is reversible error for an attorney during voir dire to attempt to obtain from the venire a
commitment or pledge to act in a specific way if certain facts are elicited or certain contingencies
arise at trial.”); Antwine, 743 S.W.2d at 59 (“The State may not hypothesize a set of facts and then
ask the prospective jurors how they would vote under those facts.”).

“fW]hen the inquiry includes questions phrased or framed in such manner that they require
the one answering to speculate on his own reaction to such an extent that he tends to feel obligated
to react in that manner, prejudice can be created.” Clark, 981 S.W.2d at 146-47 (citing State v.
Garrett, 627 S.W.2d 635, 642 (Mo.bane 1982)). Accordingly, Missouri courts have iong held that
“(p]hrasing a voir dire question in such a manner which pre-conditions the panel members’ mind
to react, even subconsciously, in a particular way to anticipate[d] evidence is an abuse of counsel’s

privilege to examine prospective jurors.” State v. Womack, 967 §.W.2d 300, 302 (Mo.App. W.D,

 
1998) (citing State v. Garrett, 627 S.W.2d 635, 642 (Mo.bance 1982)); State v. Taylor, 742 8.W.2d
625, 627 (Mo.App.E.D. 1988).

While some inquiry into the critical facts of the case is essential to search for bias and
prejudice in the jury, Clark, 981 S.W.2d at 147, “[t]he purpose of exposing prospective jurors to
critical facts .. . is to discover bias, not to create bias... .” State v. Whitt, 461 S.W.3d 32, 39
(Mo.App.E.D. 2015) (emphasis added) (citing State v. Ousley, 419 S.W.3d 65, 74 (Mo.bane
2013)). To determine whether voir dire questioning is directed properly at discovering bias, or
inappropriately at sowing prejudice in the venire, the court must ask whether for a prospective
juror to provide an affirmative or negative answer to the questioning “could reasonably be
construed as committing [them] to a particular course of action, i.e., to convict or acquit, or to give
credibility and weight to the testimony of any particular witness.” State v. Manley, 414 8.W.3d
561, 569 (Mo.App.E.D. 2013).

Questions beginning with “could” or “will you be able” generally do not commit a juror to
a verdict. State v. Isreal, 537 S.W.2d 565, 567 (Mo.App. 1976). However, queries touching upon
a prospective juror’s expectations or feelings about what they “would” do or believe in light of
particular facts about the case are irrelevant and properly excluded. State v. Kreutzer, 928 S.W.2d
854, 865 (Mo.banc 1996) (finding trial court did not plainly err in refusing to allow defense counsel
to ask prospective juror, “If the defendant didn’t testify, and he won’t, and the State was close but
not beyond a reasonable doubt, would that cause questions in your mind?”). Similarly, “[aJny
question requiring prospective jurors to ‘agree’ with some proposition stands in danger of violating
the proscription against seeking commitments during voir dire examination.” State v. Norton, 681

S.W.2d 497, 499 (Mo.App.E.D. 1984).

 
For example, in Norton, where the State anticipated there would be evidence during a rape
trial that “the victim contacted defendant’s mother and offered to drop the charges in return for
$5,000.00,” the State made an inappropriate “attempt to commit prospective jurors to a particular
course of future conduct” when it asked them, “And is there anyone on the jury panel—does
everyone on the jury panel agree, that a victim of a rape would prefer not to have to testify to the
details of such a crime in a public trial?” Jd The State’s question was a “subtle attempt to commit
the jurors to overlook damaging evidence which the prosecutor knew would be forthcoming.” Jd.

5. The trial court here abused its discretion by allowing the State to present in explicit detail
the facts of the case and to ask questions of prospective jurors in a manner that predisposed
them to react in a particular way favorable to the State to the anticipated evidence,
prejudicing Celian.

Here, the State made several different inquiries during the challenged line of voir dire
questioning. As noted above, before it provided any explicit details of the case, the State first
asked the members of the venire panel whether, in light of their military service, any of them could
not be fair to either the State or Celian. This was certainly permissible. Second, the State asked
venite members whether they could be fair and impartial in light of the fact that the State’s burden
in the case was not to prove that Celian shot at a person, but that he merely shot the tire out of the
Myerses’ vehicle. This was likewise permissible. There is nothing prejudicial about the State
divulging limited facts in order to determine whether prospective jurors will be able to follow the
court’s instructions about what the State needed to show to prove its case. See State v. Conaway,
557 §.W.3d 372, 377-78 (Mo.App. W.D. 2018) (holding the State’s voir dire questioning whether
prospective jurors would be able to convict the kidnapping defendant without proof of motive did

not inappropriately seek a commitment from jurors but rather sought permissibly to determine

whether the venire could follow the trial court’s instructions).

