State v. Wheat

775 S.W.2d 155, 1989 Mo. LEXIS 86, 1989 WL 95044

• Court: Supreme Court of Missouri
• Decided: August 21, 1989
• Docket: 71170
• Status: Published

Opinions

RENDLEN, Judge.

Larry Wheat, convicted of sexual abuse in the first and second degree, was sentenced as a prior offender to five years’ and one year imprisonment, respectively, for the offenses charged. His criminal conduct involved molesting two sisters, aged eleven and thirteen, who lived in a trailer home a short distance from defendant. They testified that defendant entered the bedroom where they had been sleeping and fondled their private parts, and though defendant admitted having been in the children’s room, he claimed he was watching over them while their father was at work on night shift employment. Both girls had known Wheat for several years.

On appeal, defendant first complains trial counsel was ineffective for having called two deputy sheriffs who, on direct examination, testified that defendant was guilty of other acts of misconduct toward the girls, including threatening one of them with a knife. Defendant contends that in the initial phase of the trial, the defense was predicated on a strategy of showing the trial testimony of the complaining witnesses was unreliable because of inconsistencies as against their prior extrajudicial statements. Though some favorable testimony was elicited, on balance the deputies’ testimony was somewhat hurtful. Defendant says he was ill-served by his attorney’s performance and for this reason alone should receive a new trial.

Sentenced on January 19, 1988, defendant is subject to Supreme Court Rule 29.-15, which replaced prior Rule 27.26 governing such postconviction relief proceedings. In the case at bar, the dispositive features of the rule include the following:

A person convicted of a felonyf,] after trial[,] claiming that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States ... may seek relief in the sentencing court pursuant to the provisions of this Rule 29.15.

Further, the subsection pro-Rule 29.15(a). vides with specificity that “[t]his Rule 29.15 provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated (emphasis added).”

It is also provided with unmistakable clarity that if a conviction is appealed, a motion under the rule shall be filed within thirty days after filing of the transcript on appeal:

A person seeking relief pursuant to this Rule 29.15 shall file a motion to vacate ... the judgment ... substantially in the form of Criminal Procedure Form 40. If an appeal of the judgment sought to be vacated ... was taken, the motion shall be filed within thirty days after the filing of the transcript in the appeal pursuant to Rule 30.04. If no appeal of such judgment was taken, the motion shall be filed within ninety days of the date the person is delivered to the custody of the department of corrections.

Rule 29.15(b) (emphasis added). This subsection ends with the following mandatory condition:

Failure to file a motion within the time provided by this Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15.

(Emphasis added.) There is no dispute that appellant, though cautioned by the trial judge as to the availability of the postcon-viction proceeding, allowed the time to expire and has not filed a motion under Rule 29.15. Hence, for the reasons discussed herein the right to raise the claim of ineffective assistance of trial counsel in a 29.15 proceeding was waived.

The appeal was taken to the Missouri Court of Appeals, Western District, where the judgment was affirmed. We granted transfer to determine the extent to which such claim may be determined on direct appeal in light of the repeal of former Rule 27.26 and the adoption of new Rule 29.15. Determining the cause as on original appeal, Mo. Const, art. V, § 10, we affirm and in so doing draw on portions of the well-reasoned opinion of Judge Clark.

Defendant concedes that he has failed to file a motion to vacate in the trial court under Rule 29.15, and he recognizes the nominal effect of this failure. He argues, however, under old Rule 27.26 appellate courts had consented in cases of direct appeal to review postconviction claims of ineffective assistance of trial counsel where a record in the trial court was sufficient to permit appellate review, citing, for example, State v. Settle, 670 S.W.2d 7 (Mo.App.1984), a case in which ineffective assistance of counsel was reviewed on direct appeal.

