State of Missouri v. Cedrick Oliver Russell

• 2022-12-13

Date Filed2022-12-13

DocketWD84644

JudgeMitchell, P.J., and Martin, J., concur.

Cited0 times

StatusPublished

Full Opinion (html_with_citations)

                                              In the
                           Missouri Court of Appeals
                                     Western District

                                                   
 STATE OF MISSOURI,                                
                                                   
                  Respondent,                          WD84644
 v.                                                    OPINION FILED:
                                                   
 CEDRICK OLIVER RUSSELL,                               DECEMBER 13, 2022
                                                   
                   Appellant.                      
                                                   
                                                   

                 Appeal from the Circuit Court of Jackson County, Missouri
                          The Honorable Kevin D. Harrell, Judge

 Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge,
                             Anthony Rex Gabbert, Judge

       Cedrick Russell appeals his conviction following jury trial in the Jackson County Circuit

Court for first degree murder, first degree sodomy, second degree burglary, stealing, first degree

tampering, and tampering with physical evidence. He argues in six points on appeal that the trial

court erred in failing to strike a jury member, excluding the public from voir dire, failing to grant

a mistrial, submitting the stealing count, failing to grant an acquittal, and in the sentence given for

sodomy. The judgment is affirmed as corrected.

                                                Facts

       On July 28, 2017, Cedrick Russell was indicted for first degree murder, first degree

sodomy, first degree burglary, felony stealing, first degree tampering with a motor vehicle, and
tampering with physical evidence. In the light most favorable to the verdict, State v. Phillips,

633 S.W.3d 891

, 894 (Mo. App. W.D. 2021), the following evidence was presented at trial in March

2021:

Russell lived next door to the victim (“Victim”1). On May 31, 2017, sometime after

midnight, he entered the Victim’s kitchen window, leaving his fingerprints on the exterior side.

Russell attacked and sodomized Victim. He then strangled her to death. Russell’s DNA was found

in sperm left on wadded up paper towels found next to Victim’s bed and in a rectal swab taken

from Victim.

Russell ransacked Victim’s bedroom and stole at least four items of jewelry and Victim’s

cell phone. His fingerprints were found on a jewelry box in Victim’s bedroom. Russell then stole

Victim’s automobile.

At 3:14 a.m., Russell conducted a map search on his phone for an apartment complex in

Raytown, Missouri. Victim’s car was eventually found near there. It had vomit on the front fender

that was similar to vomit found in Victim’s bedroom and bathroom.

On June 2, 2017, Victim’s body was found. That same day, Russell used his cell phone to

search for a pawn shop. He was subsequently recorded on video pawning Victim’s jewelry at that

pawn shop.

On June 6, 2017, Russell changed his cell phone number. He drove around various

locations in the Kansas City area with Victim’s cell phone from May 31 to June 8, 2017. The

evidence showed that Russell drove to his girlfriend’s address on the morning of the murder with

Victim’s cell phone. Victim’s cell phone was never recovered.

1
We refer to Russell’s victim using the generic term “Victim” in order to protect her
privacy. See § 595.226.1, RSMo 2016.

2
Victim’s last cell phone call was with her boyfriend and ended at 12:10 a.m. the morning

of her murder. Russell’s cell phone came from the area where Victim’s car was later found and

moved into an area that included the crime scene at 12:15 a.m. the morning of the murder. Victim

did not answer a call from her best friend at 1:37 a.m.

Russell did not testify and did not call any witnesses in his defense. The jury found Russell

guilty of first-degree murder, first-degree sodomy, second-degree burglary, first-degree tampering,

misdemeanor stealing, and tampering with physical evidence. He was sentenced on June 24, 2021

as a prior felony offender to life imprisonment without parole for murder, life imprisonment for

sodomy, seven years for burglary, seven years for tampering with Victim’s automobile, four years

for tampering with physical evidence, and one year for misdemeanor stealing. The sentences for

the latter four crimes were ordered to run concurrently with one another but consecutively to the

sentences for murder and sodomy which were ordered to run consecutively to one another.

The appeal follows.

Point I

In his first point on appeal, Russell argues the trial court abused its discretion in failing to

strike a juror for cause. He states that Juror 14 was not qualified because her ability to be impartial

was questionable. Russell maintains that Juror 14 never unequivocally stated that she would not

draw any inference of guilt from the defendant’s failure to testify.

