State of Missouri, Respondent, vs. Mark C. Brandolese, Appellant.

STATE OF MISSOURI, ) Opinion issued June 30, 2020 ) Respondent, ) ) v. ) No. SC97697 ) MARK C. BRAN DO LESE, ) ) Ap p e lla nt. ) A PPEAL FROM THE CIRCUIT COURT OF PETTIS COUNTY The Honorable Robert L. Koffman, Judge Mark C. Brandolese appeals from the circuit court's judgment convicting him of one count of second-degree domestic assault and one count of armed crimina l actio n. Brandolese raises six points of error, challenging the circuit court's failure to disqualify a juror, the jury instruct io n submit ted on self-d e fe nse, the circuit court's response to the jury's question regarding the mental state for domestic assault, and two evidentiary rulings. The circuit court's judgme nt is a ffir me d. 1

1 This C ourt has jurisdictio n under article V, section 10 of the Missouri C onstitution.

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Factual and Procedural History

Brandolese and C.E. resided together as roommates. In March 2016, a neighb or called the police after C.E. appeared at the neighbo r's home with blood on his face. C.E. repeatedly told the neighbo r Brando le s e hit him in the he a d with a cane. Officer Todd Nappe responded to the neighb or's ho me and spoke to C.E., who appeared intoxicated. C.E. stated Brandolese cut him, and his injur ie s were photograp he d. Officer Nappe a ls o observed a cut across C.E.'s chest. O ffic er Nappe followed a trail of blood from the neighbor 's home to the apartment where Brandolese and C.E. resided. When O ffic e r Nappe spoke to Brandolese about the incident, Brandolese told Officer Nappe that, while he was asleep in a recline r, C.E. approached him and punched him in the face. Brandolese woke up, grabbed his walking cane, and hit C .E. with it . Brandolese stated the altercation moved into the bathroom, at which point Brandolese pushed C .E. into a vanit y mirror, causing it to break. Brandolese admitted to Officer Nappe he "slashed" C.E. with a knife. Officer Nappe did not observe any visible marks on Brandolese consistent with his account of being punched in the face; however, Brando le s e had blood on his left hand. O ffic e r Nappe seized a blood-stained walking cane and a s ma ll folding pocket knife. Brandolese was arrested and charged with firs t-degree domestic assault, armed criminal action, and unlawful use of a weapon. 2 At tria l, C.E. did not testify. Brandolese asserted self-d e fe nse but submitted outdated and improper self-defense instructions to the

2 The unlawful use of a weapon charge was dismissed prior to trial.

3 court. The circuit court submitted to the jury a s e lf-defe nse instruc t io n tendered by the State that was also an outdated version of the pattern instruct io n. The jury returned a verdict finding Brandolese guilty of a lesser-included offense, second-degree domestic assault, and armed criminal action. The circuit court sentenced Brandolese as a prior and persistent offender to concurrent terms of 15 years' imprisonment for domestic assault and 10 years' imprisonment for armed criminal action. Brandolese appeals. 3

I.Juror Dis qualificatio n unde r Se ction 494.470.1 4 In his first point, Brandolese argues the circuit court plainly erred in failing to strik e for cause Juror No. 16 because she was the sister of an assistant prosecuting attorney who participated in Brandolese's case. Brandolese claims Juror No. 16 was statutoril y disqualified fro m servin g on the jury pursuant to section 494.470.1, and the circuit court's rulin g vio la te d his right to a fa ir a nd imp a rt ia l jury requirin g reversal of his convict io n and a new trial. All parties agree that Juror No. 16 is related to Robert Anthony Farkas, who served as an assistant prosecuting attorney in Pettis County where Brandolese was convic t e d. Farkas signed the complaint charging Brandolese. Docket entries indicate Farkas appeare d on the State's behalf in Brandolese's case on March 22, April 12, and May 17, 2016. On June 1, 2016, a grand jury indicted Brandoles e. Docket entries do not contain any reference 3 Other relevant facts will be discussed as necessary in the appropriate sections of this o p inio n. 4 All statutory references are to RSMo Supp. 2013 unless otherwise indicated.

4 to Farkas participa ting in the matter after Brandolese's indictment was returned, and Farkas did not participate in Brandolese's tria l in M a y 2 0 1 7. P hillip S a wye r, Pettis C ounty's elected prosecuting attorney, represented the State at Brandolese 's tria l. During jury selection, Juror No. 16 responded to a question posed by defense counsel about being a c rime vic tim. After Juror No. 16 gave her response to the question, the following exchange took place: [Defense Counsel]: I notice your last name. Are you a relative of Tony [F]arkas? Juror 16: Yes. That's my brother. [D efense Counsel]: So your brother is a prosecutor? Juror 16: Yeah. Neither party questioned Juror No. 16 furt her about her re lat ionship wit h her brother, prior knowledge of the case due to the relat ionship, or whether the relat ionship would affect her ability to be fair and impartial. Wh ile asserting ch allenges fo r cause, Brandolese made a contemporaneous objection to Juror No. 16 being seated on the jury because she was Farkas' sister, but he did not argue or claim Juror No. 16 was statutorily disqualified as authority for striking h er. The discussion was limited to Juror's No. 16's ability to be fair and impartial and included the following exchange: The C ourt: Strikes for the defense? [Defense Counsel]: Farkas' sister, Number 16, I think she should go fo r cause. T he C ourt: Again, the question wasn't asked –

5 [The State]: There was no question. The C ourt: -- to delve into why she couldn't be fair. It just -- all the question was, she's Tony Farkas' sister, nothing on why she can't be fair. I' m no t taking that one for cause. [Defense Counsel]: Even though her beloved brother works for the prosecutor. The C ourt: That's great. [Defense Counsel]: Okay. The C ourt: I don't even know if it's a beloved brother. I didn't hear any evidence to that, either. The questions that would prejudice her have no t been asked. She's giving you something that causes you to strike her fo r preemptory challenge, I would agree, but for cause, I haven't heard it. O verruled. Defense counsel did not use a peremptory strike to remove Juror No. 16, and she served on the jury. Brandolese's c la im o f e rro r on this issue was not included in his motion for new trial and at no time during the proceedings before this appeal did Brandolese alle ge Juror No. 16 was statutorily disqualified fro m servin g on the jury pursuant to section 494.070.1. Because Brandolese did not bring this alleged error to the circuit court ' s attention, Brandolese's claim is reviewed for plain error under Rule 30.20. 5

Standard of Review Generally, this Court does not review unpreserved claims of error. State v. Cella, 32 S.W.3d 114, 117 (Mo. banc 2000). Rule 30.20 alters the general rule by giving appellate courts discretion to review "p la in errors affecting substantial rights may be considered in 5 Brandolese concedes his claim of error was not preserved and seeks plain error review fro m this C o urt.

6 the discretion of the court . . . when the court finds that manife st injust ice or miscarr i a ge of justice has resulted therefrom." Rule 30.20. "Plain error review is discretionary, and this C ourt will not review a claim for plain error unless the claimed error 'faciall y establishes substantial grounds for believing that manifest injust ice o r mis c a rr ia ge o f justice has resulted.'" Clay, 533 S.W.3d 710, 714 (Mo. banc 2017) (quoting State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995), and Rule 30.20). "The plain langua ge o f Rule 30.20 demonstrates that not every allegation of plain error is entitled to review." State v .Nathan, 404 S.W.3d 253, 269 (Mo. banc 2013). "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 other w is e preserved for appellate review." State v. Jones, 427 S.W.3d 191, 195 (Mo. banc 2014). Unless manifest injustice or a mis c a rr ia ge o f justice is shown, an appellate court should "decline to review for plain error under Rule 30.20." Id. at 196. Finally, "the defendant bears the burden of demonstrating ma nife s t injust ice entitling him to" plain error revie w. State v. Oates, 540 S.W.3d 858, 863 (Mo. banc 2018) (quoting State v. Bax t er, 204 S.W.3d 650, 652 (Mo. banc 2006)). Analysis Section 494.470.1 provides, in pertinent part, "no person who is kin to ... the inj ur e d party, accused, or prosecuting or circuit attorney in a criminal case within the fourth degre e of consanguinity or affinity shall be sworn as a juror in the same cause." Brandolese argues his challenge to strike Juror No. 16 for cause should have been sustained pursuant to section 494.470.1. Brandolese contends the statute's use of "prosecuting or circuit attorney" re fe r s to any attorney representing the State who participated in the prosecution of the case,

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making Juror No. 16 disqualified to serve on the jury. The State contends "prosecuting or circuit attorney" as used in section 494.470.1 a p p lie s only to the elected prosecuting attorney, not assistant prosecuting attorneys. Juror No. 16's brother was not the elected prosecutor, so the State argues the statute does not disqualify Juror No. 16. This C ourt, however, need not decide whether the circuit court's failure to sustain Brandolese's challenge to strike Juror No. 16 for cause violated section 494.470.1 because Brandolese has not demonstrated the alleged error led to manifes t injustice warranting pla in error review. Rule 30.20. Assuming, without deciding, whether section 494.470.1 applie s to the facts of this case and the circuit court erred in not s trik in g Juror No. 16, Brandolese mus t s till "facially establish[] substantia l grounds for believing that manifest injus t ice or miscarriage of justice has resulted" to be entitled to plain error review and relief. Clay, 533 S.W.3d at 714; Oates, 540 S.W.3d at 863. Although Brandolese c la ims the circuit court's failure to disqualify Juror No. 16 pursuant to section 494.470.1 violated his right to a fa ir a nd imp a rt ia l jury re s ult in g in manife st injustice, there is no evidence o r a lle ga t i o n beyond the alleged unpreserved error itself that Brandolese suffer ed an unfa ir or unjust tria l. Brandolese, therefore, has not met his burden to establis h manife st injustice. To be sure, a juror who cannot be fair and impartial should be stricken for cause to ensure a fair and just trial. State v. Clark-Ram sey, 88 S.W.3d 484, 488-89 (Mo. App. 2002). However, Brandolese does not allege nor demonstrate that Juror No. 16 was unfair or partial causing a manifest injust ice in his trial. Brandolese points to no statement by Juro r No. 16 that she was biased or partisan due to her relationship with her brother, nor does he present any other evidence of unfa ir ne ss, nor could he. Juror No. 16's only relevant

