Bannister v. State

• Citation: 726 S.W.2d 821
• Decision Date: 03 March 1987
• Docket Number: No. 14640,14640
• Parties: Alan Jeffrey BANNISTER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 821

726 S.W.2d 821

Alan Jeffrey BANNISTER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

No. 14640.

Missouri Court of Appeals,

Southern District,

Division Two.

March 3, 1987.

Motion for Rehearing or Transfer

Denied March 19, 1987.

Application to Transfer Denied April 14, 1987.

Robert Wolfrum, Asst. Public Defender, St. Charles, for movant-appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent-respondent.

HOGAN, Judge.

Defendant Alan Jeffrey Bannister was hired to assassinate one Darrell Ruestman. On August 21, 1982, he did so. Subsequently a jury convicted Bannister (hereinafter defendant) of capital murder as defined and denounced by § 565.001, RSMo 1978 (now repealed). The jury recommended that defendant be punished by death. Section 565.008, RSMo 1978 (repealed 1983). Judgment was rendered accordingly. On appeal, our Supreme Court affirmed the judgment and sentence. State v. Bannister, 680 S.W.2d 141 (Mo. banc 1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985). The defendant thereafter sought post-conviction relief under our Rule 27.26. The trial court denied relief and the defendant now appeals. Notwithstanding the fact that a death sentence was imposed, we have jurisdiction of the cause. Mercer v. State, 666 S.W.2d 942, 944[1-3] (Mo.App.1984).

The defendant has briefed and argued six assignments of error in this court. The general tenor of his brief is that he did not have the effective assistance of counsel. So, with one exception--which shall be noted--our primary inquiry is whether inspection of the entire record demonstrates: 1) that trial counsel failed to exercise that degree of skill, care and diligence to be expected of a reasonably competent attorney under similar circumstances, and 2) that defendant was prejudiced by trial counsel's performance. Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984), rehearing denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979); Simons v. State, 719 S.W.2d 479, 480 (Mo.App.1986). To establish the required prejudice, the record must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. at 2067-68. With these principles in mind, we consider the defendant's assignments of error as we understand them.

I

A

Defendant's first point is directed to an incident which occurred during the trial following comment by the prosecutor to the jury panel concerning the availability of the death penalty. Venireman R.E. Morris volunteered the following remarks:

"VENIREMAN MORRIS: Could I stop and ask a question there? [The fact that the death penalty might be imposed] might sway my opinion on how I would vote if you were to find him guilty, and you didn't put him to death. What I'm saying is I don't want him put in a jail cell at my expense."

Our Supreme Court noted that Morris' statement was volunteered; it was not made in response to any questions propounded on voir dire, and neither party called upon Morris to explain his unsolicited remark. The court further noted that the defense exercised a peremptory challenge to remove Morris from the panel, and also observed that review of the trial court's failure to sustain defendant's challenge for cause was limited by counsel's failure to preserve the issue in his motion for new trial. The court found no such manifest injustice or miscarriage of justice requiring reversal under Rule 30.20. State v. Bannister, 680 S.W.2d at 145. In a thoughtful concurring opinion, Judge Blackmar expressed the view that venireman Morris' unsolicited remarks gave "no reasonable expectation of sober and reflective views about the punishment" to be imposed.

Seizing upon Morris' outburst, counsel has framed a point so verbose and so diffuse as to be difficult to follow. The point is cited marginally. ^* We conclude that the first point raises two questions essential and necessary to a resolution of this appeal: 1) Were the trial court's findings of fact and conclusions of law insufficient in form and clearly erroneous in substance? 2) If the whole record is considered, should the trial court have sustained trial counsel's challenge for cause when he objected to Morris' voluntary remark?

