State of Missouri vs. Justin A. Fields

Kansas City, MO - Criminal defense attorney represented Justin A. Fields with a attempted forcible rape charge.

On the night of June 21, 2013, L.H. and her friends attended a party. Fields attended that

same party. As the party came to an end and L.H.'s friends left, L.H. asked her cousin if he could

"On appeal from a jury-tried case, we view the facts in the light most favorable to the jury's verdict.” State

v. Demark, 581 S.W.3d 69, 73 n.2 (Mo. App. W.D. 2019) (internal quotation marks omitted).

2 Pursuant to section 595.226, we do not use the victim's name in this opinion. All statutory references are

to the REVISED STATUTES OF MISSOURI 2016, as supplemented.2

take her home. Her cousin agreed to give her a ride home and informed L.H. that his friend, Fields,

would be riding along with them. The three of them rode together in the front seat of the small

sports car that L.H.'s cousin was driving. During the ride to L.H.'s home, Fields repeatedly groped

L.H. by rubbing on her thighs. L.H. asked him to stop and removed his hand multiple times.

When they arrived at L.H.'s home, L.H.'s cousin asked if he and Fields could stay awhile

because they were too drunk to continue to drive. L.H. agreed to allow them to stay and told them

that they could sleep on the couch. L.H. went to her bedroom and called her boyfriend, who was

at work. Fields, thereafter, entered L.H.'s bedroom, to which L.H. responded by telling Fields to

get out and that she was on the phone with her boyfriend. Fields did leave her room after that

exchange but returned a short time later. When he returned, he closed the door behind him and,

believing he had locked it, grabbed L.H. around her waist. Although L.H. told him to leave, he

did not leave.

Fields pushed L.H. down on the bed and attempted to have sex with her. But L.H. resisted

and tried to push Fields off of her. L.H. called out for her cousin, but Fields told her that her cousin

could not hear her. Fields proceeded to kiss and lick L.H. Although she resisted his aggression,

Fields responded by shoving L.H. onto her stomach. Fields then attempted to penetrate her with

his penis, but L.H.'s resistance prevented him from continuing the assault.

L.H. broke free of Fields's grasp and ran to the kitchen to retrieve a knife. She then

screamed for her cousin and Fields to leave her home, and told them that she was calling the police.

Fields and L.H.'s cousin hurriedly left her apartment. L.H rushed to call the police while

simultaneously chasing down the vehicle Fields occupied to record the license plate of the car.

The police soon arrived and L.H. was taken to the hospital where she underwent physical and

psychological examinations. Fields's DNA was subsequently recovered from L.H.'s body.3

On December 16, 2016, a grand jury indicted Fields on one count of forcible rape and one

count of forcible sodomy. The jury trial commenced on April 2, 2018. On voir dire the following

exchange occurred:

[Prosecutor]: I would like for you to think of a major life event, say getting married,

having a baby, getting a new job and talking to people about that big life event. Do

you think you would tell that story the same every single time that you talk about

that major life event? Does anybody here think—

[Defense Counsel]: Judge, can we approach?

The Court: You may.

(The following proceedings held at sidebar.)

[Defense Counsel]: I don't understand how this line of questioning is going to the

heart of who can be fair and impartial in this case.

The Court: I overrule the objection. I understand the question as phrased. Because

it's asking about an element of the credibility issue and I've heard the question

before and thought it was appropriate. Overruled.

The prosecutor then followed up by asking if anyone would hold it against any of the witnesses if

"they can't tell the story the exact same with the exact same detail every single time” and no one

on the venire panel responded. The prosecutor then asked the venire panel whether any of them

had been to a haunted house (i.e., a scary event); after which she asked one of the responding

venirepersons whether they could remember specific details about the experience, and defense

counsel again objected:

I don't understand where she's going with this line of questioning. She's asking

someone about a haunted house and what they remember. How does that go to

whether or not this person can be fair and impartial in this case and judge the

credibility of witnesses?

Again, the trial court overruled the objection. The question drew mixed reactions. Some

venirepersons responded that they could not remember all the specific details, but others responded

that if it was a "major life event,” they would recall those details.4

At the conclusion of the jury trial, Fields was convicted on count one of the lesser-included

offense of attempted forcible rape and acquitted on count two of the charge of forcible sodomy.

Fields filed a motion for a new trial after the verdict in which he argued that the trial court erred

in overruling his objection during voir dire. The motion was denied and, thereafter, Fields was

sentenced to eighteen years' imprisonment in the Department of Corrections.

Fields timely appeals.

Analysis

I.

