Benson v. State

• Decision Date: 30 December 1980
• Docket Number: No. WD,WD
• Citation: 611 S.W.2d 538
• Parties: Robert E. BENSON, Movant-Appellant, v. STATE of Missouri, Respondent. 31465.
• Court: Missouri Court of Appeals

Page 538

611 S.W.2d 538

Robert E. BENSON, Movant-Appellant, v. STATE of Missouri, Respondent.

No. WD 31465.

Missouri Court of Appeals, Western District.

Dec. 30, 1980.

As Modified On Court's Own Motion.

Motion for Rehearing and/or Transfer Denied Feb. 2, 1981.

Application to Transfer Denied March 9, 1981.

George E. Kapke, Cochran, Kramer, Kapke & Willerth, Independence, for movant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Asst. Atty. Gen., Kansas City, for respondent.

Before WASSERSTROM, C. J., Presiding, and SHANGLER, PRITCHARD, DIXON, SWOFFORD, SOMERVILLE and MANFORD, JJ.

DIXON, Judge.

This appeal from the denial of post-conviction relief pursuant to Rule 27.26 is one of a series involving the application of the rulings in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979).

The precise issue raised is the application of Duren v. Missouri to cases tried between January 9, 1975, the date when Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), was decided, and September 27, 1977, the date when State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), was decided. The question is posed because of the decision in Lee v. Missouri which mandates application of the Duren v. Missouri, holding to all juries sworn after the Taylor v. Louisiana holding. This appeal and seven other such cases were heard by a special panel of seven judges. All the appeals were heard at the same time with argument limited to the Duren issues raised.

All the cases have as a common thread an attack upon the composition of Jackson County jury panels as being unconstitutionally faulty by reason of an underrepresentation Soon after the decision in Taylor v. Louisiana, supra, the public defender's office in Jackson County launched an attack upon the method of selection of juries in Jackson County. The attack was focused in State v. Lee, 556 S.W.2d 25 (Mo. banc 1977), and State v. Duren, 556 S.W.2d 11 (Mo. banc 1977). The evidentiary support for the attack in both of these cases hinged upon the effect which the questionnaire provided by § 497.130 RSMo 1969 had in eliminating females from the jury list. After the evidentiary support for the challenge was compiled for use in State v. Lee for the 1975 panel, the "packet" of such information was provided to all assistant public defenders in January, 1976.

of women. The underrepresentation of women occurred by reason of the manner in which the questionnaire process provided by § 497.130 RSMo 1969 operated to exclude females by inviting and almost directing their nonparticipation in the jury system. This questionnaire and its operation was confined to juries selected in Jackson County, and the factual background of Duren v. Missouri and Lee v. Missouri, supra, inextricably involves the application and effect of § 497.130 RSMo 1969.

State v. Duren and State v. Lee, supra, reached the Supreme Court of Missouri in 1977, and were both decided September 27, 1977. The claims of both defendants as to the underrepresentation of women on Jackson County juries were rejected by the Missouri Supreme Court. Ultimately, the Supreme Court of the United States, in Duren v. Missouri, supra, decided January 9, 1979, accepted the defendant's contention. Lee v. Missouri, supra, decided January 15, 1979, made the Duren ruling retroactive to the date of decision in Taylor v. Louisiana.

The result of these two decisions of the Supreme Court was to open the floodgates to a variety of claims for similar relief by prisoners who had been convicted by Jackson County juries after Taylor v. Louisiana.

Duren v. Missouri and Lee v. Missouri were direct appeal cases in which the error had been fully preserved. These cases and others in the same procedural posture were granted relief by memorandum order in compliance with the mandate of the Supreme Court of the United States. State v. Clark, 583 S.W.2d 300 (Mo.App.1979); State v. Hardy, 578 S.W.2d 361 (Mo.App.1979).

Varieties of procedural default began to emerge in the appeals of other cases. State v. Buford, 582 S.W.2d 298 (Mo.App.1979), rejected the State's attack upon the statistical proof offered to show a Duren violation, which asserted that the ultimate composition of the wheel was not proven. The rationale of Buford that a fact pattern, once established, continues in the absence of evidence to the contrary was relied upon in State v. Hawkins, 582 S.W.2d 333 (Mo.App.1979), and State v. Beavers, 591 S.W.2d 215 (Mo.App.1979) to find Duren violations where the factual data offered to support the motion were for a prior year's jury panel. Thus, the principle of Buford, that facts once shown are presumed to continue to exist when the system giving rise to the operative facts is shown not to have changed, was applied and broadened.

