Charles v. State, WD

• Decision Date: 02 February 1981
• Docket Number: No. WD,WD
• Citation: 612 S.W.2d 409
• Parties: Bruce CHARLES, Appellant, v. STATE of Missouri, Respondent. 31272.
• Court: Missouri Court of Appeals

Page 409

612 S.W.2d 409

Bruce CHARLES, Appellant, v. STATE of Missouri, Respondent.

No. WD 31272.

Missouri Court of Appeals, Western District.

Feb. 2, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 2, 1981.

Application to Transfer Denied April 6, 1981.

Joseph R. Borich, Kansas City, for appellant.

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

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

SHANGLER, Judge.

The appeal comes from a judgment adverse to a Rule 27.26 motion to set aside a conviction and sentence for robbery.

The assertions for postconviction relief recite incidences of incompetency of trial counsel. Our review of that trial performance, however, is hampered by a brief on appeal which neglects the rudiments of Rule 84.04. The statement of facts is tendentious rather than fair: it recites the effect of the witnesses for the defense, regardless of adjudicated findings of fact by the trial court and evidence by the prosecution to contrary effect. The references to the transcript bear no faithful verisimilitude to the contents for which the movant cites them. We undertake to make full review nevertheless to finally adjudicate the contentions which have lingered over two postconviction proceedings. (See, Charles v. State, 573 S.W.2d 139 (Mo.App.1978)).

The defendant contends a spate of errors. One of them asserts that counsel was ineffective for failure to challenge in the wake of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) the system for jury selection in Jackson County at the trial for robbery. Another of them asserts that the postconviction court erred for failure to set aside the robbery judgment entered after Taylor v. Louisiana. The defendant was tried and convicted after Taylor v. Louisiana (1975) but before Missouri v. Duren, 556 S.W.2d 11 (Mo.banc 1977) and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Taylor decided that systematic exclusion of women during the jury selection process which resulted in venires not reasonably representative of the community denied a criminal defendant right under the Sixth and Fourteenth Amendments. Duren (U.S.) decided that based upon statistical proof the jury selection process in Jackson County systematically excluded women in violation of the Taylor constitutional principle and reversed Duren (Mo.) which had held that the statistical evidence for proof of that proposition was not met.

The public defender trial attorney for the defendant testified at the postconviction proceeding that he was aware of the Taylor implications but believed nevertheless that the evidence was not at hand to prove a motion to quash a jury panel in a Jackson County criminal trial and so did not assert one. That same office shortly thereafter amassed the extensive evidence the Duren (U.S.) court eventually found sufficient to prove the systematic exclusion of women from the Jackson County criminal jury venires. We comment only to interstice the full narrative (given in Benson v. State, 611 S.W.2d 538 (Mo.App.1981), of the massive transprofessional effort entailed to prove the Jackson County jury selection process unconstitutional on the principles of Taylor.

Benson determines that failure of a trial counsel in the absence of an already adjudicated statistical proof of a local systematic exclusion of women from criminal jury venires to anticipate the incipient Taylor principle, would invalidate the Jackson County jury selection process does not amount to ineffective trial advocacy. Benson determines also, on settled trial and appellate procedures, that:

(u)nder the settled principle of waiver by failure to make proper and timely objection, no Taylor v. Louisiana claim can be made to a Missouri jury seated prior to State v. Duren, absent a proper and timely objection. Whether the claim is asserted on direct appeal, or in a subsequent Rule 27.26 proceeding, the failure to make a timely and proper objection bars review.

The two contentions of ineffective assistance of trial counsel for want of motion to quash the jury venire on the authority of Taylor and constitutional error by the Rule 27.26 court for failure to set aside the conviction on that same authority fall within the exact rationale of Benson and are denied.

The defendant impugns the adverse determinations of several other grounds of the postconviction motion on the assertion that the court misconstrued the evidence. To sustain contention, the defendant relapses to a view of the evidence which accords conclusive truth to the testimony of the defendant and no effect to the testimony of the trial counsel in this case an actual witness for the defendant. That bias precluded the fair statement of facts required by Rule 84.04(c) and now hampers appellate decision. The trial court entered thoughtful and fastidious findings of fact and conclusions of law as prelude to judgment on the Rule 27.26 motion. They were...