Wadlow v. State

518 S.W.3d 872, 2017 WL 1885291, 2017 Mo. App. LEXIS 402
CourtMissouri Court of Appeals
DecidedMay 9, 2017
DocketNo. SD 34452
StatusPublished
Cited by2 cases

This text of 518 S.W.3d 872 (Wadlow 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
Wadlow v. State, 518 S.W.3d 872, 2017 WL 1885291, 2017 Mo. App. LEXIS 402 (Mo. Ct. App. 2017).

Opinion

DON E. BURRELL, J.

In 2011, a jury found Daniel Boone Wadlow (“Movant”) guilty of statutory sodomy in the first degree, and the trial court imposed a life-sentence. See section 566.062.1 We affirmed Defendant’s judgment of conviction and sentence on direct appeal in State v. Wadlow, 370 S.W.3d 315, 323 (Mo. App. S.D. 2012).

Movant now appeals the subsequent denial, after an evidentiary hearing, of his amended Rule 29.15 post-conviction motion to vacate his conviction and sentence (“the amended motion”)—a decision we review to determine whether the findings of fact and conclusions of law supporting the decision are clearly erroneous. Rule 29.15(k); Moore v. State, 328 S.W.3d 700, 702 (Mo. banc 2010).

Movant’s two points claim, respectively, that the motion court clearly erred because Movant proved his lawyer (“trial counsel”) was ineffective in: (1) failing “to move to strike venireperson [number 7 (“Juror 3”) ]” after Juror 3 disclosed “that she could not be fair due to having a young granddaughter herself’; and (2) failing to object to questions the State asked a trial witness about “violence toward [Movant’s] son, and statements [the witness] allegedly made to police about abuse between [Movant] and [his ex-wife.]”

[874]*874Finding merit in Movant’s first point, we must reverse the motion court’s denial of post-conviction relief and vacate Movant’s underlying judgment of conviction and sentence.2

Relevant Facts

During voir dire, the prosecutor informed the venire panel that “[t]he victim in this case—was at the time, back in February of 2009, a five year old girl[.]” He then engaged in the following exchange:

Q. Let me ask, due to the nature of this case is there anyone who feels that they would not be able to be fair and impartial simply due to the nature of the charges of this case? Please raise your hand.
[[Image here]]
Q. Thank you. Can you raise your hands again if there was anybody that felt they might not be able to be fair or impartial in this case? [Juror 3]?
[Juror 3]: Yes. I have a granddaughter that’s four years old and I just truly don’t think that I could do it, to be honest, to be fair about it.
Q. Would you be able to listen to the evidence and make a decision just based on that evidence?
[Juror 3]: No.
Q. Thank you. [The prosecutor then questioned other members of the panel.3 ]

During his portion of voir dire, trial counsel named various venirepersons, including Juror 3, who had responded to questions asked by the prosecutor. Trial counsel did not ask Juror 3 any questions. Trial counsel also asked the panel if anyone “would find it difficult to find in favor of an older person as opposed to a young child if the evidence so dictated” or “find it impossible to adhere to the law as the Judge reads it to you and meet the standard of beyond a reasonable doubt before you would return a verdict of guilty?” The record does not indicate that Juror 3 responded to either of these questions. Trial counsel did not ask the trial court to strike Juror 3 for cause, and he did not use one of his peremptory strikes to exclude her from the jury.4

The amended motion asserted, inter alia, that trial counsel’s failure to challenge Juror 3 for cause denied Movant his right to effective assistance of counsel.5 At [875]*875the evidentiary hearing on the amended motion, post-conviction counsel asked trial counsel whether there was “any strategy that you recall in not striking [Juror 3]?” Trial counsel replied, “No I can’t recall that at this time.” Trial counsel testified that there “certainly could be” reasons to consider Juror 3 “a good potential juror for the defense[,]” but he did not identify any such reasons. Trial counsel recalled that Movant was with him “during the entire voir dire process[,]” and trial counsel did not recall Movant “expressing an objection to [him] regarding [Juror 3.]”

Movant also testified at the evidentiary hearing. He recalled that he “once ... asked [trial counsel] why he didn’t object on [Juror 3] .... and [trial counsel] just acted like he didn’t hear me.”

The motion court found Movant had “admitted during the Rule 29.15 evidentiary hearing that he was aware of [Juror 3] being on the jury despite her statements and was further aware that no objection was raised.” Based upon this finding, the motion court denied Movant’s claim that trial counsel was ineffective in failing to challenge Juror 3.6 This appeal timely followed.

Analysis

In support of Point 1, Movant argues that “[r]easonably competent counsel would have moved to strike [Juror 3], and the trial court would have been required to strike her.” Movant maintains he was prejudiced by trial counsel’s failure because Juror 3 “admitted that because of her granddaughter, she could not be fair. This case involved a preschool child—the very issue upon which [Juror 3] was biased.”

The State responds that Movant failed to show that trial “counsel did not have a strategic reason for not striking [Juror 3] for cause[,]” and in considering “the totality of [Juror 3’s] responses[,]” her impartiality was assured by her silence in response to questions asking if anyone would have difficulty in favoring an older person over a younger person or would find adhering to the law impossible.

It is certainly true that silence in response to pertinent follow-up questioning may unequivocally indicate that a juror who at first seemed biased was actually qualified to serve as a fair and impartial juror. See Edgar v. State, 145 S.W.3d 458, 463 (Mo. App. W.D. 2004). But we must evaluate the State’s argument in the context of the fundamental principle “that a criminal defendant is entitled to a jury composed of only those who are free from any bias or prejudice. The failure to challenge for cause a venireperson who admits to a prejudice against the defendant is ineffectiveness absent an acceptable explanation.” State v. McKee, 826 S.W.2d 26, 28-29 (Mo. App. W.D. 1992).

“To prevail on a claim of ineffective assistance of counsel during the jury selection process, the defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby.” Pierce, 927 S.W.2d at 377. The failure to provide a criminal defendant with a jury of 12 per[876]*876sons “totally free from any partiality” is a denial of the right to a trial by jury and satisfies the prejudice-prong of the Strickland test. McKee, 826 S.W.2d at 28. Therefore, “[w]hen it is shown that a venireman lacks impartiality, a challenge for cause must be sustained.” Presley v. State, 750 S.W.2d 602, 606 (Mo. App. S.D.

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Cite This Page — Counsel Stack

Bluebook (online)
518 S.W.3d 872, 2017 WL 1885291, 2017 Mo. App. LEXIS 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wadlow-v-state-moctapp-2017.