In a case where a motion to quash the jury panel was filed, but no ruling was made, relief was also granted, State v. Carter, 591 S.W.2d 219 (Mo.App.1979), this on the basis that the ruling in State v. Duren would have made insistence upon such a ruling futile. Finally, in State v. Williams, 595 S.W.2d 378 (Mo.App.1980), a case was reached where no attempt had been made to assert the error procedurally in the trial court, but the issue was raised in the appeal as plain error. Relief was granted under the plain error rule, and the circle was complete.

Only two exceptions were saved: first, the holding of State v. Mountjoy, 585 S.W.2d 98 (Mo.App.1979), that plain error would not be applied to such a claim where the trial occurred prior to the decision in State v. Duren, a holding which is here affirmed; and, likewise, the holding in State v. Williamson, 584 S.W.2d 628 (Mo.App.1979), that error raised for the first time on appeal would not be considered, absent a request for plain error review. Williams, supra, has been adopted and followed Our cases have thus pierced any procedural hiatus to give relief in Duren type claims for juries sworn between the decisional dates of State v. Duren and Duren v. Missouri. The ultimate rationale of these cases can only be found in concepts of fundamental fairness and an awareness on the part of this court as to the practicalities of trial practice. After State v. Duren and before Duren v. Missouri, it is obvious that some lawyers continued to assert Duren type claims, but in no case was the attack on the jury as intense and pointed as in Duren and Lee. Others, acceding to the ruling of the Supreme Court of Missouri in State v. Duren, made no attempt to preserve the issue. Only by cutting through the tangle of procedural problems, as State v. Williams, supra, succeeded in doing, can substantial justice and fundamental fairness be rendered to defendants tried by juries selected between the decisions in State v. Duren and Duren v. Missouri. Nor would it be fair to counsel to attempt to sort out claims upon the basis of diligence in the preservation of the claim of error in the light of State v. Duren which bound all of the courts of this state until the decision in Duren v. Missouri.

in State v. Johnson, 606 S.W.2d 624 (Mo. banc 1980), and in State v. Baker, 607 S.W.2d 153 (Mo. banc 1980), and must be considered as settled law.

However, the premises which existed and the rationale for the adoption of the rule set forth in State v. Williams and the preceding cases do not apply to cases, including the current one, tried between Taylor v. Louisiana and State v. Duren. Prior to State v. Duren, the application of Taylor v. Louisiana to the selection of juries under the Jackson County system of jury selection was an open question. That this is so is demonstrable from the opinion in State v. Duren. In Duren v. Missouri, the dissent of Justice Rehnquist indicates the issue was not so clear-cut as to be an open and obvious constitutional impairment of the jury selection process. Given the doubt surrounding the issue prior to the decision in State v. Duren, there is no reason to depart from settled principle when dealing with imperfectly preserved claims of error in cases tried before State v. Duren. Settled procedure requires that a constitutional attack be made at the first opportunity and preserved at each step of the judicial process. State v. Wickizer, 583 S.W.2d 519 (Mo. banc 1979). A challenge to the jury panel or venire must be made at the time the panel is sworn or as soon as the cause for challenge appears. State v. Sockel, 485 S.W.2d 393 (Mo.1972); State v. Robinson, 484 S.W.2d 186 (Mo.1972); Lee v. Missouri, supra.

In all cases on direct appeal prior to State v. Duren, the failure to timely object at trial will preclude consideration of a Taylor v. Louisiana type claim under the settled procedural rule that such objection must be timely made. The reasons for the application of plain error in direct review cases after State v. Duren do not apply to cases prior to that decision. No reason appears to excuse default of timely objection prior to the decision by the Missouri Supreme Court in State v. Duren. State v. Watts, 607 S.W.2d 787 (Mo.App.1980).

It is, likewise, settled law in Missouri that in our post-conviction relief practice under Rule 27.26, a procedural default bars review of even a constitutional claim in a 27.26 proceeding. Fields v. State, 468 S.W.2d 31 (Mo.1971). Fields relied upon the rationale of Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), that if a legitimate state interest was served by a procedural requirement, it barred federal habeas corpus review and that, therefore, it constituted an independent state ground for decision. Underlying this rationale is, of course, the notion that Missouri should afford state review of constitutional grounds if the failure to do so will require ultimate review by the federal courts. The question has not been posed directly in Missouri with respect to the requirement for a contemporaneous...