Presley v. State

750 S.W.2d 602, 1988 Mo. App. LEXIS 535, 1988 WL 33317

• Court: Missouri Court of Appeals
• Decided: April 15, 1988
• Docket: 15177, 15188
• Status: Published

Opinions

FLANIGAN, Judge.

Movant Kenneth Presley and the State of Missouri filed separate appeals from the trial court’s order, entered after evidentia-ry hearing, sustaining with respect to one ground, but overruling with respect to the other grounds, movant’s Rule 27.26¹ motion to set aside a judgment and sentences for seven sexual offenses. The convictions were based on a jury verdict returned after defendant was tried on a multi-count information. This court affirmed the convictions, State v. Presley, 694 S.W.2d 867 (Mo.App.1985). The two appeals have been consolidated in this court and the appeal of the state, taken pursuant to § 512.020 (see Rule 27.26(j)), will be considered first.

The trial court’s order vacated the judgment containing the convictions and granted movant a new trial on all counts of the information. The ground on which the trial court based its order was that movant was denied effective assistance of counsel at the jury trial in that his counsel failed to challenge for cause venireman Francis Cates who, following voir dire examination, sat as a member of the jury. The state’s appeal challenges the trial court’s ruling with respect to that ground.

It is the position of the state that the trial court erred in granting movant relief because: (a) even if counsel’s failure to challenge for cause venireman Cates was a mistake, the record fails to demonstrate prejudice, and a showing of prejudice is required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2066[15], 80 L.Ed.2d 674 (1984); and (b) the ground on which the trial court granted relief, improper jury selection, may not be considered in this Rule 27.26 proceeding because movant waived it by not raising it on his direct appeal from the jury trial.

The material events took place during the voir' dire examination segment of the jury trial. In response to defense counsel’s inquiry, “Anyone else ever been a victim of a crime?”, venireman Cates replied that “seven years ago” his home was burglarized, “the businesses have been broken into several times and one armed robbery, and my daughter was exposed by an exhibitionist about three years ago that we reported.” The following colloquy then took place:

“DEFENSE COUNSEL: Were you in your place of business when you had the armed robbery?

VENIREMAN CATES: No.

DEFENSE COUNSEL: Was it in the place of business?

VENIREMAN CATES: Yes.

DEFENSE COUNSEL: Anything about that or the burglary of seven years ago or your daughter’s incident which would make you unable to sit in judgment fairly on my client, fairly today?

VENIREMAN CATES: I don’t, yes, I think I’d be a little partial to your client, or against your client.

DEFENSE COUNSEL: You’d be partial to the state?

VENIREMAN CATES: Right.”

At the conclusion of the voir dire examination defense counsel made three challenges for cause, two of which were sustained and one, against venireman Fetter, was denied. None of those challenges involved venireman Cates.

At the motion hearing, counsel for both sides stipulated that the jury list, used by the trial judge at the jury trial, bore the comment “partial to state” opposite the name of venireman Cates, and that the comment was written by the trial judge during the voir dire examination.

At the motion hearing, under questioning by counsel for the state, movant testified as follows:

Q. Did you hear your attorney call for the strikes?

A. Yes.

Q. Did you object?

A. I objected to him striking Mr. Fetter instead of Mr. Cates.

Q. Did you tell him that in court?

A. Yes, I did.

Q. In open court?

A. Yes, I did.

Q. Did you tell the court that you objected to that?

A. No, he advised me to keep quiet, he was my attorney.

At the motion hearing, the state called the attorney who had represented movant at the jury trial. He testified that he remembered venireman Cates and that he had made notes while conducting his voir dire examination. Asked why he had not challenged Cates for cause, the attorney stated, “I looked at my notes today and it’s my impression that I remember him saying he was not impartial.... I realize that in the transcript Cates said he could not be impartial. My notes and my recollection of what Cates said were different from what the transcript says.... I did say in my notes that certain veniremen were prejudiced, but I had no such notation by Cates’ name.... I don’t recall whether [movant] made objections to me at the time of voir dire on my failure to strike Cates.... When I read the transcript [of voir dire examination] last night and this morning, the transcript is different from what my recollection was. The reason I did not ask for [Cates] to be stricken was I believed at that time he was impartial.”

