Malady v. State

748 S.W.2d 69, 1988 Mo. App. LEXIS 258, 1988 WL 24601
CourtMissouri Court of Appeals
DecidedMarch 24, 1988
DocketNo. 15260
StatusPublished
Cited by7 cases

This text of 748 S.W.2d 69 (Malady 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
Malady v. State, 748 S.W.2d 69, 1988 Mo. App. LEXIS 258, 1988 WL 24601 (Mo. Ct. App. 1988).

Opinion

FLANIGAN, Judge.

Movant James E. Malady, Jr. appeals from the trial court’s order, entered after evidentiary hearing, overruling his Rule 27.261 motion to set aside a judgment and sentences for burglary and stealing. The convictions, based on a jury verdict, were affirmed by this court. State v. Malady, 672 S.W.2d 171 (Mo.App.1984).

Movant’s first point is that he was entitled to relief on his motion, and the trial court erred in ruling otherwise, because movant’s counsel at the jury trial rendered movant ineffective assistance of counsel “by failing to conduct a proper and adequate voir dire of the jury panel, which prejudiced movant by denying movant a full panel of jurors objectively demonstrated as qualified from which to make his peremptory strikes, since trial counsel failed to ask any questions designed to draw out bias or prejudice on the part of any of the potential jurors.”

Appellate review in this proceeding is limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous. Rule 27.-26(j); Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984).

“In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced.”

Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

In support of the foregoing proposition, the court in Sanders relied upon Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979). The court, in Sanders, also said, at 857:

[71]*71“A criminal defendant must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim. In reviewing such a claim, courts are not required to consider both prongs; if a defendant fails to satisfy one prong, the court need not consider the other. And, a court need not determine the performance component before examining for prejudice. If it is easier to dispose of the claim on the ground of lack of sufficient prejudice, the reviewing court is free to do so.” (Emphasis in original.)

In connection with its discussion of the “performance prong,” the Court in Strickland said, 104 S.Ct. at 2065: “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ”

In its discussion of the “prejudice prong,” the Court in Strickland said, at 2068: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” The Court also said, at 2069: “[A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.”

In the instant proceeding the trial court found that movant failed to meet either the performance prong or the prejudice prong of the Strickland test. For the reasons which follow, this court agrees with those findings.

The transcript of the jury trial, including the voir dire examination of the veniremen, was received into evidence at the motion hearing. At the jury trial, the judge asked several questions of the veniremen, including questions designed to elicit any statutory disqualification to serve as a juror, relationship to the burglary victim, and knowledge of the offense on trial. After the trial judge completed his interrogation of the veniremen, the prosecutor informed the court that he had read questionnaires which had been filled out by each of the veniremen and did not need to “ask a single question of them.”

Movant’s trial counsel, Raymond Klemp, then interrogated the veniremen individually and obtained information from them concerning their respective backgrounds. That portion of Mr. Klemp’s voir dire examination occupies 26 pages of the jury trial transcript. Mr. Klemp then directed some questions to the veniremen as a group and no unfavorable response was received.

At the hearing on the motion Mr. Klemp, called as a witness by movant, testified that he had “done much examination and history about the people on that jury weeks before the trial.” Mr. Klemp, whose office was in a nearby county, also said that he had discussed the list of veniremen with two local attorneys who had practiced many years in the county where the trial was held. He also discussed with them the information contained in the questionnaires. The two local attorneys gave Mr. Klemp their advice concerning the “potential jurors and what their inclination would be concerning a criminal case.” The two lawyers told Mr. Klemp it was a “pretty good jury.”

Mr. Klemp also testified that he concluded not to conduct “a long siege of questioning on voir dire,” and that one factor in that decision was that the prosecutor had posed no question to the veniremen. Mr. Klemp testified that he “felt fairly comfortable about [his] knowledge of the jurors.” With regard to his questioning of the veniremen individually, Mr. Klemp said: “There was one-on-one contact between me and each of the jurors I talked to, and I certainly had the opportunity to observe them as they responded back to me.... I felt they were qualified jurors and I have no reason today to feel otherwise.”

Significantly, although movant’s counsel in this proceeding argues that several questions should have been propounded to the veniremen, movant adduced no evidence of [72]*72what the answer of any veniremen would have been to any of the omitted questions.

“Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland v. Washington, supra, 104 S.Ct. at 2066. Rarely will a strategic decision of trial counsel be declared so unsound that it constitutes ineffective assistance of counsel. Brayfield v. State, 738 S.W.2d 579, 582 (Mo.App.1987); Porter v. State, 682 S.W.2d 16, 19 (Mo.App. 1984).

The method of conducting a voir dire examination is usually a matter of trial strategy lying within the sound discretion of trial counsel. Magwood v. Smith, 791 F.2d 1438 (11th Cir.1986); Com. v. Fudge, 20 Mass.App. 382, 481 N.E.2d 199 (1985); Stover v. State, 674 P.2d 566 (Okla.Cr. 1984). Any alleged dereliction of counsel with respect to voir dire examination must, of course, satisfy the Strickland test. Sanders v. State, supra;

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ronald Tucker v. State of Missouri
Missouri Court of Appeals, 2015
Tucker v. State
468 S.W.3d 468 (Missouri Court of Appeals, 2015)
Harold Morse v. State of Missouri
Missouri Court of Appeals, 2015
Morse v. State
462 S.W.3d 907 (Missouri Court of Appeals, 2015)
Donovan E. Tate v. State of Missouri
461 S.W.3d 15 (Missouri Court of Appeals, 2015)
Morrow v. State
21 S.W.3d 819 (Supreme Court of Missouri, 2000)
Ogle v. State
807 S.W.2d 538 (Missouri Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
748 S.W.2d 69, 1988 Mo. App. LEXIS 258, 1988 WL 24601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malady-v-state-moctapp-1988.