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statement during jury selection responded to a question whether she was related to Farkas, and no further questions were posed to Juror No. 16 about her relationship with her brother or its effect on her ability to render an impartial and unbiased verdict. Previous l y, this C ourt has not found reversib le error after the defendant failed to ask the "obvio us questions " to show prejudice by a member of the jury panel. See State v. Walton, 796 S.W.2d 374, 378-79 (Mo. banc 1990) (A juror who had "acquaintance and conversat io n" about the case "was not shown to have formed any opinion or to have been exposed to any facts indicating defendant's guilt" because the exposure to the case "may have been prejudic ia l or may have been innoc uo us." To find prejudice "require s one to engage in assumptions not supported by the record."); see also Grimm v. Gargis, 303 S.W.2d 43, 49- 50 (Mo. 1957) (find ing no error in refusing to strike a potential juror who was a longt ime frie nd o f the p la int if f a nd vis it e d the p la int i ff in the ho s p ita l while p la int i ff wa s re c o ve r in g from injuries that were at issue in the case). Because Brandolese has not shown or even alleged Juror No. 16 was biased or unfair, he cannot establish manifest injustice warranting plain error review and relief. Moreover, Brandolese has not shown or even alleged that Juror No. 16 was aware of Farkas' participation in Brandolese's pretrial proceedings. Juror No. 16's only relevant statement responded to a question whether she was related to Farkas. The question did not say or suggest Farkas participated in the prosecutio n of the case at any po int. The defense asked Juror No. 16 only to clarify that her brother is a prosecutor. Brandolese and the d is s e nt in g o p inio n c la im section 494.470.1 was violated not solely because Juror No. 16 was related to an assistant prosecutor but a ls o because Juror No. 16 was related to an

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assistant prosecutor that participated in the prosecution of his case. 6 This C ourt canno t p re s ume o r impute b ia s to Juror No. 16 witho ut s o me evidence or suggest io n the juror kne w her brother was involve d in an early stage of the prosecution. 7 See State v. Miller, 56 S.W.2d 92, 96 (Mo. 1932) (finding no prejudicial error in denying a new trial because "[a] juror cannot be prejudiced by a fact unknown to him"); State v. Chandler, 314 S.W.2d 897, 900 (Mo. 1958) (find ing no prejudic ia l error in denying a new trial when the source o f presumed bias was unknown to the disqualified juror); Cf. State v. Stewart, 246 S.W. 936, 939-40 (Mo. 1922) (holding no error in failing to disquali fy a juror who was unaware he was distantly related to the victim). "While the fact of relationship disqualifies the juror, it is really knowledge of such fact on the part of the juror that may be expected to and in fact does make such juror biased or prejudiced." Miller, 56 S.W.2d at 96; see also

6 Even during the discuss io n with the circuit court about Brandolese's challenge for cause, the defense did not mention that Farkas briefly worked on the case more than a year before trial. The challenge asserted only that Juror No. 16 should be stricken for cause because her brother worked "for the prosecutor." In fact, on review of the record on appeal, it is not clear whether the defense, the State, or the court knew Farkas participated in the p re limi na r y proceedings o f Brandolese's case. The challenge for cause was based so le ly on Juror No. 16's relationship to an assistant prosecutor, not to an assistant prosecutor who participated in the case at hand. But both Brandolese and the dissenting opinion would find the circuit court committed plain error as a result of this fact that was never brought to the court's attentio n. 7 The only presumption this Court's prior holdings require is that Juror No. 16 was a fair and impartial juror. This Court has stated jurors are presumed to have followed the ins truc t io n s re c e ive d fro m the c o urt d urin g tria l. State v. Storey, 901 S.W.2d 886, 892 (Mo. banc 1995). Instruction No. 1 instructed Juror No. 16 and the other members of the jury that their verdict "must be based only on the evidence presented to you in the proceedings in the courtroom. " Further, Instruct io n N o. 1 directly commanded jurors to "perform your duties without prejudice or fear, and solely from a fair and impartial consideration of the whole case." This C ourt, therefore, cannot presume Juror No. 16 was biased or partial in the absence of evidence supporting that conclusio n; rather, this C ourt must presume she performed her duties as a juror fairly and impartially as Instruction No. 1 commanded. Id.

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Chandler, 314 S.W.2d at 900. While Juror No. 16 knew of her relationship to Farkas, the record does not show she knew of Farkas' invo lve me nt in the case. As this C ourt has explained, a juror cannot be prejudiced by a fact unknown to her. Brandolese argues and concedes that, but for her brother's participa tio n in his case, Juror No. 16 would have been eligible to serve as a juror pursuant to section 494.470.1. Imp lic it in this position is the supposition that if Juror No. 16's brother had not participa ted in the case, Brandolese would have enjoyed a fair and impart ia l jury even though Juro r No. 16 knew her brother worked in the same office that prosecuted Brandolese. The injustice alleged by Brandolese, therefore, hinges on Farkas' participation in Brandolese 's case – a fact unknown to Juror No. 16. As Miller and Chandler instruc t, ho we ve r, it is the knowledge of the disqualifying fact that creates the injus t ic e, not the mere existence of the fact. Because there is no evidence Juror No. 16 knew her brother participated in the case, there is no basis warrant ing a find ing of prejudice under this Court's decisions in Mille r and Chandler. N othing in the record before this C ourt establishes Juror No. 16 caused an injus t i c e to Brandolese or prejudiced him. Brandolese does not allege and presents no evidence of unfair nes s or impart ia lit y from the juror in question. In the complete absence of evidence showing bias or partisans hip—or even evidence showing knowledge of the alleged l y disqualifying relationship—Brandolese cannot establish manifest injustice. The dissent ing opinio n recognizes the alleged violation of section 494.470.1 is limited to plain error review because Brandolese failed to include the error in his motion fo r ne w tria l. Slip op. at 3. Even after this recognit io n, the dissent ing opinio n fails to app ly

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Rule 30.20 framework and, instead, d e lve s into a full me rits a na lys is that re lie s o n unnecessary interpretations of section 494.470.1 and constitutio na l and structura l erro r arguments. This position, however, ignores Rule 30.20's exclus i vit y by jumping into a me rits a na lys is witho ut find ing manifest injust ice. Such a conclus io n is unsupported by this C ourt's precedent and the langua ge of Rule 30.20, whic h limits p la in e rro r re vie w to situations "when the court finds that manifest injustice or miscarriage of justice has resulted therefro m." As previously stated, Rule 30.20 alters the general rule that this C ourt does no t address unpreserved claims of error. It is axiomatic, then, that the only way to review an unpreserved claim of error is to comply with Rule 30.20. There is no alternative method for applying plain error review. Based on the alleged error, the dissenting opinio n, however, utilizes a different method to conduct p la in e rro r re vie w o f this c la im. The dissent ing opinio n suggests this C ourt's plain error analys is does not apply if an unpreserved statutory or cons titu t io n a l vio la t io n is s e rio us e no ugh b e c a us e the a lle g e d error, in a nd o f its e lf, e s ta b lis h e s ma nife s t injus t ic e. This assertion has no basis in Rule 30.20, which clearly states that, in the realm of plain error, it matters not what the claim of error is, only that the claim of error is unpreserved. See Rule 30.20. The dissent ing o p inio n's a s s e rtio n is a ls o b e lie d b y this C o urt's plain error precedent, which regular l y addresses both statutory and constit ut io na l claims through its well-estab lis he d plain erro r framework and not any altered standard. See Grado v. State, 559 S.W.3d 888, 899-900 (Mo. banc 2018) (applying plain error analysis to unpreserved constitutional claim of

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error); see also State v. Johnson, 524 S.W.3d 505, 511-15 (Mo. banc 2017) (applying plain error analysis to unpreserved statutory claim of error). 8

Furthermore, this Court previous ly rejected the argume nt that constitutio na l violations are subject to a different plain error analysis in State v. Howard, 540 S.W.2d 86 (Mo. banc 1976). In Howard, the defendant sought plain error review after the circuit court commented on the defendant's fa ilu re to te s tify d urin g his jury trial. Id. at 87. On appeal, it was suggested that Howard was automatically entitled to plain error relief without establis hin g manifes t injustice because of the egregio us federal constitutional violation. Id. This C ourt right l y refused this invitat io n, holding "[e]ven a federal constitutional error may be considered harmless. We will continue to review all the facts and circumstances in each case and determine on a case-to-case basis whether manifest injustice has resulted from the alleged error." Id. (inte r na l c ita tio n o mitte d ). This C ourt then utilized plain error analys is to determine a manifest injustice occurred at Howard's tria l. Id. at 87-88. Therefore, Howard stands for the proposition that all errors—whet her statutory, constit ut io na l ,

8 The unpreserved claim of structural error alleged by the dissenting opinion also does not automatically warrant reversal without a showing of manifes t injust ice. The dissent ing o p inio n acknowledges the United States Supreme Court "has several times declined to resolve whether 'structura l' errors—those that affect 'the framework within which the tria l proceeds,' —a uto ma t ica l ly satisfy the third prong of the plain-error test." Puckett v. United States, 556 U.S. 129, 140 (2009) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)) (interna l citation omitted). Moreover, federal courts do not follow Rule 30.20 and apply a different standard for conducting plain error review than Missouri courts. W hile the federal question remains open as to the application of plain error review to claims of structura l error, this Court's precedent on plain error review under Rule 30.20 is clear in requiring a showing of manifes t injust ice.