The transcript of the voir dire examination mentioned by defense counsel was only a partial one when he testified at the motion hearing. Thereafter, Judge Donald Bonacker, who presided at the motion hearing after movant had disqualified the judge who had presided at the jury trial, obtained a complete transcript of the voir dire examination. The complete transcript, admitted into evidence in the motion proceeding by agreement of the parties, contained nothing which would serve to rehabilitate venireman Cates from the partiality which he had candidly expressed.

Judge Bonacker’s findings of fact included the following:

“8. The members of the jury panel, or Juror Cates in particular, were not asked at any stage of the voir dire examination whether they believed they could be or would be fair and impartial if selected as a member of the jury.

9. Juror Cates, frankly, intelligently, clearly and honestly answered all questions placed to him during voir dire examination and revealed he was partial to the state.

10. Defense counsel failed to request the removal of Juror Cates from the jury panel for cause.

11. Defense counsel was the sole counsel for Movant at the trial and the Court does believe that his duties in maintaining notes, mental and written, during his voir dire examination of the jury caused him to move to strike another juror from the panel for cause believing he was moving to strike the juror who answered as indicated above. The motion to strike another juror for a reason that could have been assigned to Juror Cates was denied.

12. This Court firmly believes the trial judge would have sustained a motion to strike Juror Cates, if the motion had been made.

13. ... [T]rial counsel wrote in his notes ‘prejudiced in favor of State’ next to the name of another juror and this court believes [defense] counsel attributed the statement of Juror Cates to another juror in his notes, by mistake. The trial judge did not correct defense counsel’s identification of the juror making that response.”

In this court the brief of the attorney general, representing the state on this appeal, states: “[Tjhere is little question that the defense attorney, based upon his notes taken during the voir dire examination, challenged venireman Fetter for the actual reason that would have supported a strike of venireman Cates.” The state’s brief also states that venireman Cates’ comments “would certainly have provided support for a request to strike him for cause” and that “the record reveals a sad failure on the part of defense counsel, the prosecution, and the trial court, to further pursue this matter.”

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). For the reasons which follow, this court holds that the judgment of the trial court granting relief on the ground under consideration is not clearly erroneous.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court said at 104 S.Ct. 2064:

“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

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A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”

At p. 2067 the Court said:

“In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel’s assistance. See United States v. Cronic, 466 U.S., [648] at 659, and n. 25, 104 S.Ct., [2039] at 2046-2047, and n. 25 [80 L.Ed. 2d 657 (1984)]. Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.

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Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice.”

At p. 2069 the court said:

“Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.”

“A criminal defendant in a state court is guaranteed an ‘impartial jury’ by the Sixth Amendment as applicable to the State’s through the Fourteenth Amendment....” Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 1020, fn. 6, 47 L.Ed.2d 258 (1976). “In essence, the right to jury trial guarantees to the criminally accused a jury trial by a panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.” Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).

“An ‘impartial jury’ is one where each and every one of the twelve members constituting the jury is totally free from any partiality whatsoever.” Mares v. State, 83 N.M. 225, 490 P.2d 667, 668[3] (1971). (Emphasis in original.) "... [A] trial by jury, one or more of whose members is biased or prejudiced, is not a constitutional trial.” State v. Stiltner, 80 Wash.2d 47, 491 P.2d 1043, 1047 (banc 1971). “... [T]he right to trial by jury guarantees that each and all of those composing the jury be unbiased and without prejudice toward any party.” Isabelle v. Proctor Hospital, 129 Vt. 500, 282 A.2d 837, 840[6] (1971).

Missouri cases dealing with a challenge for cause based on the prejudice of a venireman are consistent with the foregoing principles. A criminal defendant is entitled to a full panel of unqualified jurors before making his peremptory challenges. State v. Hopkins, 687 S.W.2d 188 (Mo. banc 1985); State v. Zweifel, 570 S.W.2d 792 (Mo.App.1978). If for any reason, statutory or otherwise, a venireman is not in a position to enter the jury box with an open mind, free from bias or prejudice, he is not a competent juror. State v. Carter, 544 S.W.2d 334, 337 (Mo.App.1976). When it is shown that a venireman lacks impartiality, a challenge for cause must be sustained. State v. Hopkins, supra, 687 S.W.2d at 190[4]. When a venireman states that he cannot be a fair and impartial juror, “[t]here is no stronger way a venireman can tell the court and counsel that he will not be the kind of juror every criminal defendant is entitled to have.” State v. Watson, 595 S.W.2d 754, 758 (Mo.App.1980).

