Ogle v. State

807 S.W.2d 538, 1991 Mo. App. LEXIS 560, 1991 WL 57817
CourtMissouri Court of Appeals
DecidedApril 19, 1991
DocketNo. 17091
StatusPublished
Cited by8 cases

This text of 807 S.W.2d 538 (Ogle 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
Ogle v. State, 807 S.W.2d 538, 1991 Mo. App. LEXIS 560, 1991 WL 57817 (Mo. Ct. App. 1991).

Opinion

CROW, Judge.

Cecil George Ogle (“movant”) appeals from a judgment denying his motion under former Rule 27.261 to vacate his conviction of rape by forcible compulsion, § 566.030.1(1), RSMo 1978, and 20-year prison sentence. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Ogle, 668 S.W.2d 138 (Mo.App.1984), cert. denied, 469 U.S. 845, 105 S.Ct. 154, 83 L.Ed.2d 91 (1984). The evidence in the rape trial, which we need not set forth here, is synopsized in that opinion.2

In denying post-conviction relief the circuit court, henceforth referred to as “the motion court,” conducted an evidentiary hearing on movant’s multitudinous allegations and, with praiseworthy thoroughness, entered meticulous findings of fact and conclusions of law.

In this appeal movant presents one point relied on; it avers the motion court erred in rejecting movant’s claim that he received ineffective assistance of counsel at the jury trial. Movant maintains his lawyer (“defense counsel”) failed to challenge two biased veniremen, Schenk and Stephens, “either for cause or peremptorily.” Movant refers us to the following dialogue during voir dire:

“[Defense counsel]: ... Is there anyone here who has been a victim or thinks they might have been a victim of a violent crime once in their life?
[540]*540(No response.)
[Defense counsel]: I don’t see any hands. How about someone, maybe, in your family or a good friend or a close neighbor? Anyone have a situation like that with someone like that who you thought pretty well either was a victim of a violent crime or thought they might have been?
(Juror raises hand.)
[Defense counsel]: Mr. Schenk?
Juror Schenk: Same thing happened to my sister.
[Defense counsel]: When you say, ‘the same thing — ’
Juror Schenk: Well, from what is—
[Defense counsel]: Your sister, there was a rape case involving your sister?
Juror Schenk: Right.
[Defense counsel]: Do you think that that might make you uncomfortable to sit in judgment in this case?
Juror Schenk: Boy, I don’t know. Its my wife’s sister. Its hard to say. I really don’t know.
[Defense counsel]: How long ago did that happen?
Juror Schenk: Seems like it was in May, two years ago, be ’80.
[Defense counsel]: Do you have any doubt that you can set that out of your mind when it comes to deciding the evidence in this case?
Juror Schenk: Probably would.
[Defense counsel]: Probably. Anyone else?
(No response.)
[Defense counsel]: Is there anybody that’s ever been a witness in a criminal case? Were you a witness in that case?
Juror Schenk: No.
[[Image here]]
[Defense counsel]: ... Mr. Stephens, you have been on a jury, ... is that right?
Juror Stephens: Yes, civil case.
[Defense counsel]: ... I will direct the question ... to you, Mr. Stephens. You have heard the Court’s instructions about reasonable doubt and [the prosecutor] went into it at some length. Do you understand that if you are selected to sit on this jury that you will be applying a different standard in this case than you did in your civil case; do you understand that?
[[Image here]]
Mr. Stephens: Yes, sir.
[Defense counsel]: And that unlike in the civil case where you were required only to believe something, in this case you will be required to believe it beyond a reasonable doubt, do you understand that?
[[Image here]]
Juror Stephens: Yes, sir.
[Defense counsel]: And so that if there is a reasonable doubt in your mind as to defendant’s guilt, you must find him not guilty?
[[Image here]]
Juror Stephens: Yes, sir.
[Defense counsel]: Even if you believe he is guilty? ... Did that make you—
Juror Stephens: Well, it makes you wonder, you know, kind of hesitant, I guess.
[Defense counsel]: That’s understandable because I think the thing is that most people in their everyday decisions don’t apply any standard of deciding everyone of their everyday decisions beyond a reasonable doubt. Cloudy day outside-or it was earlier-and if you had to decide whether you were going to go on a picnic beyond a reasonable doubt, pretty hard to decide if you were going to go or not. Is there anybody who thinks they might have a problem if they have got a reasonable doubt in their minds, returning a verdict of not guilty?
Juror Stephens: Yes, (Nods.)
[Defense counsel]: Mr. Stephens, you nodded your head.
Juror Stephens: To be honest, I don’t know how I would feel, really. I mean, just to be honest with you.
[Defense counsel]: I don’t mean to put you on the spot and I appreciate your honesty. Anybody else who might have a problem with that? This is the time that both the State and the defendant need to think about that.
[541]*541Juror Stephens: This particular case, I would have my doubts, to be honest with you.”

After counsel completed voir dire the trial court addressed venireman Stephens:

“The Court: Mr. Stephens, let me ask you a question. Do you feel-think-you indicated you had some doubts during [defense counsel’s] questioning. Do you feel that you can follow the Court’s instructions I am going to give to you?
Juror Stephens: Yes.
The Court: Do you feel you can render a verdict in this case based upon the evidence that you hear?
Juror Stephens: Yes.”

Defense counsel challenged five members of the venire for cause, but not Schenk or Stephens. The trial court granted two of the challenges, and a third became effective when the trial court excused the challenged member because she was unneeded in assembling a panel of 24. Neither side used a peremptory challenge against Schenk or Stephens, and they were members of the jury that convicted mov-ant.

In the motion court movant testified he had no reason to want Schenk and Stephens on the jury and had no discussion with defense counsel about reasons for keeping them on the jury.

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Cite This Page — Counsel Stack

Bluebook (online)
807 S.W.2d 538, 1991 Mo. App. LEXIS 560, 1991 WL 57817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ogle-v-state-moctapp-1991.