“A trial court has wide discretion in determining the qualifications of members of the

venire, and on appeal the court will not disturb the trial court's ruling on a challenge for cause

absent a clear abuse of discretion and a real probability of injury to the complaining party.” State

v. Savage,

609 S.W.3d 71

, 83 (Mo. App. W.D. 2020) (internal quotation marks omitted). “Because

the trial court is in a better position to determine a venireman’s ability to impartially follow the

                                                  3
law, doubts as to the trial court's findings will be resolved in its favor.”

Id.

 (internal quotation

marks omitted). “[D]enial by a trial court of a legitimate request by an accused to excuse for cause

a partial or prejudiced venireperson constitutes reversible error.”

Id.

 (internal quotation marks

omitted). “A legitimate challenge is made where it clearly appears from the evidence that the

venireperson is prejudiced and, as a result, cannot be fair and impartial.”

Id.

 (internal quotation

marks omitted).

       “Whether a prospective juror is prejudiced and cannot be fair and impartial must be

determined on the basis of the entire examination and not just a single response.”

Id.

 (internal

quotation marks omitted). “[W]hen the examination leaves uncertainty about the venireperson’s

ability to be fair and impartial, the trial court has a duty to make an independent inquiry regarding

fitness for jury service.”

Id.

 (internal quotation marks omitted). “The critical question on a

challenge for cause is whether the venireperson unequivocally indicated an ability to evaluate the

evidence fairly and impartially.”

Id.

(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.”

Id. at 84 (internal quotation marks omitted). “A venireperson who expresses a bias against a

defendant for exercising his Fifth Amendment right not to testify is not considered fair and

impartial, making him subject to being struck for cause … unless the potential juror is thereafter

rehabilitated.” Id. (internal quotation marks and citations omitted). The “rehabilitation of a

prospective juror must be responsive to the indication of partiality and provide a clear, unequivocal

assurance that the juror would not be partial.” Id. (internal quotation marks omitted).

The trial court limited voir dire to one hour and twenty minutes for each side. Defense

counsel argued that this time was not sufficient given the serious nature of the charges. During

4
voir dire, defense counsel asked the panel questions regarding the defendant’s right not to testify

and whether any member would have difficulty following the law that no presumption of guilt may

be drawn from a defendant’s failure to testify. No venireperson responded. After questioning, the

panel was sent home and told that those chosen for the jury would later be notified.

The next morning, the trial court informed the parties that when Juror 14 was notified she

would serve on the jury, she said she wished defense counsel would have asked an additional

question at the end. She said that as she thought about it, she got more concerned about the

defendant not taking the stand. Juror 14 was brought into the courtroom and the following

occurred:

THE COURT: Do you mind telling me what you shared with Mr. Smith.

JUROR NO. 14: The --- later on, you know how when [defense counsel] presented
the thing about the gentleman not testifying and stuff, that kind of bothered me
because I wouldn’t even have thought that that wasn’t a possibility and it just kept
brewing in my mind. It’s like, well, why doesn’t he have to? I know it’s the law,
but I never thought that he wouldn’t. And that would always just be in the back of
my mind; if he was questioned about something, what would his answers be.
…
THE COURT: So the question is – the law is he doesn’t have to, as Mr. Berrigan
told you that. And if he did not and the law is that, would you hold that against him?

JUROR NO. 14: No. Because that’s right. But I just never thought that was a
possibility, you know.

THE COURT: All right. But given the fact that is a possibility, and that is the law
–

JUROR NO. 14: Uh-huh.

THE COURT: -- are you able to sit in this case, hear the evidence, give him the
presumption of innocence knowing that that’s a possibility, and wipe that totally
out of your head because he has that right?

JUROR NO. 14: Yes. The longer I thought about it yesterday, I’m like, just put it
aside. You know, just put yourself just in the courtroom and don’t think about
anything else.

5
THE COURT: Okay. So as you stand here this morning, knowing that that is the
law, knowing that he’s presumed innocent, knowing that he does not have to testify,
where does that put you?

JUROR NO. 14: I presume he’s innocent until I know – until I find out otherwise.
…

PROSECUTOR: I just want to make sure that I’m clear…. so your question or
concern was not understanding why he didn’t have to testify and you might not get
that answer?

JUROR NO. 14: Right.

PROSECUTOR: But what I’m hearing from you is that since that is the law, since
that is the instruction and if the court instructs you that way, that’s not going to be
a thing that you consider, you’ll follow the instructions of the court?

JUROR NO. 14: I can follow the instructions of the court.

DEFENSE COUNSEL: What I understood … this concept about not testifying on
a case in which he’s charged with first degree murder.