13 structura l, or based in some other source—are subject to the same treatment under this C ourt's plain error framework. To be sure, however, Brandolese suffered no constitut io na l infir m it y when Juro r No. 16 served on the jury even if she was statutorily disqualified. The Sixth and Fourte e nt h Amendme nts to the United States Constitutio n and article I, section 18(a) of the Miss o ur i Constitution guarantee a criminal defendant the right to a fair and impartial jury. State v. Clark, 981 S.W.2d 143, 146 (Mo. banc 1998). Th e c o ns titu t io n a l right to a fa ir a nd imp a rt ia l jury, however, does not itself require the exclus io n of any juror within a cert a in degree of consanguinity or with a nother personal re la tio ns h ip to one of the parties. See State v. Ervin, 835 S.W.2d 905, 915-16 (Mo. banc 1992). Absent a federal constitutio na l violation, states have the power to decide whether an error in violatio n of state statute requires automatic reversal. Riv era v . Illinois, 556 U.S. 148, 161-62 (2009). Rule 30.20 is the exclus ive means by which an appellant can seek review of any unpreserved claim of error and said claim—no matter if it is statutory, constitutio na l, structura l, or of some other origin—is evaluated by this C ourt's plain error frame wo rk without exception. A vio la t io n o f section 494.470.1 or any juror qualific atio n statute does not its e lf manifest l y insinua te that a defendant received an unfa ir and unjust tria l warrantin g p la in e rro r review and relief under Rule 30.20. 9 Under plain error review, the defendant 9 There are many other juror disqualificatio n provisio ns beyond section 494.470. Section 494.425 contains a long list of disqualifications for prospective jurors. Statutoril y disqualified jurors include : anyone under 21 years of age; a person who is not a resident of the area served by the court serving summo ns; a felon who has not had his or her c ivi l rights restored; any person on active milit ar y duty; and a judge. Absent evidence to the

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still bears the burden of establishing manifest injustice if an unqualified juror serves on a jury. Oates, 540 S.W.3d at 863. While an individual who meets the criteria for disqualification under section 494.470.1 should be disqualified and excused, failure to do so does not independe nt l y re s ult in ma nife s t injus t ic e, especially where there is no evidence the juror knew of her relative's involve me nt in the case. Therefore, Brandolese is not entitled to reversal of his conviction and a new trial because the circuit court declined to strike Juror No. 16 for cause. II. Ins tructio nal Errors In P o ints II, III, and IV , Brandolese a lle ges the circuit court erred instruc t in g the jury o n s e lf- defense and the definition of knowingly as used in a separate instruct io n. The se c la ims o f error, however, were not raised with the circuit court. The self-defense instruc t io n the circuit court gave at the State's request was based on an outdated version of the pattern instruc t io n. While Brandolese objected to giving this instruct io n, he request e d and proposed two separate self-defe nse instruct io ns that, lik e w is e , were outdated and improper. During jury deliberat io ns, the jury submit ted a written question to the cour t asking for a definition of "knowingly" as used in the second-degree domestic assault verdict director. Without objection from Brandolese, the circuit court responded to the jury's question with the follow i ng instruct io n: "You are bound by the law as it has been presented to you. This is the only answer the C ourt is allowed to give you."

contrary, manifes t injustice does not automatica lly result if a statutorily disqualified juro r serves on a jury. If this Court were to hold otherwise, appellate courts would be required to grant relief under plain error review any time a defendant raises the disqualifyin g fac t for the first time on appeal regardless of whether a challenge for cause was made.

15 Point II alleges the circuit court erred in not modifying sua sponte the self-defense ins truc t io n submitted to the jury to remove init ia l aggressor langua ge or, in the alternat i ve, to include a definition of the term "in it ia l a ggre s s o r." Point III alleges the circuit court erred in not modifying sua sponte the same s e lf-defe ns e instruct io n to include the option of non-deadly force as well as to include proper langua ge and guida nce regar d in g permissible use of deadly force. In Point IV, Brandolese alleges the circuit court erred in failing to define the term "knowingly" fo llo w in g the written question from the deliberat i ng jury. Brandolese requests plain error review of all three allegations of instruc tio na l error. Standard of Review "Instruc tio na l error requires reversal when the error is 'so prejudicia l that it deprive d the defendant of a fair trial.'" State v. Sanders, 522 S.W.3d 212, 215 (Mo. banc 2017) (quoting State v. Nash, 339 S.W.3d 500, 511-12 (Mo. banc 2011)); see also State v. Forrest, 183 S.W.3d 218, 229 (Mo. banc 2006). "All p re jud ic ia l e rro r, ho we ve r, is no t plain error, and plain errors are those which are evident, obvious, and clear." State v. Baumruk, 280 S.W.3d 600, 608 (Mo. banc 2009) (internal quotations and alteratio ns omitted). But even if the instruc t io na l error is evident, obvious and clear, the defendant mus t "demonstrate that the trial court so misdirected or failed to instruct the jury as to cause manifes t injustice or a miscarriage of justice." State v. Cooper, 215 S.W.3d 123, 125 (Mo. banc 2007). Moreover, "plain error review is discretio na r y, " and "this C ourt will not us e plain error to impose a sua sponte duty on the trial court to correct Defendant's invited errors." State v. Bolton, 371 S.W.3d 802, 806 (Mo. banc 2012).

16 Analysis Point II Brandolese alleges the circuit court plainly erred in not modifying sua sponte the State's non-complia nt jury instr uct io n either to remove "init ia l aggressor " langua ge or to provide a definition of "initial aggressor." He supposes the jury's verdict would ha ve d iffe re d without the init ia l aggressor langua ge, or if the court had provided a definition o f "init ia l aggressor." Because Brandolese requested the circuit court commit error by submitt i ng improper and non-complia nt self-defe nse instruc t io ns, he is no t e ntitle d to p la in e rro r review of this matter. Failure to submit a mandatory instruction is reversible error under plain error review when the instruc t io n is requested by the defendant and refused by the circuit court. State v. Westfall, 75 S.W.3d 278, 281 n.9 (Mo. banc 2002). However, a party invites error by submit t ing a patently incorrect instruc t io n. "It is axiomatic that a defendant may not take advantage of self-invited error or error of his own making." State v. Mayes, 63 S.W.3d 615, 632 n.6 (Mo. banc 2001) (a lte ra t io n o mitte d ). In State v. Bolden, this C o urt d e c line d to conduct plain error review and imp o s e a sua sponte duty to mo d ify a s e lf-defense jury instruc t io n when the defendant invited the error by agreeing to the ins truc t io n. 371 S.W.3d at 805-06. Brandolese did not agree to the self-defense instruct io n submitted by the circuit court, but he invited error by requesting and proposing outdated and improper self-defe ns e instruct io ns. While the case here can be distinguished fro m Bolden, this C ourt s imila r l y should "not use plain error to impose a sua sponte duty on the trial court" to instruct the jury properly when the very instructions Brandolese requested

17 the c irc uit c o urt s ub mit inv ite d and would have caused the circuit court to co mmit instruc tio na l error. Id. at 806. Even if this Court were to exercise its discretion and conduct plain error review, it cannot find manifes t injustice—let alone an "evident, obvious, and clear" error—fo r fa iling to mo d ify an instructio n that does not erroneously state the law. See Baumruk, 280 S.W.3d at 607-08. The Notes on Use for the approved pattern s e lf-defense ins truc t io n provide the init ia l-a ggre sso r langua ge should be excluded o nly if "the re is no evidence that the defendant was the initial aggressor or provoked the incident." See MAI-CR 3d 306.06 and MAI-CR 3d 306.06A, Notes on Use 4(a) (emphasis added). If there is evidence the defendant was the init ia l aggressor, the s e lf-defe ns e instruc t io n should include the init ia l- aggressor langua ge. Id. The evidence the State e lic ite d that Brandolese had no vis ib le ma rk s on his face consistent with being punched in the face suggest Brandolese, not C.E., was the initial aggressor or provocateur in the altercation and supported s ub mit t in g the init ia l aggressor langua ge. S imila r l y, Brandolese cannot establish ma nife s t injus t ic e fo r the la c k o f d e fin it io n o f init ia l a ggre s s o r. Mere speculation as to what migh t have occurred if the te rm we re d e fine d is no t s uffic ie n t to e s ta b lis h ma nife s t injus t ic e . See State v. Goodwin, 43 S.W.3d 805, 820 (Mo. banc 2001). Therefore, Brandolese fails to show how the circuit court's instruc t io n with the undefined init ia l aggressor langua ge constituted evident, obvious and clear error re s ult in g in manifes t injust ice. Point III In his third point, Brandolese alleges the circuit court erred in not sua sponte mo d ify in g the s e lf-defense instruct io n as it pertains to the use of deadly force. Brando le s e