The former Rule 27.26, in effect when Settle and similar cases were decided,¹ was markedly different from Rule 29.15, particularly in the lack of time constraints for filing the motion to vacate. By raising a claim of ineffective assistance of counsel for the first time on direct appeal, a defendant subject to Rule 27.26 ran quite a different risk of waiving his ultimate right to present his claim. The appellate court too faced quite a different question when determining whether the claim should be considered on direct appeal. The court typically would determine if the record was adequate or whether to require the defendant to return to the trial court with a motion and the opportunity to present further evidence. Those options are replaced by significantly different procedures and new standards for postconviction proceedings.

Under the explicit language of the new rule, the scheme fashioned there provides the “exclusive procedure ” by which a person may seek relief in the sentencing court, and as noted above, failure to file such motion constitutes a complete waiver of the right. Not only are defendants given clear notice of these procedures by the rule, but here defendant was personally cautioned by the trial judge as to the consequences if he failed to preserve his right. From this it necessarily follows that claims for relief cognizable under the rule may not be considered when presented for the first time on appeal; this proposition flows from the plain language of Rule 29.15. Defendant’s contention is denied.

The next point centers on the qualifications of venireman Kaver. In the course of voir dire, Kaver stated that he was employed by the Missouri Department of Corrections and for nearly twenty years served in various positions as a correctional officer, classification assistant, counselor, caseworker and unit manager. He expressed concern about serving as a juror because if the defendant were convicted, it was possible that he might be confined in an institution where Kaver was assigned to work, which might present an unfortunate confrontation and possible brouhaha in his employment. He was apprehensive about the possibility of such encounter if he served on a jury which convicted defendant and later found himself with supervisional responsibility over defendant in a state institution. When questioned about his ability to sit on the jury and decide the case fairly and impartially based on the facts, Kaver answered, “I am sure I could.” Defendant first challenged Kaver for cause and later exercised a peremptory strike to excuse this venireman.

A criminal defendant is entitled to a full panel of qualified jurors before he is required to expend his peremptory challenges; denial of a legitimate request to excuse for cause a partial or prejudiced venireman constitutes reversible error. State v. Johnson, 722 S.W.2d 62, 65 (Mo. banc 1986). To qualify as a juror, the venireman must be able to enter upon that service with an open mind, free from bias and prejudice. State v. Hendrix, 646 S.W.2d 830, 832 (Mo.App.1982). Determination of a potential juror’s qualifications remains within the broad discretion of the trial court after consideration of relevant voir dire in its entirety. State v. Lingar, 726 S.W.2d 728, 733 (Mo. banc 1987), cert. denied, 484 U.'S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987); Johnson, 722 S.W.2d at 65. The trial court’s duty to make an independent inquiry arises only when a venireman equivocates about his ability to be fair and impartial. Hendrix, 646 S.W.2d at 832. Mindful of the trial court’s unique opportunity to observe the venireman during voir dire, an appellate court will not disturb a ruling on a challenge for cause unless it constitutes a clear abuse of discretion and a real probability of injury to the complaining party. State v. Hill, 714 S.W.2d 687, 689 (Mo.App.1986); see also Lingar, 726 S.W.2d at 733.

The record of venireman Kaver’s responses to questioning demonstrates no equivocation. He stated that he would have no problems deciding the case or in following the court’s instructions and he could act as a juror with fairness and impartiality. The responses created no need for the court to initiate independent inquiry, as defendant suggests. Moreover, the unusual situation here presents no real probability of any prejudice to defendant. If Kaver were disposed to have any hesitancy about the result in the case, notwithstanding his declarations otherwise, his inclination based on self interest would have been to acquit and thereby avoid facing appellant in a state institution. As the trial court did not err in overruling the challenge to venireman Kaver, the point is denied.

Affirmed.

WELLIVER, ROBERTSON, HIGGINS, BILLINGS, JJ., and DOWD, Special Judge, concur. BLACKMAR, C.J., dissents in separate opinion filed. COVINGTON, J., not sitting.

1 . E.g., State v. Turner, 623 S.W.2d 4, 11 n. 9 (Mo. banc 1981); State v. Lumsden, 589 S.W.2d 226, 231 (Mo. banc 1979); State v. Phillips, 460 S.W.2d 567, 569 (Mo.1970).