JUROR NO. 14: Uh-huh.

DEFENSE COUNSEL: When you thought about it, that troubled you enough to
call, or I’m sorry. Mr. Smith [the clerk] called you, to tell him during the call, hey,
I’ve got a problem; is that fair?

JUROR NO. 14: That is fair.

DEFENSE COUNSEL: Okay. I wrote this down just a moment ago: I know it’s the
law, but that would just be in the back of my mind.

JUROR NO. 14: No. I mean I know it’s the law, but there’s nothing we can do
about changing the law, so I have to put it out of my mind and don’t even present
that in my mind. I just would have to put it out of my mind; not even think about
that.

DEFENSE COUNSEL: It’s kind of like I asked yesterday. That is kind of what the
law says.

JUROR NO. 14: Uh-huh.

6
DEFENSE COUNSEL: But sometimes we don’t always agree with every single
thing about the law, which is –

JUROR NO. 14: Sure.

DEFENSE COUNSEL: – fine. So if this is kind of in the back of your mind, you
could see how I might be concerned about that.

JUROR NO. 14: I can see that.

DEFENSE COUNSEL: I know you told the judge, well, I can be fair. I can listen
to the evidence and make a decision.

JUROR NO. 14: Uh-huh.

DEFENSE COUNSEL: But if [Defendant] does not testify, and frankly, that’s –
we’re anticipating he won’t, are you a hundred percent confident that in the back
of your mind you’re not going to be wondering why? Why isn’t he testifying?

JUROR NO. 14: No.

DEFENSE COUNSEL: No.

THE COURT: Well, let’s get a clarification on that. He asked you were you a
hundred percent confident. You said no. So I want to make sure we’re on the same
page with that answer because that could be looked at two ways.

JUROR NO. 14: Okay.

THE COURT: Are you a hundred percent that you can, yes, I am or no, I can’t?

JUROR NO. 14: Put it out my mind?

THE COURT: Yes.

JUROR NO. 14: Yes, I can put it out of my mind. You can’t change anything.

THE COURT: So you are a hundred percent sure that you can put that out of your
mind?

JUROR NO. 14: Yes.

THE COURT: Follow the court’s instructions?

JUROR NO. 14: Yes.

7
THE COURT: Knowing that that is the law?

JUROR NO. 14: Yes.

Defense counsel moved to strike Juror 14 for cause. The trial court overruled the motion, and

Juror 14 served on the jury. Russell did not testify at trial.

On appeal, Russell attaches significance to the fact that Juror 14 was so worried about the

defendant not testifying that she raised the concern about the defendant not testifying herself when

notified she would be serving on the jury. Russell also claims that Juror 14 never unequivocally

stated that she would not draw any inference of guilt from defendant’s failure to testify. He

maintains that Juror 14 was not sufficiently rehabilitated.

We disagree. Juror 14 never stated a belief that an innocent person would testify. Instead,

she stated she assumed the defendant would testify and was confused about why he would not.

Juror 14 stated that she was one hundred percent certain that she could put the defendant’s decision

to not testify out of her mind and follow the court’s instructions. She also stated that she would

presume the defendant was innocent unless proven otherwise. Looking at the entire examination,

we find that Juror 14 was rehabilitated and provided clear, unequivocal assurance that she would

not be partial. See id. (juror was rehabilitated where the juror “clearly stated that they could serve

impartially and without bias, notwithstanding a hope and desire that [the defendant] would

testify”); contrast State v. Wilson,

998 S.W.2d 202, 206

 (Mo. App. W.D. 1999) (where juror stated

he would infer guilt or be affected if the defendant failed to testify, merely having the juror agree

to follow the court’s instructions was insufficient rehabilitation); contrast State v. Stewart,

692 S.W.2d 295, 299

 (Mo. banc 1985) (juror was not rehabilitated where she never abandoned her

belief that an innocent man would testify in his own defense).


                                                   8
       The point is denied.

                                               Point II

       In his second point on appeal, Russell argues that the trial court erred in effectively

excluding the public from voir dire. He states that the seats were taped off, the doors were closed,

and live streaming to the public was not available. Russell claims that this is a structural error that

requires reversal.

       “In all criminal prosecutions, defendants have a constitutional right to a public trial.” State

v. Jones,

530 S.W.3d 525, 529

 (Mo. App. E.D. 2017). “The Supreme Court of the United States

has deemed it well settled that “the Sixth Amendment right to a public trial extends to the voir

dire of prospective jurors.”