Fields asserts one point on appeal. He contends that the trial court erred in overruling his

objection to the prosecutor's above-recited line of questions during voir dire. On appeal, Fields

claims that the question "argued the State's theory of the case and sought a commitment . . . thereby

pre-conditioning the jurors.” However, this is not the same objection that Fields asserted to the

trial court during voir dire.

During voir dire, Fields's objection was, "I don't understand how this line of questioning

is going to the heart of who can be fair and impartial in this case” and in the second objection to

the haunted house question, Fields added, "[h]ow does that go to whether or not this person can . . .

judge the credibility of witnesses.”

The theory upon which the objection was made must be the same theory that is presented

in the motion for a new trial and the same theory that is raised on appeal. State v. Lewis, 243

S.W.3d 523, 524 (Mo. App. W.D. 2008) (citing State v. Tisius, 92 S.W.3d 751, 767 (Mo. banc

2002)). An appellant may not "broaden or change allegations of error on appeal.” Id. (citing State

v. Cartwright, 17 S.W.3d 149, 154 (Mo. App. E.D. 2000)).5

Fields has not maintained the same theory for his objections below as compared to his

objection lodged on appeal. During voir dire, Fields objected that the question did not go "to the

heart of who can be fair and impartial”—essentially arguing that the prosecutor's questions were

not relevant to the purposes of a voir dire examination. But on appeal, Fields asserts an expanded

basis for his objection—that the question "argued the State's theory of the case and sought a

commitment . . . thereby pre-conditioning the jurors.” Because an appellant is not permitted to

"broaden or change allegations of error on appeal,” Lewis, 243 S.W.3d at 524, Fields has not

preserved his current claim of error for appellate review.

Where a claim of error is not properly preserved for appellate review, we may review an

appellant's claim for plain error. State v. Clay, 533 S.W.3d 710, 718 (Mo. banc 2017). "[P]lain

errors affecting substantial rights may be considered in the discretion of the court when the court

finds that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 30.20; State v.

Johnson, 524 S.W.3d 505, 513 (Mo. banc 2017). Under the plain error standard of review, we

must first determine whether the claimed error is, in fact, plain error affecting substantial rights.

Id. "An error is plain if it is 'evident, obvious, and clear.'” Id. If plain error affecting substantial

rights is found, we must next determine whether the error resulted in manifest injustice or a

miscarriage of justice. Id. "'Manifest injustice is determined by the facts and circumstances of

the case, and the defendant bears the burden of establishing manifest injustice.'” Id. (quoting State

v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006)). Here, we conclude that the trial court did not

err, plainly or otherwise, nor can Fields establish any manifest injustice to the prosecutor's line of

questioning during voir dire.

Though "[a] defendant is entitled to a fair and impartial jury,” State v. Celian, 613 S.W.3d

380, 385 (Mo. App. E.D. 2020) (citing State v. Clark, 981 S.W.2d 143, 146 (Mo. banc 1998)), and 6

"'[t]he purpose of voir dire is to discover bias or prejudice in order to select a fair and impartial

jury,'” State v. Conaway, 557 S.W.3d 372, 377 (Mo. App. W.D. 2018) (quoting Clark, 981 S.W.2d

at 146), "[t]here is no rigid formula for an adequate voir dire.” State v. Ousley, 419 S.W.3d 65, 73

(Mo. banc 2013). "Consequently, a liberal latitude is allowed in the examination of jurors, as long

as the scope of voir dire remains commensurate with its purpose to discover bias or prejudice in

order to select a fair and impartial jury.” Id.; see also Clark, 981 S.W.2d at 146 (explaining that

the trial court is given wide discretion over the examination of prospective jurors during voir dire).

Bias or prejudice often cannot be ferreted out with "general fairness and follow-the-law

questions.” State v. Nicklasson, 967 S.W.2d 596, 611 (Mo. banc 1988). Thus, "[s]ome inquiry

into relevant and critical facts of the case is essential to the search for bias.” State v. Ezell, 233

S.W.3d 251, 253 (Mo. App. W.D. 2007). A critical fact is a fact that has the substantial potential

to expose a disqualifying bias. Clark, 981 S.W.2d at 147. In addition to exposing relevant and

critical facts, "[i]t is proper to ask venirepersons questions to determine whether they have any

preconceived notions about the law which would impede their ability to follow instructions.” State

v. Cummings, 134 S.W.3d 94, 108 (Mo. App. S.D. 2004). Counsel may not, however, try the case

on voir dire, seek to precondition jurors to react a certain way, or elicit a commitment from the

jurors. Ousley, 419 S.W.3d at 73; see also State v. Holmquest, 243 S.W.3d 444, 451 (Mo. App.

W.D. 2007).