18 argues the instruc t io n submit ted to the jury failed to reflect that the issue of whether he used deadly force was in question under the facts of the case. He contends the te rm "non-deadly" should have been included in the instruc t io n; he also complains of various other non-substa nt i ve deviatio ns from the pattern instructio n. N otably, the instruc t i o ns Brandolese proposed and s ub mit te d to the circuit court also deviated from the pattern ins truc t io n with respect to these issues. Brandolese fails again to make the required showing warranting relief under pla in error review. As in Bolden, this Court does not wish to impose a duty on the circuit court to mo d ify sua sponte a jury instruct io n when the instruc t io n Brandolese submitte d devia te d from the pattern instruction and invited the court to err in the manner claimed on appeal. Bolden, 371 S.W.3d at 806. In additio n, the submitte d instructio n did not erroneous ly state the law. The ins truc t io n o mitte d the te rm "no n-deadly" and other language from the approved patterned ins truc t io n when describing the use of force in self-defense but accurately explained the facts the jury must find "for a person lawfully to use force in self-defense." MAI-CR 3d 306.06 (eff. 1-1-07); MAI-CR 3d 306.06A (eff. 1-1-09). W hile the non-compliant ins truc t io n submitt ed by the circuit court did not suggest whether the force Brandolese use d was deadly or non-deadly, the langua ge and guida nce in the instruc t io n did not devia t e fro m the substant ive law. Therefore, Brandolese cannot e s ta b lis h an evident, obvious, and clear error that resulted in manifes t injust ice solely through non-substantive va ria t io n in the langua ge of the self-defe ns e instruct io n.

19 Point IV In his fourth point, Brandolese alleges the circuit court plainly erred in its response to the deliberating jury's request for a definition of "knowingly" as used in the verd ic t director for second-degree domestic assault. Th is verdict director required the jury to find Brandolese "knowingl y caused physica l injur y to" C.E. The instruct io n did not, however, d e fine "knowingly." The jury asked the court for a definition, noting the verdict d ire c t o r for the lesser-included offense of third-degree domestic assault inc lud e d a d e fin it ion o f "recklessly." After conferring with the parties, the court answered, "You are bound by the law as it has been presented to you. This is the only answer the Court is allowed to give you." "The response to a jury question is within the sound discretio n of the trial cour t and the practice of exchanging communications between the judge and jury is no t commended." State v. Guinn, 58 S.W.3d 538, 548 (Mo. App. 2001) (citing State v. Taylor, 408 S.W.2d 8, 10 (Mo. 1966)). "Responses that simply refer the jury to the proper instruc t io ns already given are not improper. " State v. Johnston, 957 S.W.2d 734, 752 (Mo. banc 1997). The Notes on Use for the approved pattern instruction for second-degree domestic assault provides the term "knowingl y" as used in the instruc t io n "may be defined by the court on its own motion and must be defined upon written request in proper form by the state or by the defendant." MAI-CR 3d 319.74, Notes on Use ¶8 (emphasis added).

20 Neither party requested the term be defined before the instructions were read to the jury. 10

Therefore, the verdict director was in proper form when read to the jury. When jur y instruc t io ns are correct, a court may respond to a jury's question by instruc t i ng the jury to be guided by those instruct io ns. State v. Clay, 975 S.W.2d 121, 134 (Mo. banc 1998). Brandolese fails to show an error that is evident, obvious, and clear or a ma nifes t injust ice from the circuit court's response. Because the verdict director was correct, the court's response to the jury's question was not improper. Furthermo re, Brandolese only speculates that the definition of "knowingly" would have changed the outcome of the jury's d e lib e ra t io n in his favor. This speculation does not give rise to manifest injustice. See Goodwin, 43 S.W.3d at 820. Therefore, the circuit court's response to the jury's ques t io n does not warrant re lie f und e r plain error review. III.Exclus ion of Evide nce B randolese contends the circuit court abused its discretio n in exclud ing the testimony of a defense witness about the victim, C.E.'s, "reputat io n" for vio le nc e . At tria l, Brandolese's counsel informed the circuit court he intended to call another roommate of C.E. as a witness. The witness would testify that, on a specific occasion after the altercat io n with Brandolese, C.E. drank heavily and acted viole nt l y toward the witness. Brandolese argued this evidence would support his c la im o f s e lf-d e fe ns e because the witness wo uld show C.E.'s "modus operandi" of drunkenness and violence. Outside the presence of the 10 In response to the jury's question, the State o ra lly requested the circuit court provide the approved pattern instruction definition for "knowingly," but Brandolese did not join in this request.

21 jury, the witness testifie d in a n o ffe r o f proof that he lived with C.E. for about a month and a half after C.E. was assaulted by Brandolese. The witness recounted that he once tried to pour out C.E.'s liq uo r and C.E. reacted by attacking the witness. The prosecutor objected to witness's p ro ffe red te s timo n y, and the circuit court excluded the testimony. Standard of Review The circuit court has broad discretion in a d mitt in g evidence at trial, and error will be found only fo r a clear abuse of this discretion. State v. Simmons, 955 S.W.2d 729, 737 (Mo. banc 1997). This C o urt will find a c irc uit c o urt a b us e d its d is c re tio n only when a rulin g is clearly against the logic and circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Brown, 939 S.W.2d 882, 883-84 (Mo. banc 1997) (a lte ra tio n o mitte d ). This C our t "reviews the trial court 'for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.'" State v. Zink, 181 S.W.3d 66, 73 (Mo. banc 2005) (quoting State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999)). "Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial." Id. Analysis "[T]he trial court may permit a defendant to introduce evidence of the victim's prior specific acts of viole nce of which the defendant had knowledge, provided that the acts sought to be established are reasonably related to the crime with which the defendant is

22 charged." State v. Waller, 816 S.W.2d 212, 216 (Mo. banc 1991) (emphasis added). In addition, evidence of a victim's "reputation for turbulence and violence is admissible as relevant to show who was the aggressor and whether a reasonable apprehension of danger existed." State v. Gonzales, 153 S.W.3d 311, 313 (Mo. banc 2005) (quoting State v. Buckles, 636 S.W.2d 914, 923 (Mo. banc 1982)) (emphasis added). However, reputa tio n evidence must be through "general reputation testimony, not specific acts of violence." Id. (quoting Buckles, 636 S.W.2d at 923). Additionally, the defendant must show he or she knew of the victim's reputation for turbulence and violence. State v. Rutter, 93 S.W.3d 714, 731 (Mo. banc 2002). Here, the witness's testimony did not offer general reputation evidence. Instead, the testimony offered pertained only to a specific act of violence that took place after the assault. Whether C.E. c o mmit te d a s p e c ific act of violence after the altercation in this case is not relevant to the question of C. E. 's reputatio n for viole nce or Brandolese's reasonab le apprehensio n of harm during the altercation. Under Rutter, a specific act of violence would b e a d mis s ib le only if o ffe re d to demonstrate a basis for Brandolese to fear C.E. The incident in the witness's testimony that took place after the charged assault, however, could not possibly form the basis for Brandolese's fear of C.E. Furthermore, because the proffered testimony was not general reputation evidence, it could not be admitted to support a theory that C.E. was the init ia l aggressor. See Gonzales, 153 S.W.3d at 313. Because the witness's testimony described only one specific act by C.E. after the charged incident in this case had occurred, the circuit court acted within its d is c re tio n in exclud ing the witness' s testimo ny.

23 IV.Hearsay Brandolese argues the circuit court committed plain error in allowing hearsay evidence that violate d his C onfrontat io n C lause rights. Brandolese complains of several incide nt s involv ing supposed hearsay testimony, but these claims of error were not ra is e d or made to the circuit court in the motion for new trial and, therefore, are not preserved for appellate review. Standard of Review "Unpreserved issues can only be reviewed for plain error, which requires a find ing that manifest injustice or a miscarriage of justice has resulted from the trial court error." In re Care & Treatment of Braddy, 559 S.W.3d 905, 909 (Mo. banc 2018) (inte r n a l quotations omitted). 11

Analysis "A hearsay statement is any out-of-court statement that is used to prove the truth o f the matter asserted and that depends on the veracity of the statement for its value." State v.Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006). "Hearsay statements generally are ina d mis s ib le . " State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997). Additiona ll y, a te s timo n ia l o ut-of-court statement is not admissib le against the defendant under the C onfrontat io n C lause unless the requireme nts of Crawford v. Washington, 541 U.S. 36 (2004), ar e met. State v. Kemp, 212 S.W.3d 135, 147-48 (Mo. banc 2007). 12

11 The standard for plain error is more thoroughly set forth in the discussion of Po int I. 12 Crawford re q uire s e xc lus io n o f te s timo n ia l, out-of-court statements that are otherwis e a d mis s ib le unle s s the witne s s is unavailable at trial and the defendant previously had an opportunity to cross-examine the witness. 541 U.S. at 53-54.

