Greene v. State, WD

• Decision Date: 02 February 1981
• Docket Number: No. WD,WD
• Citation: 612 S.W.2d 430
• Parties: Michael GREENE, Appellant, v. STATE of Missouri, Respondent. 31426.
• Court: Missouri Court of Appeals

Page 430

612 S.W.2d 430

Michael GREENE, Appellant, v. STATE of Missouri, Respondent.

No. WD 31426.

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.

Clifford A. Cohen, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.

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

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

PRITCHARD, Judge.

On September 22, 1976, appellant was convicted of two charges of assault with intent to kill "with malice", and was sentenced, on October 8, 1976, to fifteen years imprisonment in the Division of Corrections on each charge, to run consecutively.

On July 26, 1979, appellant, pursuant to Rule 27.26, filed a motion to reduce or modify sentence. That motion was later amended (its filing date not being shown) to allege, as grounds to reduce or modify sentence, "(1) The verdict was unduly harsh in view of the evidence; (2) The verdict is unduly harsh in the light of the adjustment and progress defendant has made in the penitentiary; (3) The verdict remains unduly harsh in light to defendant's changed family situation which includes the birth of a child since he has been institutionalized; (4) Defendant was convicted of assault with intent to kill with malice in both cases, not malice aforethought, and consequently his sentence on each case cannot be more than five years. Hardnett v. State, 564 S.W.2d 852 (Mo.)." Items 1 through 3 in the motion were withdrawn during hearing, at the close of which the court overruled the amended motion's remaining ground (4).

On this appeal as Point I, ground (4) of the remaining grounds is presented, but in addition, for the first time raised, Point II presents as an issue that the jury was not selected from a fair cross section of the community, in that women were systematically excluded from jury service by reason of permitting them an automatic exemption. Again for the first time raised, Point III asserts that the hearing court erred in concluding that his (constitutional) right to effective assistance of counsel in perfecting his appeal was not violated, because evidence advocating this ground for relief could not have been presented to the hearing court in that appellant's trial counsel was his 27.26 hearing counsel.

As to the Point II issue, that the jury was not selected from a fair cross section of the community, in that women were systematically excluded from jury service, there was no issue presented to the trial court in the Rule 27.26 motion, and there was no evidence produced at any time during the trial or in this Rule 27.26 proceedings. Appellant makes no claim that the matter should be considered as plain error, but even if he had, it would not avail him any relief. It was said in State v. Mountjoy, 585 S.W.2d 98, 102(6) (Mo.App.1979), where the issue was not presented to the trial court in a timely motion to quash the panel, "The trial court was not obliged to act sua sponte to strike the jury panel and failure to raise the question then precludes the relief now sought." See also State v. Williamson, 584 S.W.2d 628, 630(5) (Mo.App.1979), where defendant raised in his brief, for the first time as here, error in selecting the jury panel, and it was held that Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), did not aid defendant where no timely motion to quash the jury panel was filed. See also Benson v. State, 611 S.W.2d 538 (Mo.App.1980) (No. WD 31465), holding, "Under the settled principle of waiver by failure to make proper and timely objection, no Taylor v. Louisiana (419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)) claim can be made to a Missouri jury seated prior to State v. Duren (556 S.W.2d 11 (Mo. banc 1977)), 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 instant case, without more, would be decided by the foregoing." The foregoing cases rule the issue of Point II, and it is overruled.

The same treatment must be accorded appellant's Point III because nothing was presented to the trial court in the Rule 27.26 motion concerning ineffective assistance of counsel in any respect. Atkins v. State, 549 S.W.2d 927, 931 (Mo.App.1977); Baker v. State, 583 S.W.2d 190, 191 (Mo.App.1979); and see Fritz v. State, 449 S.W.2d 174, 177 (Mo.1970).

As to the first point, ground (4) of the motion, the facts are these: The indictments in each case charged that appellant, on purpose and of his malice aforethought, shot the victims with a...