Champion v. State

Missouri Court of Appeals

Champion v. State

605 S.W.2d 510, 1980 Mo. App. LEXIS 3527

CourtMissouri Court of Appeals

DecidedNovember 21, 1980

DocketNo. 11746

StatusPublished

This text of 605 S.W.2d 510 (Champion v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Champion v. State, 605 S.W.2d 510, 1980 Mo. App. LEXIS 3527 (Mo. Ct. App. 1980).

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Opinion

PREWITT, Judge.

Movant appeals from a denial, after evi-dentiary hearing, of his motion filed under Rule 27.26, V.A.M.R., to vacate a judgment and sentence for first degree burglary. He contends that he was denied a proper jury venire because it was not “composed of a fair cross section of the community” as it did not include a sufficient number of female jurors and that he did not knowingly and voluntarily waive his constitutional right to have such a jury. He also contends that he received “ineffective assistance of counsel” because his appointed attorney did not advise him of his right to have the jury selected from a fair cross section of the community and of his right to challenge the panel on this ground.

The facts and the points relied on here are essentially the same as were the facts and the third point relied on in Covington v. State, 600 S.W.2d 186, 189 (Mo.App.1980). Here, in addition, movant’s counsel at the criminal trial testified that he did not want any women on the jury and that after the state took its “strikes” he “took off” the only two women left on the panel.

Movant’s criminal trial, as in Covington, was held before the Missouri Supreme Court’s decision in State v. Duren, 556 S.W.2d 11 (Mo. banc 1977) [overturned in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)], and therefore his failure to move to quash the jury panel is not excused by the exception recognized in State v. Williams, 595 S.W.2d 378 (Mo.App.1980), and approved in State v. Johnson, 606 S.W.2d 624 (Mo. banc 1980). What we said and held in denying the third point in Covington is equally applicable to the contentions of movant here.

We have examined the record and find that the judgment of the trial court is based upon findings of fact which are not clearly erroneous. Rule 27.26(j), V.A.M.R. In view of our opinion and holding in Coving-ton any further opinion here would have no precedential value.

The judgment is affirmed in compliance with, and pursuant to, Rule 84.16(b), V.A. M.R.

BILLINGS, P. J., and MAUS, J., concur.

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PREWITT, Judge.

Movant appeals from a denial, after evi-dentiary hearing, of his motion filed under Rule 27.26, V.A.M.R., to vacate a judgment and sentence for first degree burglary. He contends that he was denied a proper jury venire because it was not “composed of a fair cross section of the community” as it did not include a sufficient number of female jurors and that he did not knowingly and voluntarily waive his constitutional right to have such a jury. He also contends that he received “ineffective assistance of counsel” because his appointed attorney did not advise him of his right to have the jury selected from a fair cross section of the community and of his right to challenge the panel on this ground.

The facts and the points relied on here are essentially the same as were the facts and the third point relied on in Covington v. State, 600 S.W.2d 186, 189 (Mo.App.1980). Here, in addition, movant’s counsel at the criminal trial testified that he did not want any women on the jury and that after the state took its “strikes” he “took off” the only two women left on the panel.

Movant’s criminal trial, as in Covington, was held before the Missouri Supreme Court’s decision in State v. Duren, 556 S.W.2d 11 (Mo. banc 1977) [overturned in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)], and therefore his failure to move to quash the jury panel is not excused by the exception recognized in State v. Williams, 595 S.W.2d 378 (Mo.App.1980), and approved in State v. Johnson, 606 S.W.2d 624 (Mo. banc 1980). What we said and held in denying the third point in Covington is equally applicable to the contentions of movant here.

We have examined the record and find that the judgment of the trial court is based upon findings of fact which are not clearly erroneous. Rule 27.26(j), V.A.M.R. In view of our opinion and holding in Coving-ton any further opinion here would have no precedential value.

The judgment is affirmed in compliance with, and pursuant to, Rule 84.16(b), V.A. M.R.

BILLINGS, P. J., and MAUS, J., concur.

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605 S.W.2d 510, 1980 Mo. App. LEXIS 3527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/champion-v-state-moctapp-1980.

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