24 The firs t inc id e nt fo r which Brandolese alleges error invo lves the neighbor witness's volunteered statement that C.E. told her Brandolese repeatedly hit him with a cane. The following exchange took place during the neighbor's te s timo n y : Q . Okay. When you called 911, ...what did you tell them; what were you aware o f? A. ...[The victim] kept telling me over and over and over that...[Bra ndo lese ] hit him in the head with a cane. [Defense Couns e l] : O b je c tio n. T he C ourt: What's your objection? [Defense Counsel]: Hearsay, and that's not hearsay. [The Prosecutor]: Excited utterance. [Defense Counsel]: It's not an excited utterance. The C ourt: Are you objecting or not? [ Defense C ounsel]: I a m o b je c tin g. [ The Prosecutor]: Excited utterance. He showed up at her house and told her what was going on and to call 911. [Defense C ounsel] : I think you should— The C ourt: I think I'm going to sustain that. The circuit court sustained the objection on which Brandolese bases his claim of error. Therefore, no error—let alone evident, obvious, and clear error—exists. Later, the circuit court overruled a hearsay objection by Brandolese during Officer Nappe's testimony. The prosecuting attorney asked whether Officer Nappe developed an idea of what happened at the scene:

25 Q . Did you develop some form of an investigation or some form of an idea what transpired by talking to [the victim]? A.Yes. [ Defense C ounsel]: Objection, hearsay. The circuit court overruled this objection. Brandolese suggests this was an error that is evident, obvious, and clear. However, the question does not ask for hearsay, nor did the officer's response repeat an out-of-court statement. Officer Nappe testified only that he formed an idea of what had taken place after he spoke with C.E. Therefore, Brandolese fa ils to e s ta b lis h any error in the circuit court's ruling, let alone an evident, obvious, and clear error, nor does he ma k e a s ho win g o f ma nife s t injus t ic e . Finally, the circuit court overruled a hearsay objection by Brandolese when the State asked Officer Nappe how he knew C.E. was cut by a knife and Officer Nappe s a id C.E. to ld him Bra nd o le s e s la s he d him with a k nife. Immediately following this question, the State asked Officer Nappe if he spoke with Brandolese about the knife. Officer Nappe responded he had and testified Brandolese said he had "sliced the victim with a knife. " Brandolese did not object to this portion of Officer Nappe's te s timo n y. "The imp ro p e r a d mis s io n o f hearsay evidence requires reversal [only] if such evidence is prejudicial." Saint Louis Univ. v. Geary, 321 S.W.3d 282, 291 (Mo. banc 2009). "C onfront at io n C la us e violations are subject to the ha rmle s s error test found in Chapman v. California, 386 U.S. 18, 24 (1967)." State v. March, 216 S.W.3d 663, 667 (Mo. banc 2007). "A complaining party is not entitled to assert prejudice if the challenged evidence is c umu la t i ve to other related admitted evidence." Saint Louis Univ.,

26 321 S.W.3d at 292. "C umu la t iv e evidence is additional evidence that reiterates the same point." Id. "Evide nce challe nged on constit ut io na l grounds that is cumulat i ve of other , properly admitted evidence cannot have contributed to a defendant's convict io n and so is harmless beyond a reasonable doubt." State v. Davidson, 242 S.W.3d 409, 418 (Mo. App. 2007); see also State v. Bell, 274 S.W.3d 592, 595-96 (Mo. App. 2009) (find in g a d mit t i n g an examine r's te s timo n y about a doctor's opinions was harmless error because the evidence was cumulative). Plain error review "requires a finding that ma nife s t injust ice or a miscarriage of justice has resulted from the trial court error." State v. Perry, 548 S.W.3d 292, 300 (Mo. banc 2018) (quoting State v. Letica, 356 S.W.3d 157, 167 (Mo. banc 2011)). In light of subsequent testimo ny regarding Brandolese 's own statement to Officer Nappe, whether the circuit court may have erred in allowing the o ffic e r to testify regard in g C.E.'s statement in this instance is imma t e r ia l. Brandolese cannot show that the error was outcome-determina tive and resulted in manife st injust ice if la te r te s timo n y d e mo ns tr a t e d the same fact. See Saint Louis Univ., 321 S.W.3d at 292. For this reason, Brandolese is not entitle d to relie f due to the circuit court overruling his objection to the testimo ny. Conclus ion The circuit court's judgme nt is affir med. _____________________ W. Brent Powell, Judge W ils o n and Fischer, JJ., concur; Russell, J., concurs in part and in result and concurs in part in dissenting opinion in separate opinion filed; Draper, C.J., dissents in separate opinion filed; Breckenridge and Stith, JJ., concur in opinion of Draper, C.J.

STATE OF MISSOURI, ) ) Respondent, ) ) v. ) No. SC97697 ) MARK C. BRANDOLESE ) ) Ap p e lla nt. )

PART IN DISSENTING OPINION I agree with the p rinc ip a l opinio n' s analys is conclud ing that Mark Brandolese did not meet his burden establis hing manife st injus t ice and that any violat io n of section 494.470.1 1 did not constitute plain error. I respectfully disagree, however, with the principal opinion's failure to find a violation of section 494.470.1. I agree with the

legis la t ur e intended the meaning of "prosecuting attorney" to encompass assistant prosecuting attorneys, and, as a result, Juror No. 16 was disqualified from serving on Brandolese's jury under section 494.470.1. But, for the reasons indicated in the principal 1 All statutory references are to RSMo Supp. 2013 unless otherwise specified.

2 opinion, Brandolese failed to meet his burden demonstrating ma nife s t injus t ic e or prejudice, and the circuit court's violation of section 494.470.1 did not constitute plain error. Accordingly, I would affirm the circuit court's judgment. ______________________________

Mary R. Russell, Judge

STATE OF MISSOURI, ) ) Respondent, ) ) v. ) No. SC97697 ) MARK C. BRAN DO LESE, ) ) Ap p e lla nt. )

The principal opinion's holding, which condones kin of the assistant prosecuting attorney sitting in judgme nt on a case in which the assistant prosecuting attorney active ly participated in, surely has legal scholar S ir W illia m Bla c k s to ne s p inn in g in his gra ve . Not only is this holding unsupported by centurie s-old precedent, Missouri caselaw, or a proper reading of section 494.470.1, RSMo Supp. 2013, under this C ourt's rules of statut o r y construction, but it places burdens upon a defendant that are not required by the statute and reaches a patently absurd result. 1 Accordingly, I dissent.

1 All statutory references are to RSMo Supp. 2013 unless otherwise indicated.

2

Juror Dis qualificatio n under Section 494.470 In his first point, Mark C. Brandolese (hereinafter, "Brandolese") argues the circuit court plainly erred in failing to strike Juror No. 16 for cause because she was the sister of a Pettis C ounty assistant prosecuting attorney, Robert Anthony Farkas (hereinaft er, "Farkas"), who participated in Brandolese's case. Brandolese claims the circuit court's ruling violated his right to a fair and impartial jury and section 494.470.1. Standard of Review "When the defendant is aware of facts which would sustain a challenge for cause, he [or she] must present [the] challe nge during the voir dire examination or prior to the swearing of the jury, otherwise, the point is waived." State v. Marr, 499 S.W.3d 367, 376 (Mo. App. W.D. 2016) (quoting State v. Goble, 946 S.W.2d 16, 18 (Mo. App. S.D. 1997)). "The rule requir ing contempora neo us objections to the qualificatio ns of jurors is we ll founded. It serves to minimize the incentive to sandbag in the hope of acquittal and, if unsuccess fu l, mount a post-conviction attack on the jury selection process." State v. Hadley, 815 S.W.2d 422, 423 (Mo. banc 1991). While asserting challenges for cause, Brandolese made a contemporary objection to Juror No. 16 being seated on the jury because she was Farkas' sister and characterized Farkas as Juror No. 16's "beloved brother [who] works for the prosecutor." Although Brandolese did not cite section 494.470.1 in his time ly o b je c tio n, he p la in ly a nd unequivo ca ll y infor me d the circuit court he believed Juror No. 16 should be struck for cause due to her k ins h ip with Farkas. In State v. Amick, 462 S.W.3d 413, 415 (Mo. banc 2015), this Court found a strikingly similar objection—w hic h occurred when an impr o p e r

3

juror substit ut io n occurred—was timely and specific enough to preserve the error, even though defense counsel failed to cite the specific statute at issue. Here, the undisputed facts show Brandolese did not wait to raise Juror No. 16's qualification to sit as a juror until his appeal. The record unmistakably demonstrates that, prior to the jury being seated , Brandolese fully informed the circuit court his objection to Juror No. 16 sitting on the jury was due to her k inship with Farkas, who undisputedly worked for the prosecuting attorney's office trying his case. However, because Brandolese did not include this claim of error in his motion for new tria l, he is e ntit le d only to plain error review. State v. Perry, 548 S.W.3d 292, 300 (Mo. banc 2018). "This Court always has the discretion to engage in plain error review of issues concerning substant ia l rights, especially constitut io na l rights ...." State v. Rice, 573 S.W.3d 53, 73 (Mo. banc 2019) (quoting State v. Brooks, 304 S.W.3d 130, 136 n.2 (Mo. banc 2010)). In applying plain error review, the principal opinion reframes the actual legal issue Brandolese presents and scarcely addresses section 494.470.1 or a defendant 's substant ive, constitut io na l right to a fair and impart ia l jury. The p rinc ip a l o pinio n mu s t ignore section 494.470.1 to reach its desired result because confronting the statute's pla in langua ge undermi nes the principa l opinio n' s entire rationa le that there was no manifes t injustice in allowing Juror No. 16 to p a rtic ip a te in decidin g hi s fate. 2