Out-state cases dealing with a claim of ineffective assistance of counsel based' on counsel’s failure to challenge a venireman, and decided after Strickland v. Washington, supra, include the following: Wicker v. McCotter, 783 F.2d 487 (5th Cir.1986); Isom v. State, 284 Ark. 426, 682 S.W.2d 755, 757 (1985); People v. Moody, 676 P.2d 691, 696 (Colo. banc 1984); Gordon v. State, 469 So.2d 795, 797 (Fla.App.1985); Marsillett v. State, 495 N.E.2d 699, 706 (Ind.1986); State v. Pender, 687 S.W.2d 714, 718 (Tenn.Cr.App.1984); Parker v. State, 693 S.W.2d 640 (Tex.App.1985). In those cases, except in Gordon, it was not established that counsel was ineffective.

In Wicker counsel explained his decision to accept the questioned venireman, and the court held that counsel reached a strategic decision “of the kind that able defense counsel frequently make. This is effectiveness, not ineptness.” In Moody counsel plausibly explained his decision not to challenge a certain venireman as a matter of trial strategy. In Marsillett the court said that challenging a venireman is a matter of trial strategy and the failure to remove a venireman who has some relationship to the victim or the defendant, “without more,” does not demonstrate ineffective assistance. In Isom and in Pender the court held that the petitioner failed to show that the venireman was biased and that he had a burden to do so. In Parker the court emphasized the importance of having a record showing the reason for counsel’s failure to challenge the venireman but refrained from granting petitioner relief. The venireman had stated that if the defendant failed to testify she would assume that he was “hiding something.” In Gordon ineffective assistance of counsel was found where counsel was guilty of several deficiencies including permitting a woman to sit as a juror when she had slated on voir dire that she was biased.

Citing Strickland v. Washington, supra, the state argues that in view of the strong evidence presented at the trial, mov-ant makes no showing that but for counsel’s alleged error the outcome of the trial would have been different. The state relies on the “prejudice” requirement of Strickland.

The instant record shows that the jury contained one juror who was, by his own admission, biased. That was tantamount to a denial of the right to trial by jury. It is no answer to say that the other 11 jurors were free of bias and all of them agreed upon a verdict of guilty. “A constitutional jury means twelve men as though that number had been specifically named; and it follows that, when reduced to eleven, it ceases to be such a jury quite as effectively as though the number had been reduced to a single person.” Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 256, 74 L.Ed. 854 (1930).²

The instant situation, this court holds, is an example of the type the Court envisioned by the language in Strickland: “In certain Sixth Amendment contexts, prejudice is presumed.” There was here a denial of the right to trial by jury. This fits the Strickland language, at 104 S.Ct. 2067, that “prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.”

The state also argues that movant waived the biased juror matter by not raising it on direct appeal, and cites such cases as Smith v. State, 684 S.W.2d 520 (Mo.App.1984), and McGrath v. State, 671 S.W.2d 420 (Mo.App.1984). In Smith the claim of ineffective assistance of counsel was based on counsel’s failure to move to quash the jury panel on grounds of intentional exclusion of blacks. In McGrath the claim of ineffective assistance of counsel was based on counsel’s failure to object to the jury selection process. Those cases are distinguishable. Neither of them involved a situation where an admittedly biased person sat on the jury which returned the challenged conviction.

Moreover, even if movant, on the direct appeal from the jury trial, had attacked the verdict on the ground that venireman Cates was an incompetent juror, it is not clear that his appeal would have succeeded. His counsel had made no challenge to venireman Cates, and there was no record, as there now is in this Rule 27.26 proceeding, to show the reason Cates was not challenged for cause. Although the judge at a jury trial has authority to act on his own initiative in excusing a juror, the general rule is that he has no duty to do so.³ State v. Overby, 432 S.W.2d 277 (Mo.1968); State v. Anderson, 384 S.W.2d 591 (Mo. banc 1964); State v. McWilliams, 370 S.W.2d 336 (Mo.1963); State v. Naylor, 40 S.W.2d 1079 (Mo.1931); State v. Woods, 662 S.W.2d 527 (Mo.App.1983); State v. Johnson, 637 S.W.2d 290 (Mo.App.1982); State v. Dodson, 595 S.W.2d 59 (Mo.App.1980); State v. Marshall, 571 S.W.2d 768 (Mo.App.1978); State v. Lane, 551 S.W.2d 900 (Mo.App.1977); State v. Morrison, 545 S.W.2d 376 (Mo.App.1976); State v. Gamache, 519 S.W.2d 34 (Mo.App.1975). In McWilliams, Naylor, Woods, Dodson, Marshall, and Morrison, the trial judge on his own initiative excused a juror. In Overby, Anderson, Johnson, Lane, and Gamache, the trial judge took no action with respect to a juror whose qualifications were not timely challenged. In all of those cases the convictions, on direct appeal, were affirmed.

