Sherrill v. State

755 S.W.2d 718, 1988 Mo. App. LEXIS 1154, 1988 WL 83261
CourtMissouri Court of Appeals
DecidedAugust 12, 1988
DocketNo. 15609
StatusPublished
Cited by2 cases

This text of 755 S.W.2d 718 (Sherrill 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
Sherrill v. State, 755 S.W.2d 718, 1988 Mo. App. LEXIS 1154, 1988 WL 83261 (Mo. Ct. App. 1988).

Opinion

CROW, Presiding Judge.

F.oyce Alan Sherrill (“movant”) appeals fr jm a judgment denying his amended motion under Rule 27.26, Missouri Rules of Criminal Procedure (18th ed. 1987),1 to vacate his conviction of first degree murder, § 565.003, RSMo 1978,2 and sentence of life imprisonment. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Sherrill, 657 S.W.2d 731 (Mo.App. 1983).

In the instant appeal movant briefs one point, which avers he was denied effective assistance of counsel in the 27.26 proceeding in the circuit court (henceforth referred to as “the motion court”). Movant’s amended motion to vacate, filed in the motion court with the assistance of appointed counsel (henceforth referred to as “motion counsel” 3) alleged, insofar as pertinent to this appeal:

“Movant was denied a fair and impartial jury, when one of the lady jurors was selected to serve on the jury. Later it was discovered that this one lady juror worked at the local bank and was personally involved with the deceased in that the lady juror was friends with the deceased and his wife. When the jury returned with their verdict of guilty, this one lady juror was seen looking at the deceased’s wife and giving an all knowing smile and a physical hand sign that indicated she had personally conspired to convict the movant.”

Motion counsel presented three witnesses in the motion court in support of the above allegation. The first, Dana Chere Pliler, testified that as the jury was leaving the courtroom following the return of the verdict she saw “one of the ladies of the jury look over at the [victim’s] family and wave and smile at them, and she went on.” Asked about the identity of the juror, Ms. Pliler responded that the juror was the one who “read the verdict.” Ms. Pliler conceded she never reported the incident to the attorneys who represented movant at trial.

Dorothy Watson, movant’s mother, testified, “I seen this dark-headed lady, you know, the one that came up and read the verdict smile at the [victim’s family], look at the [victim’s family] and smile and ... leave.” Asked whether she knew the juror’s name, Ms. Watson answered: “I don’t. I have been trying to find her, but I don’t know which one’s which. All I have is a list, so I don’t know.” Ms. Watson, like Ms. Pliler, acknowledged she did not report the incident to the attorneys who represented movant at trial.

Movant testified: “I saw a dark-headed lady, well-dressed, after the verdict was read, she looked over at the family and just [720]*720smiled with — and I saw that and that was about it.” Movant admitted he did not report the incident to the attorneys who represented him at trial. Movant explained that although he did not know the juror’s name, he believed the juror was the fifth one chosen.

The motion court made findings of fact, which included the following:

“[Cjounsel [who represented movant at trial] had no information prior to jury being sworn that any juror was personally involved with the victim, and movant produced no evidence, of personal involvement of any juror, in present 27.26 hearing.”

Movant’s point on appeal is:

“The [motion] court erred in denying [movant’s] motion to vacate ... because [movant] was denied effective assistance of postconviction counsel ... in that counsel failed to introduce any evidence in support of [movant’s] allegation of juror bias thereby depriving [movant] of a full and fair evidentiary hearing as contemplated by ... Rule 27.26(e) and foreclosing any opportunity for [movant] to establish this claim for postconviction relief.”

The argument portion of movant’s brief avers that motion counsel “was not prepared to introduce any evidence to substantiate [movant’s] allegation of juror bias.” Motion counsel, according to movant, “did not perform [the] obligation to present evidence in support of [movant’s] claim.” Insisting that the motion court’s denial of relief “was based upon ... failure of [motion] counsel to produce evidence,” movant asks us to reverse the motion court’s judgment and remand the cause for a new evidentiary hearing.

Our first observation is that movant’s assertion that motion counsel failed to present any evidence in support of mov-ant’s claim of juror bias is a blatant misstatement of the record.' Motion counsel, as we have seen, presented the testimony of movant and two other witnesses on that issue. Nowhere in movant’s testimony in the motion court, which occupies 13 pages of the transcript, did movant identify any other witnesses he wanted motion counsel to call, and nowhere in his brief does mov-ant inform us of the “evidence” favorable to him that motion counsel neglected to present. While we might speculate that movant is implying motion counsel should have called the juror whose conduct was in question — assuming the juror’s name could have been ascertained — movant’s brief carefully avoids saying so. We find nothing in the record on appeal or in movant’s brief setting forth what the testimony of such juror would have established.

Our second observation is that movant’s point on appeal raises an issue that was neither presented to, nor decided by, the motion court. Nowhere in the record is there any indication that movant complained to the motion court about the performance of motion counsel. Consequently, motion counsel never had occasion to explain why no further evidence was presented in support of movant’s claim of juror bias. It may be that there was no evidence favorable to movant on that issue except the evidence presented by motion counsel. Indeed, any assumption by us that the juror in question or the members of the victim’s family would have supplied testimony supporting movant’s allegation that the juror was a friend of the victim and his wife would be utter conjecture.

In Williams v. State, 507 S.W.2d 664 (Mo.App.1974), a prisoner, in an appeal from a judgment denying his second motion for post-conviction relief under Rule 27.26, asserted, among other things, that he had been denied effective assistance of counsel in both his first and second actions under Rule 27.26. Id. at 666. Affirming the denial of relief, the Western District of this Court said:

“Were a prisoner permitted to challenge the effectiveness of his legal counsel at the first 27.26 hearing by means of filing a second 27.26, then he could likewise challenge his representation at the second hearing by filing a third 27.26, and so on ad infinitum. That patent absurdity would intolerably clutter the courts and would reduce the whole legal process to ridicule. The rule in Missouri avoids [721]*721that result by declaring that proceedings under Rule 27.26 must be directed to defects which led to the original sentencing. Huffman v. State, 487 S.W.2d 549 (Mo.1972); McCormick v. State, 502 S.W.2d 324 (Mo.1973).” Williams, 507 S.W.2d at 666-67.

In Neal v. State, 569 S.W.2d 388 (Mo.

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

Related

State v. Taylor
779 S.W.2d 636 (Missouri Court of Appeals, 1989)
Hale v. State
767 S.W.2d 612 (Missouri Court of Appeals, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
755 S.W.2d 718, 1988 Mo. App. LEXIS 1154, 1988 WL 83261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherrill-v-state-moctapp-1988.