Christensen v. State

875 S.W.2d 576, 1994 Mo. App. LEXIS 722, 1994 WL 160180
CourtMissouri Court of Appeals
DecidedMay 3, 1994
DocketNo. WD 47883
StatusPublished
Cited by3 cases

This text of 875 S.W.2d 576 (Christensen 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
Christensen v. State, 875 S.W.2d 576, 1994 Mo. App. LEXIS 722, 1994 WL 160180 (Mo. Ct. App. 1994).

Opinion

FENNER, Judge.

Appellant, Rudolph Christensen, appeals the denial of his Rule 27.26 motion for post-conviction relief by the Circuit Court of Jackson County, Missouri.1

On August 15,1984, appellant was charged by information with one count of first degree robbery, § 569.020, RSMo 1986, and one count of armed criminal action, § 571.015, RSMo 1986. The information was later amended to charge appellant as a persistent offender. After trial by jury in January of [577]*5771985, appellant was found guilty on both counts. On February 7,1985, appellant filed a Motion for Judgment of Acquittal or, alternatively, For a New Trial, alleging, in part, that “[t]he trial court erred in not striking the entire jury panel in that there were but four jurors on the entire panel that were Black, and all four were struck preemptorily [sic] by the state.” On March 1,1985, appellant’s motion was overruled and judgment was entered whereby appellant was sentenced as a persistent offender to concurrent terms of twenty-five (25) years imprisonment on each count.

Appellant filed a notice of appeal to this court on March 6,1985. In his appeal, appellant argued, in part, that the trial court should have quashed the venire panel on the grounds that the prosecutor used her peremptory challenges to strike all of the blacks from the panel. See State v. Christensen, 720 S.W.2d 738, 739 (Mo.App.1986). In his argument, appellant relied on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This court found Batson to be inapplicable to appellant’s case, and thus rejected appellant’s argument, because:

The Batson holding is clearly limited to eases in which “the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.” [476 U.S. at 96] 106 S.Ct. at 1723 (emphasis added). In this ease the defendant is white; therefore, he can not avail himself of the Batson holding by his claim that the prosecutor removed blacks from the venire.

Christensen, 720 S.W.2d at 739. This court affirmed appellant’s conviction and sentence on September 30, 1986. Id.

On November 18, 1987, appellant filed a pro se Rule 27.26 motion to vacate his sentence. In this postconviction relief motion, appellant alleged, in part, that “the trial court erred in failing to quash the jury selected in this cause because the State systematically used it’s [sic] peremptory challenges to remove the only four black persons among the venire following voir dire and challenges for cause in that such systematic exclusion of a racial group solely on the basis of race denied Movant a fair cross-section of the community on his jury and denied Mov-ant due process and the equal protection of the law.” On January 28, 1988, appellant filed an amended Rule 27.26 motion. Counsel was later appointed to represent appellant in his Rule 27.26 proceedings. Counsel for appellant filed an amended Rule 27.26 motion incorporating appellant’s previous pro se motions.

At the evidentiary hearings on October 31, 1991 and May 22, 1992, postconviction counsel cited to Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), to support appellant’s claim that he was denied the right to equal protection by the trial court’s failure to quash the jury panel at his trial, following the State’s exercise of its peremptory challenges to remove all black venire members from the jury panel. The motion court entered findings of fact and conclusions of law on April 12, 1993, overruling appellant’s postconviction relief motion. In its conclusions of law, the motion court stated, in part, as follows:

In paragraph 9(q), Movant raised the most difficult issue to be decided by this Court. That is, whether the decision of Powers v. Ohio [499 U.S. 400], 111 S.Ct. 1364 [113 L.Ed.2d 411] (1991), which extends the holding of Batson v. Kentucky, supra, to include the exclusion of members of the venire whose race is different than that of the defendant, should be applied retroactively in order to grant Movant a new trial under Missouri Supreme Court Rule 27.26.

The court found that Powers, which was decided on April 1, 1991, announced a “new rule” in that it was a break with prior precedent, i.e., Batson, which was decided on April 30, 1986. Powers eliminated the same race requirement of Batson, and announced that criminal defendants had the requisite standing to raise third party claims of excluded jurors not to be stricken because of their race. The motion court found that “[a]l-though the principles upon which [Powers] was based were generally discussed in Bat-son, this is a result that was not dictated by precedent at the time of finality of Movant’s appeal in this case (emphasis in original).” Powers, the court stated, “announces a new rule and should not be applied in this collat[578]*578eral proceeding for the reason that, as discussed hereinbelow, trial by a fair cross section of jurors is not a rule that improves fact finding procedures or which is outcome determinative.” The motion court concluded that under the U.S. Supreme Court’s holding in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the rule announced in Powers should not be retroactively applied in this collateral proceeding.

Most significantly, however, the motion court found that movant’s claim was not cognizable because he raised the Batson claim on direct appeal and the issue was decided adversely to him. Thus, movant “is proee-durally barred, and this Court is bound by precedent from reconsidering it in a post-conviction relief proceeding. Rule 27.26(b)(3) and Mooring v. State, 501 S.W.2d 7 (Mo.1973).” This appeal followed.

In his sole point on appeal, appellant argues that the motion court clearly erred in overruling appellant’s Rule 27.26 motion for postconviction relief because “the record reflects that appellant and the black venireper-sons on his jury panel were denied their rights to equal protection of the law ..., in that the State peremptorily challenged all four of the black venirepersons on appellant’s jury panel, trial counsel properly objected to the State’s use of its peremptory challenges, the State was not required to give race-neutral reasons for the exercise of those peremptory challenges, and the trial court overruled appellant’s motion to quash the jury panel.”

Appellant’s argument on appeal focuses on the application of Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), to appellant’s case. Appellant contends that Powers is not a new rule, as defined by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), but is merely an expansion of Batson v. Kentucky, 476 U.S.

Related

State v. Brown
958 S.W.2d 553 (Supreme Court of Missouri, 1997)
Jones v. State
683 A.2d 520 (Court of Appeals of Maryland, 1996)
Jones v. State
659 A.2d 361 (Court of Special Appeals of Maryland, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
875 S.W.2d 576, 1994 Mo. App. LEXIS 722, 1994 WL 160180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christensen-v-state-moctapp-1994.