It is also unlikely that movant’s present claim of ineffective assistance of counsel would have succeeded or even have been entertained on his direct appeal from the jury case because, ordinarily, such a claim is properly handled in a Rule 27.26 proceeding rather than on a direct appeal from the criminal conviction. State v. Williams, 652 S.W.2d 102, 116[37] (Mo. banc 1983); State v. Mitchell, 620 S.W.2d 347, 348[3] (Mo. banc 1981).

It must be remembered that there was no complete transcript of the voir dire examination until the conclusion of the motion hearing, at which time it was compiled and admitted into evidence by agreement. The motion court did not clearly err in rejecting the state’s argument of waiver in not raising the point on appeal because it could reasonably infer that it would have been futile to do so. Although the state argues that the defendant himself, as distinguished from his counsel, waived the error by not complaining of it in post-trial pleadings which he filed pro se, it cannot be said that the trial court clearly erred in ruling otherwise.

There is nothing in the instant record to suggest that counsel’s failure to challenge venireman Cates for cause stemmed from any motive to “sandbag.” Counsel’s mistake, although flagrant, was unintentional. The right to effective assistance of counsel “may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial.” Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2650[8], 91 L.Ed.2d 397 (1986).

This court holds that the judgment of the trial court granting relief on the ground under consideration is not clearly erroneous. The brief of movant on his cross-appeal states, “If this court affirms the decision of the hearing court, the issues raised herein will be moot.” Accordingly, the appeal in No. 15188-2, Kenneth Presley, Mov-ant-Appellant, vs. State of Missouri, Respondent, is dismissed.

The judgment is affirmed.

CROW, C.J., and HOGAN, GREENE and HOLSTEIN, JJ., concur. MAUS and PREWITT, JJ., file dissenting opinions.

1 . Except where otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1986, V.A.M.S.

Ride 27.26 was repealed, effective January 1, 1988, by order of the Supreme Court of Missouri, see 721-722 S.W.2d (Missouri Cases) XXV, and new rules were adopted in lieu thereof.

On the instant appeals, post-conviction relief continues to be governed by the provisions of Rule 27.26, because the sentences were pronounced prior to January 1, 1988, and movant’s motion under Rule 27.26 was then pending. See Rule 29.15(m), effective January 1, 1988, 721-722 S.W.2d (Missouri Cases) XXV, XXXI.

2 . In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 1905, 26 L.Ed.2d 446 (1970), the Court held: "The twelve-man requirement cannot be regarded as an indispensable component of the Sixth Amendment," and upheld a criminal conviction in a Florida state court by a six-member jury.

3 . ABA Standards for Criminal Justice Standard 15-2.5 (1986) reads, in pertinent part: “If the judge after examination of any juror is of the opinion that grounds for challenge for cause are present, the judge should excuse that juror from the trial of the case. If the judge does not excuse the juror, any party may challenge the juror for cause_"

The commentary under Standard 15-2.5 reads, in pertinent part: "... Although the standard emphasizes the responsibility of a judge to excuse prospective jurors when appropriate, this does not mean that a defendant may make no challenge and then later complain because the judge did not excuse a juror without challenge. Failure of the judge to act without defense challenge having been made is not in itself grounds for subsequent objection....”

The United States Supreme Court has at least implied that there may be a situation where the trial court, in the absence of a challenge to a venireman, must disqualify him of its own motion. In Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 210, 93 L.Ed. 187 (1948), the court said: “Whether or not employment in the Treasury outside the Narcotics Bureau would constitute ground for challenge for ‘actual bias,’ such employment in the connections disclosed here affecting Moore and Root was not so obvious a disqualification or so inherently prejudicial as a matter of law, in the absence of any challenge to them before trial, as to require the court of its own motion or on petitioner's suggestion afterward to set the verdict aside and grant a new trial.”