2 The p rinc ip a l o p inio n re lie s o n State v. Howard, 540 S.W.2d 86 (Mo. banc 1976), as rejecting a different plain error analysis when constitutional rights are at issue. In Howard, the defendant asserted relief always should be given under plain error when a constitut io na l error is imp lic a te d. Id. at 87. This Court rejected that argume nt, find ing it was appropria te to "determine on a case-to-case basis whether manifest injustice has resulted from the alleged error." Id. I do not advocate for automatic reversal in every instance; however, I

4

Brandolese's claim involves a question of statutory interpretation, which is a question of law this C ourt reviews de novo. State v. Richey, 569 S.W.3d 420, 423 (Mo. banc 2019). "It is a basic rule of statutory construct io n that words should be given their plain and ordinary meaning whenever possible." State v. Johnson, 524 S.W.3d 505, 510 (Mo. banc 2017) (quoting State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 479 (Mo. banc 2013)). "This Court must presume every word, sentence or clause in a statute ha s effect, and the legislature did not insert superfluous language." Bateman v. Rinehart, 391 S.W.3d 441, 446 (Mo. banc 2013). "This C ourt may not add langua ge to an unamb ig u o us statute." Johnson, 524 S.W.3d at 511. The Right to an Impartial Jury The Sixth Amendme nt guarantee s every crimina l defendant the right to a trial by an impartial jury. U.S. Const. amend. VI. The Missour i C onstit ut io n guarantees crimi na l defendants the right to a "trial by an impart ia l jury of the county." Mo. Const. art. I, sec. 18(a). Further, in Theobald v. St. Louis Transit Co., 90 S.W. 354, 359 (Mo. 1905), this C ourt recognized : Under our system of jurisprudence there is no feature of a trial more important and more necessary to the pure and just administration of the la w than that every litigant shall be accorded a fair trial before a jury of his countryme n, who enter upon the trial totally disinte rested and wholly unprejud ic ed.

believe this specific case demonstrates Brandolese's constit ut io na l right to a fair and impartial jury was violated when Juror No. 16 was not struck for cause due to her kinship with Farkas, resulting in a manife st injust ice.

5

"To qualify as a juror, the venireperson must be able to enter upon that service with an open mind, free from bias and prejudice." State v. Ervin, 835 S.W.2d 905, 915 (Mo. banc 1992). "A defendant is entitled to a full panel of qualified jurors before he [or she] makes peremptory challenges ...." State v. Lovell, 506 S.W.2d 441, 443 (Mo. banc 1974). "[E]rrors in the exclus io n of potentia l jurors should always be on the side of caution. " State v. Walton, 796 S.W.2d 374, 381 (Mo. banc 1990) (a lte ra tio n s in o rigina l) (quoting State v. Draper, 675 S.W.2d 863, 865 (Mo. banc 1984)). F a ilure to sustain a meritor io us challenge for cause to excuse a biased or prejudiced venireperson constitutes prejudicia l error. State v. Schnick, 819 S.W.2d 330, 333 (Mo. banc 1991). "Before statehood and up to 1835 [Missouri] had only one statute dealing with the competency of jurors." State v. Thomas, 174 S.W.2d 337, 339 (Mo. 1943). The statute "said nothing about any disqualification of jurors because of kinship between them and the litiga nts. " Id. In 1835, the le gis la t ure adopted Missouri's first criminal code, which contained the first statute to address juror competence in criminal cases: When any indictment alleges an offence [sic] against the person or property of another, neither the injured party, or any person of k in to him, s ha ll b e a competent juror on the trial of such indictment, nor shall any person of kin to the prosecutor or defendant, in any case, serve as a juror on the trial thereof.

Art. VI, sec. 8, RSMo 1835 (emphasis added). "The clear purpose" of this p ro vis io n wa s "to secure fair and unprejudiced jurors." State v. Stewart, 246 S.W. 936, 939 (Mo. 1922) (construing this statute's successor section 4011, RSMo 1919). Although the constitutio na l right to a fa ir a nd imp a rt ia l jury d o e s no t re q uire the exclusion of jurors within a certain degree of consanguinity to a prosecuting attorney, Missouri has chosen to provide this

6

protection for more than 185 years. 3 The 1835 statute has been recodified several times, but the langua ge disqualif ying kin of "a prosecutor" remained virtua l ly identica l until 1989, when the legislature adopted section 494.470, which addresses juror competence in both criminal and civil cases. 4

Section 494.470 Section 494.470.1 provides in pertinent part, "no person who is kin to ... the inj ur e d party, accused, or prosecuting or circuit attorney in a criminal case within the fourth degree of consanguinity or affinity shall be sworn as a juror in the same cause." Brandolese argues his challenge to strike Juror No. 16 for cause should have been sustained because, as Farkas' sister, she was disqualified pursuant to section 494.470.1 from serving on the jury in that Farkas was a prosecuting attorney in the same cause. Brandolese contends

3 The p rinc ip a l o p inio n c ite s Erv in for the propositio n "the constitut io na l right to a fair and impartial jury does not itself require the exclusion of any juror within a certain degree of consanguinity or with another personal relationship to one of the parties." Slip op. at 13. Erv in does not so state or hold. Further, Erv in is inapposite in that it concerned striking a juror who was an acquaintance of the victim and an investigating officer. Erv in, 835 S.W.2d at 915-16. Hence, the juror was not related by consangui nit y or engaged in a relationship with a party to the case. 4 In 1989, the legislature also enacted section 494.425, which sets forth instances in whic h person are ineligible from serving on juries due to age, citizenship, residency, prior felony c o nvic t io ns, certain mental or physical limitations or infirmities, active service in the armed forces, and being a judge in a court of record. The principa l opinio n expresses concern tha t failure to disqualify individuals under section 494.425 automatically would result in reversal if this Court adopted my position regarding section 494.470.1. However, the rationale underlying disqualification under 494.470.1 is based on centuries-old precedent specifically addressing the unique relationship kinfolk have with one another such that bia s and prejudice resulting from that relationship are presumed as will be discussed below. Hence, this rationale has no logical application to the individuals disqualified under section 494.425.

7

"prosecuting attorney" refers to any attorney representing the state who participated in the prosecution of the case. The p rinc ip a l o p inio n d e c line s to a d d re s s this is s ue or Brandolese' s argume nts tha t his fundame nta l right to a fair and impart ia l jury was violated. Instead, the princ ip a l o p inio n fo c uses on whether Brandolese could demonstrate Juror No. 16's participat io n resulted in a manifest injustice. The principal opinion's analys is puts the proverbial cart before the horse. The simple fact Juror No. 16 was allowed to participate as a member of the jury, and whatever influe nce she may have brought to bear during deliberat io ns, is the error, not whether the jury's verdict was manife st l y unjust. Construing section 494.470.1's plain language reveals the patently absurd result tha t occurs in adopting the state's position and condoning Juror No. 16's participation in this matter. Had Farkas remained the attorney of record and Juror No. 16 was on the venirepa ne l, the princip a l opinio n would condone her sitting in judgme nt in the absence of a showing she was biased or prejudiced. Hence, I feel it is important to analyze section 494.470.1 to furthe r d e mo ns tra t e the fla ws in the p rinc ip a l o p inio n 's ma ni fe s t injustice rationale. The state seeks to narrow the definition of prosecuting attorney to refer to the attorney's position as the elected prosecuting attorney of the county in which a defendant 's trial takes place. The state supports its construction by citing several provisions in chapter 56, which regulates the election, qualification, conduct, salary, and retireme nt benefits of the elected prosecuting attorney and any appointed assistant prosecuting attorney. The state also relies on section 56.060.1, which confers upon the elected

8

prosecuting attorney the power to commence and prosecute all civil and criminal cases within his or her county. The state argues, because the elected prosecuting attorney is the only individual authorized to commence a criminal cause, this is the only way to construe "prosecuting attorney" in s ection 494.470.1. The legislature needs to delineate between elected and assistant prosecuting attorneys when conferring these duties, powers, and compensation. However, this d e line a t io n is no t intended to employ chapter 56's statutory distinctio ns to eviscerate a defendant's fundamental, constitutional right to a fair and impartial jury when disqualifying a prosecuting attorney's kin from jury service . This narrow reading als o ignores the unique role the elected prosecuting attorney and his or her assistant prosecutin g attorneys play in the criminal justice system. "A prosecuting attorney is a quasi-jud ic ia l officer entrusted and charged not only with the important responsibility to prosecute vigorously and fearlessly in behalf of the state but also with the no less positive obligat io n to see that every defendant so prosecuted nevertheless is accorded a fair trial." State v. Selle, 367 S.W.2d 522, 530 (Mo. 1963) (internal citation omitted). "Their duty is not to seek convictions at any cost, but to see that justice is done and that defendants receive fair and impartial tria ls . " State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 581 (Mo. banc 1994) (emphasis added). This Court recognized, "An assistant or deputy prosecuting attorney legally appointed is generall y clothed with all the powers and privile ge s of the prosecuting attorney; and all acts done by him in that capacity must be regarded as if done by the prosecuting attorney himse l f. " State ex rel. Nothum v. Walsh, 380 S.W.3d 557, 565 n.9 (Mo. banc 2012) (quoting State v. Falbo, 333 S.W.2d 279, 284 (Mo. banc 1960)).