B

The contention that the court's findings of fact and conclusions of law were insufficient in form and clearly erroneous in content need not detain us long. Rule 27.26(i) requires the trial court to make findings of fact and conclusions of law on all issues presented in a post-conviction proceeding, but that requirement is satisfied if the findings and conclusions sufficiently cover all points raised by the petitioner so as to permit meaningful appellate review. Laws v. State, 708 S.W.2d 182, 185 (Mo.App.1986). The findings of fact and conclusions of law made in connection with the trial court's refusal to strike Morris for cause are amply sufficient to permit this court to understand the trial judge's reasoning. Further, it is to be borne in mind that in proceedings under Rule 27.26, even if the trial court's basis for denying relief is incorrect, we must affirm the judgment if it is sustainable on other grounds. State v. Kimes, 415 S.W.2d 814, 815 (Mo.1967); Mercer v. State, 666 S.W.2d at 947[9-11]; Jones v. State, 604 S.W.2d 607, 609 (Mo.App.1980). In light of these rules, defendant's argument concerning the findings of fact and conclusions of law is without merit.

C

As just noted, the substance of defendant's first point, stripped of its rhetorical froth, is that counsel was ineffective at the trial because he did not pursue his challenge for cause and because he did not assign the refusal of his challenge for cause in the motion for new trial. This assignment requires examination of the whole record to determine whether, in light of that record, Morris was constitutionally disqualified as a venireman in a capital case.

As the trial record shows, counsel did move to strike Morris from the panel. When the court inquired if there were challenges for cause, trial counsel responded:

"MR. GORDON: Mr. R.E. Morris, your Honor, he indicated that a dislike, I think, for people being put in jail at the taxpayer's expense, and I think that would make him biased and in favor of the death penalty without respect to whether or not there are any other extenuating circumstances.

THE COURT: That will be refused."

The assertion that trial counsel was ineffective for failing to pursue the trial court's ruling presupposes there was error in refusing the challenge for cause. The question is analogous to that posed in Mangan v. State, 665 S.W.2d 85, 86[2-4] (Mo.App.1984) (trial counsel not ineffective for failure to request an instruction which the court was not required to give) and Preston v. State, 627 S.W.2d 892, 894 (Mo.App.1982) (failure to make an invalid objection does not constitute ineffective assistance of counsel). If there was no trial error, counsel cannot have been ineffective for failure to pursue it. We are well aware that we cannot second-guess our Supreme Court, but we are not called upon to do so. That court obviously did not examine the effect of the alleged error except in the context of plain error. ¹

One of the leading cases dealing with the qualifications of veniremen or jurors in a capital case at the time this case was tried is Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), rehearing denied, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968). In Witherspoon, the court held, inter alia, that a potential juror should be excluded if his attitude toward the death penalty would prevent him from making an impartial decision as to defendant's guilt. Id. 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, n. 21 (emphasis in original). The holding in Witherspoon, however, was clarified by the Eleventh Circuit in Hance v. Zant, 696 F.2d 940, 956[39, 40] (1983), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983). There the court held that veniremen who express a preference for the death penalty should not be excluded for cause unless they indicate a bias for capital punishment which is unequivocal and absolute. Despite Morris' undoubtedly coarse and insensitive outburst he was not among the jurors who responded in the negative when the panel was asked as a group if they could follow the instructions of the court and accord the defendant a fair and impartial trial. He positively stated that he believed a man was innocent until proved guilty. Group questioning and nonverbal responses may be considered in determining a venireman's qualification as a potential juror in a death case, McCorquodale v. Balkcom, 721 F.2d 1493, 1495-97 (11th Cir.1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1984), and a trial court has some discretion in determining a venireman's qualifications. State v. Olinghouse, 605 S.W.2d 58, 69 (Mo. banc 1980).

Upon examination of the whole record, we conclude Morris was not disqualified by any unequivocal and absolute bias in favor of capital punishment. There was no error in denying the challenge for cause; therefore counsel was not ineffective in failing to pursue the trial court's denial of that challenge for cause.

II

In his second point, the defendant asserts he was denied effective assistance of counsel because his trial attorney failed to object to the trial court's answering questions put by the jury during their deliberation at the penalty phase of the trial. The questions and the court's answers were as follows:

"THE COURT: The jury has a question. I've asked that they be brought back in to ask their question. I understand you have a...