Contrary to his objections below during voir dire, the prosecutor's questioning was aimed

at uncovering whether the venire panel could be fair and impartial. The prosecutor's subject line

of questioning objected to did not require the venire panel to speculate on the weight they might

give to certain testimony, as Fields asserted in his motion for a new trial. Nor did the subject

questions objected to seek to precondition the venire panel or elicit a commitment from prospective 7

jurors, as Fields now claims on appeal. Instead, the questions sought to uncover bias by eliciting

whether the venire panel could fairly and impartially judge a witness's credibility in accordance

with the trial court's credibility jury instruction.3

See State v. Wilson, 998 S.W.2d 202, 205 (Mo.

App. W.D. 1999) (explaining that where a juror has demonstrated that they cannot follow the trial

court's instruction, he or she must be stricken).

In comparison, in State v. Norton, 681 S.W.2d 497 (Mo. App. E.D. 1984), the prosecutor

asked, "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?” The Court held that that question was

improper because "[i]t was a subtle attempt to commit the jurors.” Id. at 499. The Court further

noted that questions "requiring prospective jurors to 'agree' with some proposition stands in

danger of violating the proscription against seeking commitments during voir dire examination.”

Id. ("[E]ven though the subject matter may be appropriate for voir dire interrogation, the manner

of asking, the phrasing of the question, may render it improper.”). The fundamental difference

between the question in Norton and the prosecutor's question here is that, here, the question did

not seek to commit the jurors, subtly or otherwise.

Similarly, in Celian, the Court found that the prosecution improperly described "in depth

what it believed its evidence would be and how that evidence inculpated Celian.” Celian, 613

S.W.3d at 387. The prosecutor in Celian made statements and asked questions wherein he or she



3 The instruction from the trial court about witness credibility stated:

In your determination of the facts, you alone must decide upon the believability of the witnesses and

the weight and value of the evidence.

In determining the believability of a witness and the weight to be given to testimony of the

witness, you may take into consideration the witness'[s] manner while testifying; the ability and

opportunity of the witness to observe and remember any matter about which testimony is given; any

interest, bias, or prejudice the witness may have; the reasonableness of the witness'[s] testimony

considered in the light of all of the evidence in the case; and any other matter that has a tendency in

reason to prove or disprove the truthfulness of the testimony of the witness.8

stated "our evidence will show,” "the State's evidence will be,” "does everybody agree then,” and

"[w]ould everybody agree with that general proposition?” Id. at 383. The prosecutor even went

so far as to describe the State's theory regarding how the crime occurred. Id. ("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.”). Here, the prosecutor's question

was vastly different than those that were employed in Celian. The prosecutor in the present case

did not divulge any critical or non-critical facts or the State's evidence regarding such facts in such

a way as to seek a commitment from the venire panel as to the State's case in chief.

Conversely, this case is akin to Ezell, wherein the prosecutor asked whether any member

of the venire panel would automatically disbelieve the testimony of the child-victim because she

did not report the abuse until months later. Ezell, 233 S.W.3d at 252. We held that it was proper

to ask whether any venireperson would automatically dismiss such a late charge by a child-victim

without hearing the evidence. Id. at 253. The prosecutor here, just as in Ezell, was entitled to ask

whether any member of the venire panel would automatically disbelieve a witness that could not

describe a set of facts in the identical fashion every time, in contravention of the breadth and scope

of the numerous credibility considerations that the trial court's credibility instruction to the jury

implicated.4

We, therefore, conclude that there was no error in the trial court's ruling regarding voir dire,

plain or otherwise.

We likewise conclude that the jury's verdict, in itself, demonstrates that even were we to

conclude that the trial court's ruling was erroneous, which we do not, Fields cannot demonstrate



4 Notably, Fields did not object at trial, and does not challenge on appeal, the question by which the prosecutor

directly asked jurors whether they would "hold it against the State's witnesses if they can't tell the story the exact

same with the exact same detail every single time.” If that question was unobjectionable, we fail to see how the

prosecutor's use of hypotheticals to explore the same issue could constitute reversible error.9

any manifest injustice. For, here, the jury clearly did not credit the victim's testimony in the

fashion that the prosecution had hoped for, acquitting Fields of the charged offenses of forcible

rape and forcible sodomy (the victim had also described vaginal licking and penetration by Fields)

and only convicting Fields of the lesser-included offense of attempted forcible rape. Cf. Norton,

681 S.W.2d at 499 ("[Q]uestions related only to the sexual offenses and the jury found the

defendant not guilty of those crimes. Obviously, he suffered no injury . . . .”).

Fields's point on appeal is denied.

Finding no error below, plain or otherwise, we affirm the judgment of the trial court.