 
However, following these bias-seeking questions, the State was permitted to present the
facts of the case in explicit detail and in doing so turn to asking bias-injecting questions.
Specifically, the State was allowed to describe in depth what it believed its evidence would be and
how that evidence inculpated Celian in the sequence of events for which he was charged with
unlawful use of a weapon, and then also to ask the venire panel whether they agreed, or whether
they disagreed, that if those particular facts were shown, Celian should be held accountable for
the described conduct—that what he did specifically was a “big deal.”

These questions, in particular, departed from the established purpose of voir dire—to
discover bias or prejudice in order to select a fair and impartial jury—to instead sow prejudice in
the venire. See State v. Clark, 981 S.W.2d 143, 146-47 (Mo.banc 1998) (identifying as source of
prejudice questions that require the venire panel to speculate about how they will react to certain
evidence), In soliciting the prospective jurors’ feelings in light of such specifics, the State
effectively sought a commitment to its desired verdict—it attempted to precondition the panel
members’ minds to react in a particular way to the anticipated evidence, which is an abuse of its
privilege to examine prospective jurors. State v. Womack, 967 S.W.2d 300, 302 (Mo.App. W.D.
1998) (citing State v. Garrett, 627 S.W.2d 635, 642 (Mo.banc 1982)); State v. Taylor, 742 S.W.2d
625, 627 (Mo.App.E.D. 1988). Indeed, in light of the explicit factual details provided, for a
prospective juror to provide an affirmative answer to the State’s question could reasonably be
construed as committing them to a particular course of action. And as our cases hold, that fact
signals the State’s question was directed not at exposing prejudice, but at injecting it into the case.
State v. Manley, 414 8.W.3d 561, 569 (Mo.App..D. 2013).

“It is reversible error for an attorney during voir dire to attempt to obtain from the venire a

commitment or pledge to act in a specific way if certain facts are elicited or certain contingencies

 
arise at trial.” State v. Jolliff, 867 S.W.2d 256, 260 (Mo.App.E.D. 1993). Yet, the State briefed
the venire members on the specific facts of the case and then essentially asked whether they would
convict—whether they would hold Celian accountable for his alleged conduct, whether they
agreed it was a “big deal”-if those facts were shown at trial. This line of voir dire questioning
was not directed at determining, properly, whether the prospective jurors could follow the court’s
instructions, or whether, for some reason, they “could not” or “would not be able to” convict Celian
no matter the particular facts. Rather, it sought to bind jurors to a certain view of anticipated facts.

Certainly, it was proper for the State before providing a narrative of particular facts to ask
prospective jurors whether they “could not” or “would not be able to” find Celian guilty of the
charged offense, unlawful use of a weapon, simply because they would require evidence that he
meant to shoot at or kill someone. Cf State v. Crew, 803 S.W.2d 669, 670 (Mo.App.E.D. 1991)
(finding no error where the State “sought to determine whether any member of the venire panel
could not or would not be able to find the defendant guilty of the charges if the only evidence of
guilt of the acts charged consisted of the testimony of a single witness, the victim”). But the State
went further here and the trial court erred by allowing it to divulge facts and ask questions during
voir dire that were designed to obtain the venire members’ assurances that if the State presented
the case it described, they would, as jurors, hold Celian accountable for the charged offense.

We also conclude Celian has shown that a real probability exists that he suffered prejudice
as aresult. Prior to the empaneling of the jury, the State was allowed to put before every venire
member the particular facts it believed supported a conviction, and to directly solicit their
agreement to reach a certain verdict if those facts were shown. This was prejudicial error.
“Soliciting responses on the specific facts or circumstances of a case is improper when it appears

calculated to predispose jurors to react to anticipated evidence in a particular way or to commit to

10

 
acertain outcome.” Clark, 981 S.W.2d at 146-47. There is too great a risk that the jury, recalling

the State’s voir dire questioning, felt obligated to give the reaction improperly solicited by the

State—no member of the venire panel registered any disagreement with the State, when directly

asked to reveal such, that if the particular facts disclosed during voir dire were shown, what Celian

did was a “big deal” and he should be held accountable for the described conduct. Point granted.
Conclusion

For the reasons stated above, we reverse the judgment of the trial court and remand for a

new trial in this case.

James M. Dowd = ding dgé

Gary M. Gaertner, Jr., J., and
Robin Ransom, J., concur.

 

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