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Moreover, limiting the meaning of prosecuting attorney to the elected prosecuting attorney would render the words "in the same cause" meaningless because the elected prosecuting attorney participates in every criminal cause by virtue of his or her charging power. It cannot be stated strongly enough that, under this faulty logic, had Farkas remained the assistant prosecuting attorney assigned to try Brandolese's case when it went to trial, the state believes Juror No. 16 would be qualified to serve on the jury despite her kinship with Farkas because Farkas was not the elected prosecuting attorney. Construing the statute in this manner defeats the legislature's purpose in enacting section 494.470.1, which this Court has acknowledged as securing fair and unprejudiced jurors who are disinterested in the cause. Stewart, 246 S.W at 938. To read section 494.470.1 as s p lit t i n g hairs between whether kin of elected or assistant prosecuting attorneys are qualified jurors would fly in the face of federal and state constitutional imperatives requiring crimina l defendants to be tried by an impartial jury. N ot only should a jury which hears a crimina l case and which has great powe r b e imp a rt ial in fact, but also if we are to hold true our ideals and retain the confide nce of the communit y, the jury should also give every outwa r d appearance of impartiality.

State v. Carter, 544 S.W.2d 334, 338 (Mo. App. St. L. Dist. 1976) (quoting State v. Holliman, 529 S.W.2d 932, 942 (Mo. App. St. L. Dist. 1975)). The fair administration of justice and the avoidance of impropriety should compel this C ourt to find the plain meaning of prosecuting attorney "in the same cause" includ e s the elected prosecuting attorney by virtue of his or her power to commence the prosecution—in this case, P hillip Sawyer's role in conducting the trial as the elected

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prosecuting attorney—and assistant prosecuting attorneys who otherwise participate "in the same cause." This reading gives effect to all the words within the statute without adding any additiona l langua ge to qualify "prosecutin g attorney." It effectua tes the purpose of the statute by prohibiting kin of these participants who have an interest in the outcome of the litigation from serving as jurors. Most importantly, it safeguards a defendant's constitutional right to an impartial jury and avoids even the appearance of imp ro p r ie t y. By construing the entire statute, includ ing the words "in the same cause," this C our t would avoid the state's other concern that Brandolese wishes to read section 494.470.1 to strike the kin of all assistant prosecuting attorneys. Kin of any assistant prosecuting attorney would not be disqualified automatically unless the assistant prosecuting attorne y participated "in the same cause." Had Farkas never signed the complaint charging Brandolese nor appeared on the state's behalf during the pretrial proceedings, Juror No. 16 could be qualified to sit on Brandolese 's jury if it were shown she could be fair and impartial. However, because Farkas was a prosecuting attorney "in the same cause" by virtue of signing the complaint and appearing at three pretrial hearings on the state's behalf, I ma int a in Juror No. 16 was disquali fied from serving on Brandolese' s jury und e r section 494.470.1. Inquiry into Bias, Prejudice, or Partiality To support its finding Brandolese did not demonstrate a manifest injustice occurred, the p rinc ip a l o p inio n essentia lly find s that, even if sec tio n 494.470.1 is construed to include disqualifying assistant prosecuting attorneys' kin, Brandolese's claim still fails because he

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did not inquire whether Juror No. 16's kinship with Farkas would affect her a b ilit y to b e fa ir o r imp a rt ia l. The p rinc ip al opinion repeatedly faults Brandolese for failing to develop a record Juror No. 16 was biased and partial due to her relationship to Farkas. Hence, not only does the p rinc ip a l o p inio n re q uire Bra nd o le s e to demonstrate plain error and result i n g manifes t injust ice, which is burdensome under ordinary circumst a nce s, but the princ ip a l o p inio n constructs additional hurdles the legislature never contemplated. Henc e, Brandolese's and every defendant's burden is raised to an even higher standard than lega l l y required. Moreover, the principal opinion repeatedly conflates section 494.470.1's langua ge disquali fyi ng Juror No. 16 as a competent juror because she is kin to Farkas with questioning a potentially qualified juror about the ability to be a fair and impartial juror generally and striking that juror due to bias. It is inconsequential the record contains no evidence of Brandolese questioni ng Juror No. 16 about any potential bias because section 494.470.1 does not require Brandolese to question or otherwise demonstrate Juror No. 16 could not be fair or impart ia l before she could be struck for cause. Section 494.470.1's plain langua ge requir e s disqualificatio n as a matter of law based on the juror's kinship with a prosecuting attorney, not merely in those instances where the juror's bias or partiality can be demonstrated. The p rinc ip a l o p inio n' s d e c la ra tio n that this C ourt cannot presume bias or prejud ic e in the absence of Juror No. 16's actual knowledge her brother participated in Brandolese 's prosecutio n is wholly unsupported by centuries of caselaw. In Thomas, this C our t discussed the history and underlying rationale for section 494.470.1's predecessor statutes. This Court recognized, "'The rule seems to be settled that under the c o mmo n la w a jur o r

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was disqualified if related to either of the parties [by] ... consanguinity or affinity...; and that this was a ground of 'principa l' challe nge that is, of challe nge on the ground o f presumptive prejudice alone, without any showing of actual prejudice." Thomas, 174 S.W.2d at 340. The common law theory of such principal challenges was that the fact of relationship spoke for itself without proof of actual prejudice, 'fo r tha t' as Lord Coke put it, 'the law presumet h that one kinsma n doth favor anot he r before a stranger'; or, as one decision says, because 'blood is thicker than water.

Id. at 341-42 (internal footnote omitted). Thomas cited S ir W illia m Bla c k s to n e ' s commentary that jurors could be challenged for bias or partiality, and "[a] princ ip a l challenge is such, where the cause assigned carries with it prima facie evident marks of s us p ic io n, e ithe r o f ma lic e o r [favor]: as, that a juror is of kin to either party within the ninth degree ...." 3 S ir W illia m Bla c k s to ne , Commentaries on the Laws of England *363 (Lewis Ed. 1767). Bia s has been implied to relatives of trial participants for centuries. Notably, in United States v. Burr, 25 F.Cas. 49, 50 (D. Va. 1807), Chief Justice John Marshall asked, "Why is it that the most distant relative of a party cannot serve upon his jury?" C hie f Justice Marshall concluded "the law suspects the relative of partialit y; suspects his mind to be under a bias, which will prevent his fa irly hearing and fa ir l y deciding on the testimony which may be offered to him." Id. Hence, "[i]t is a universa l rule that the relatio ns hip of a juror to one of the parties in a lawsuit disqualifie s the juro r. The question of whether he [or she] is biased or prejudiced is of no concern." State v. Miller, 56 S.W.2d 92, 96 (Mo. 1932) (emphasis added); see also State v. Chandler, 314 S.W.2d 897, 900 (Mo. 1958) ("In a proper case on timely objection a juror within the

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prohibited relationship should be excluded on the ground of presumptive prejudice which is the basis of the prohibitory statute."). Accordingly, the presumptive prejudice or bias of a juror who is kin to a prosecuting attorney does not turn on whether the defendant preserved the issue for appeal. The prejudice is inhere nt from the kinship between the jur o r and the prosecuting attorney, which automatically disqualif ie s the juror from serving in the same cause because it violates a defendant's substantive, constitutional right to a fair and imp a rt ia l jury. This general princip le has been recognized when applying Sixth Amend me n t protections to the defendant's right to an impartial jury as well: [I]n certain instances a hearing [or questioning] may be inadequate for uncover ing a juror's biases, leaving serious question whether the trial cour t had subjected the defendant to manifestly unjust procedures resulting in a miscarriage of justice. While each case must turn on its own facts, there are some extreme situations that would justify a finding of implied bias. Some examples might include ... that the juror is a close relative of one of the participants in the trial ....

Smith v . Phillips, 455 U.S. 209, 222, 102 S. Ct. 940, 948, 71 L. Ed. 2d 78 (1982) (O'Connor, J., concurring) (emphasis added); see also Dyer v. Calderon, 151 F.3d 970, 984-85 (9th Cir. 1998) (discussing this country's extensive history of recognizi ng presumed juror bias in which prejudice must "be inferred from [a] juror's relationship s ") ; United States v . Mitchell, 690 F.3d 137, 145 (3d Cir. 2012) (recognizing "[i]t is well settle d that the Sixth Amendme nt, like the common law, under some circums ta nce s presumes bias when the relative of a party in a case serves on his or her jury in a criminal trial. Indeed, consanguinity is the classic example of implied bias.") (interna l citatio ns and footno te o mitte d) (emphasis added)).

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The principal opinion wishes to place a prosecuting attorney's kin on equal footing with mere acquaintances or jurors who have no familial connection to any party, despite the statute's clear, unequivocal intent to disqualify kinship jurors from being seated. This position is not supported by caselaw, especially when contrasted with cases in which juro r s who had a non-kinship relationship with a prosecuting attorney were questioned to determine whether they possessed bias resulting from that relationship. See State v. Shoemaker, 183 S.W. 322, 324 (Mo. 1916) (juror who was "well acquainted with the prosecuting attorney and his assistants" qualified to serve after stating "he would try the case fairly according to the law and evidence"); State v. Grant, 394 S.W.2d 285, 289 (Mo. 1965) (lifelong friend and former client of prosecuting attorney questioned regarding the a b ilit y to b e fa ir a nd imp a rt ia l); State v. Arnette, 686 S.W.2d 4, 8 (Mo. App. W.D. 1984) (acquaint a nce s of county prosecuting attorney gave unequivo ca l answers and demonstr a t e d no bias). The principal opinion treats Juror No. 16 as though she is an ordinary juror, whom a defendant must demonstrate is biased before being struck, and requires this C ourt to presume the seated juror followed the circuit court's instructions to be fair and impart ia l. However, Juror No. 16 is not an ordinary juror. She is the sister of an assistant prosecuting attorney who active ly p a rtic ip ate d in this case; therefore, pursuant to section 494.470.1, she was required to be disqualified. What seems to be wholly lost on the principal opinio n is that pursuant to section 494.470.1, she should not have been seated; therefore, whether she followed the c irc uit c o urt's ins truc t io n s is irre le va n t. C ontrary to the princ ip a l opinion's assertion, neither the statute nor caselaw requires Brandolese to question

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Juror No. 16 regarding the quality of her relationship with Farkas or whether she could be fa ir a nd imp a rt ia l before requesting she be struck for cause or before demonstrating a manifes t injustice occurred. Knowledge of the Juror and the Circuit Court The principa l opinio n also finds Brandolese cannot demonstrat e manife st injus t i c e because he did not show or allege Juror No. 16 was aware of Farkas' participation in th e pretrial proceedings. Again, the principal opinion ignores the statute's p la in la ngu a g e , which does not premise kinship disqualification on knowledge of a relative's participat io n in the cause, only knowledge they are kin to a prosecuting attorney. Cf. Stewart, 246 S.W. at 939-40 (holding no error in failing to disqualify a juror who was unaware he was distantly related to the victim); Miller, 56 S.W.2d at 96 (holding if "it is conclus ive ly sho w n that a juror, so related, did not learn of such [familial] relationship until after verdict, there is no good reason why a new trial should be granted. A juror cannot be prejudiced by a fact unknow n to him. ") (emphasis added). Further, the p rinc ip a l o p inio n mischaracterizes the holdings in Miller and Chandler to support its argume nt Juror No. 16 could not be biased or prejudiced because she had no knowledge of Farkas' participation in the case. Miller and Chandler focus on the juror's knowledge of the kinship relationship, no t knowledge their kin participated in a particular case to find prejudice. I believe the same reasoning applies to p rinc ip a l o p inion's assertion the circuit court may not have been aware of Farkas' participation in the early stages of Brandolese's case. The circuit court is presumed to know the law regarding section 494.470.1's disqualification provision. Amick, 462 S.W.3d at 415. Brandolese developed a record

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Juror No. 16 was Farkas' sister, Farkas was an assistant prosecuting attorney, and the docket entries c o nfir m Farkas' appearance on the state's behalf at three hearing dates in the early stages of the prosecution. This case "illus trate s the wisdom of trial judges erring on the side of caution in ruling on challenges for cause in criminal cases where a replacement can be easily obtained for a prospective juror of doubtful qualifications." State v. Stewart, 692 S.W.2d 295, 299 (Mo. banc 1985). 5

Manifest Injustice Occurred I believe the circuit court's failure to sustain Brandolese's challenge to strike for cause Juror No. 16 violated section 494.470.1 and amounted to error that was evident, obvious, and clear. I further assert Brandolese demonstrated a manifest injustice occurred warranting relief under Rule 30.20. In Missouri, "[f]ailure to strike an unfit juror is structura l error ...." Dorsey v. State, 448 S.W.3d 276, 299 (Mo. banc 2014). In Weaver v. Massachusetts, --- U.S. ---, 137 S. Ct. 1899, 198 L.Ed.2d 420 (2017), the United States Supreme Court clarified the structura l error doctrine, explaining: The purpose of the structural error doctrine is to ensure insistence on certain basic, constit ut io na l guarantees that should define the framework of any c rimin a l tria l. Thus, the defining feature of a structural error is that it 'affect[s] the framework within which the trial proceeds,' rather than being 'simply an error in the trial process itself.' For the same reason, a structura l error 'def[ies] analysis by harmless error standards.'

5 Give n the s ma ll le ga l c o mmu n it y in P ettis County with only one circuit judge, I find it disingenuous to continue to assert the state and circuit court were unaware of Farkas' participation in this case without Brandolese bringing the docket sheets to the circuit court's attentio n. Moreover, Sawyer, the elected prosecuting attorney who tried this case, surely reviewed the case file when preparing for trial and became aware which of his assistant prosecuting attorneys previous ly worked on the case.

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Id. at 1907-08 (a lte ra t io ns in o rigina l) (quoting Arizona v. Fulminante, 499 U.S. 279, 309- 310, 111 S. Ct. 1246, 113 L.Ed.2d 302 (1991)); see also State v. Strong, 263 S.W.3d 636, 647 (Mo. banc 2008). The United States Supreme Court recognized there are "at least three broad rationales" fo r the structura l error doctrine, which include: First, an error has been deemed structural in some instances if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest[;] .... [s]econd, an error has been deemed structural if the effects of the error are simply too hard to measure[;] .... [and ] [t]hird, an error has been deemed structural if the error always results in funda me nt a l unfa ir ne ss.

Weaver, 137 S. Ct. at 1908. In Strong, this C ourt found, Without these basic protections, a criminal trial cannot reliably serve its funct io n as a vehicle for determinat io n of guilt or innoce nce, and no crimi na l punishme nt may be regarded as funda me nt a ll y fair. O ne such struct ur a l defect is the trial by an adjudicator who is not impartial. Therefore, where a c rimin a l d e fe nd a nt is d e p rive d o f the right to a fa ir a nd imp a rt ia l jur y , prejudice therefrom is presumed.

Strong, 263 S.W.3d at 647 (internal citations and quotations to Fulminante o mit t e d) (emphasis added). When determining the remedy for structural error, the United State Supreme Court took into account the nature of the error, when or if an objection was raised, and at what point during the post-trial proceedings the error was raised. Weaver, 137 S. Ct. at 1910-

1. Weaver affirmed when "there is an objection at trial and the issue is raised on direct

appeal, the defendant generally is entitled to 'automatic reversal' regardless of the error's actual 'effect on the outcome.'" Id. at 1910 (quoting Neder v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 144 L.Ed.2d 35 (1999)). However, when the error is unpreserved and

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raised on collateral attack, such as in a post-conviction relief proceeding, the defendant must demonstrate prejudice because the United States Supreme Court was concerned with "the systemic costs of remedying the error" at a time in which "[t]he finality interest is more at risk." Id. at 1912. The United States Supreme C ourt has not, however, resolved whether unprese r ve d structural errors automatically satisfy the requirement of plain error review that the error resulted in prejudice. Rather, the Supreme "Court has several times declined to resolve whether 'structura l' errors—those that affect 'the framework within which the tria l proceeds,' automat ica l ly satisfy the third prong of the plain-erro r test. 6 Puckett v. United States, 556 U.S. 129, 140-41, 129 S. Ct. 1423, 1429, 173 L.Ed.29 266 (2009) (inte r n a l c ita tio n o mitte d ) (quoting Fulminante, 499 U.S. at 310). Hence, the United States Supreme Court expressly reserved the question of whether structural error automatically satisfies the prejudice requireme nt for plain error review. 7

6 The third prong of the federal plain error test is whether the plain error "affected the appellant's substantial rights, which in the ordinary case means he [or she] mus t demonstrate that it 'affected the outcome of the district court proceedings.'" Puckett, 556 U.S. at 135 (quoting United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L.Ed.2d 508 (1993)). 7 Weaver invo lved a defendant who did not object to his trial being closed to the public during voir dire, during the trial, or on direct appeal, but instead, raised defense couns e l' s failure to object as an ineffective assistance of counsel claim. Weaver, 137 S. Ct. at 1905. In find ing the defendant had to demonstrate prejudice for this structural error, the Unit e d States S up re me Court expressed concerns with sandbagging and the circuit court's inability to remedy the error at the time it occurred or after direct appeal. Id. at 1912. It bears repeating that, in this case, Brandolese made a contemporaneous objection with the circuit court about his challenge to Juror No. 16 sitting on the jury before the jury was seated and raised this issue on direct appeal, which alleviates the United States Supreme Court's reservations.

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The principal opinion seeks to expand Brandolese's burden to show a manifes t injustice occurred when challenging the failure to strike a juror under section 494.470.1 to demonstrate bias or partiality of the juror being challenged. Setting aside the fact failing to strike an unfit juror constit ute s structura l error, the princip a l opinio n cites no casela w requiring a defendant to overcome these additional burdens. The principal opinion is unable to do so because section 494.470.1's plain language does not require a demonstration of bias or partiality to obtain relief. In In the Matter of the Care and Treatment of Braddy, 559 S.W.3d 905, 916 (Mo. banc 2018), the defendant moved to strike a juror for cause who possibly displayed bias, the strike was overruled, and the defendant failed to preserve the issue. This Court held the failure to strike the juror "did not result in a manifes t injust ice as he was not shown to be unqualified under either section 494.470.1 or section 494.470.2." Id. (emphas is added). The implication in Braddy is that if the defendant had demonstra ted disqualification under section 494.470.1, as Brandolese has done, this Court would have found a manifest injustice occurred. Hence, I contend the circuit court's failure to strike Juror No. 16 constituted reversib le error resulting in a manife st injustice. Brandolese was deprived of his funda me nt a l, constitutional right to a fair and impartial jury because a disqualified juror sat in judgme nt of his case. I would reverse the circuit court's judgme nt and remand the cause for a new trial. _______________________________ G EORGE W. DRA PER III, CHIEF JUSTICE