Ham v. State

• Decision Date: 05 October 1999
• Citation: 7 S.W.3d 433
• Parties: (Mo.App. W.D. 1999) Paul Wayne Ham, II, Appellant, v. State of Missouri, Respondent. WD56227
• Court: Missouri Court of Appeals

7 S.W.3d 433 (Mo.App. W.D. 1999)

Paul Wayne Ham, II, Appellant, v. State of Missouri, Respondent.

WD56227

Missouri Court of Appeals Western District

10/05/99

Appeal From: Circuit Court of Andrew County, Hon. Weldon Clare Judah

Counsel for Appellant: Rosemary Ellen Percival

Counsel for Respondent: Attorney General's Office

Opinion Summary: After his convictions for first degree murder and armed criminal action, Defendant-AppellantPaul Ham moved for post-conviction relief under Rule 29.15 and was denied.He appeals that denial on two grounds.First, Ham claims he was denied effective assistance of counsel at trial when his trial counsel failed to use a peremptory strike against a venireperson after the judge refused to strike her for cause.Second, Ham claims that his appellate counsel was ineffective on his direct appeal because she failed to brief the issue that the trial court erred in refusing to strike the venireperson for cause.

Division Two holds: (1) Ham's trial counsel was not ineffective for failing to peremptorily strike the vernireperson.The trial court's denial of defense counsel's motion to strike for cause, assuming it was correct, means the juror was qualified.Even if it would have been better strategy to strike the juror, the Court fails to see how Ham could have been prejudiced because one qualified juror sat rather than another.He was entitled only to 12 fair and impartial jurors, not to the 12 jurors who, in hindsight, he believes would have been most favorable to the defense.

(2)Defendant's appellate counsel was not ineffective for failing, on direct appeal, to raise the issue whether the trial court erred in refusing to strike the juror for cause.Assuming that counsel should have raised that issue on appeal, Ham is not entitled to post-conviction relief unless he was prejudiced by the failure to do so, in that, had the issue been raised, his conviction would have been reversed and his case remanded for a new trial.Although it would have been better practice to grant the motion to strike where, as here, the issue of the venireperson's qualifications was a close one, the record does not show that the trial court abused its discretion in finding the juror could be fair and impartial.Ham has not been prejudiced by the failure to raise this issue on appeal.

Lowenstein, P.J. and Hanna, J., concur.

Laura Denvir Stith, Judge

AppellantPaul Ham appeals denial of his Rule 29.15motion for post-conviction relief from his convictions for first degree murder and armed criminal action.He seeks relief on two grounds.First, Mr. Ham claims he was denied effective assistance of counsel at trial when his trial counsel failed to use a peremptory strike against venireperson Olyve Huffman after the judge refused to strike her for cause.Second, Mr. Ham claims that his appellate counsel was ineffective on his direct appeal because she failed to brief the issue whether the trial court erred in refusing to strike Ms. Huffman for cause.

We find no merit in either contention.If the trial court did not err in denying the strike of Ms. Huffman for cause, she was qualified to sit as a juror, and no prejudice could have resulted from her service on the jury.This is true even if it would have been better strategy to exercise a peremptory strike against Ms. Huffman; the failure to do so could not have prejudiced Mr. Ham for he was entitled only to 12 fair and impartial jurors, not to the 12 jurors who, in hindsight, he believes would have been most favorable to the defense.To the extent that Mr. Ham uses this argument to reargue the alleged error in failing to strike Ms. Huffman for cause at trial, he is improperly attempting to raise trial error in a post-conviction motion.

Mr. Ham is permitted to raise Ms. Huffman's alleged bias in this post-conviction proceed-ing in support of his second point, that appellate counsel was ineffective in failing to appeal the trial court's denial of his strike of Ms. Huffman for cause.Even assuming that counsel should have raised that issue on appeal, Mr. Ham is not entitled to post-conviction relief unless we find that he was prejudiced by the failure to do so because, had it been raised, his conviction would have been reversed and his case remanded for a new trial.For the reasons discussed below, we find that the decision of the trial court not to strike Ms. Huffman for cause was not an abuse of discretion, although it would have been better practice to have granted the motion.Accordingly, the failure to raise this issue on direct appeal did not effect the outcome of the appeal, and the trial court properly denied his motion for post-conviction relief.Affirmed.

I.FACTUAL AND PROCEDURAL BACKGROUND

Mr. Ham was sentenced by Judge Weldon C. Judah to consecutive terms of life imprisonment without the possibility of parole on his conviction of first degree murder, and 50 years on his conviction of armed criminal action.The facts giving rise to his convictions, con-sid-ered in the light most favorable to the verdict, are as follows:

On September 14, 1995, Mr. Ham attended a party at Robin Lovelady's house.Also attending the party were Brandon Juarez and the victim, Ronnie Munsterman.Mr. Juarez was unhappy with the attention that Mr. Munsterman paid to Ms. Lovelady at the party.He and Mr. Ham nonetheless left the party with Mr. Musterman, and they all went to a store.While at the store, Mr. Ham and Mr. Juarez decided to beat up Mr. Munsterman, and drove him to a rock quarry for that purpose.

According to Mr. Ham's initial statement to police, he initially hit the victim with a bottle and punched him, but, ultimately, both he and Mr. Juarez decided to "go for it."Mr. Ham then took a knife out of a sheath on his hip, stabbed the victim four times in the back, and then gave the knife to Mr. Juarez, who also stabbed the victim and then returned the knife to him.Again according to Mr. Ham's initial statement to police, he then took the knife back from Mr. Juarez and slit the victim's throat and slashed him in the groin area to be sure he would bleed to death.

Mr. Juarez confirmed in his trial testimony that this is what occurred.In his own trial testimony, however, Mr. Ham claimed that he was unaware that he had started to stab the victim until he suddenly found the knife in his hand and realized to his surprise that he had stabbed him in the back.He said that, when he saw what he had done, he gave the knife to Mr. Juarez, and was shocked that Mr. Juarez continued to stab the victim.At this point, Mr. Ham testified, he was not sure about what he should be doing, and that is why he took the knife back from Mr. Juarez.Yet, in contrast to the statement he made to the police, he indicated at trial that neither he nor Mr. Juarez injured the victim's neck or groin with the knife.Rather he testified at trial that, after he retrieved the knife from Mr. Juarez, he pulled the victim's body into a ditch to hide it.He thus admitted the killing, but denied he intended in advance to kill the victim.

The body was not found in the ditch until mid-November.By that point, according to the testimony of the medical examiner, Dr. Thomas Young, the body had decomposed to the point where much of the tissue had disappeared, so that only the stab wounds to the back and sleeve area, and a broken jaw, could be supported by the physical evidence obtained during the autopsy of the victim; the physical evidence could not be used to determine who had made what wounds on the victim.Trial began on October 21, 1996.Mr. Ham was represented by Mr. Stuart Kahn.Mr. Kahn extensively voir dired the panel as to whether they would be able to be fair and impartial in light of evidence which would be presented about Mr. Ham's intent to beat the victim, about the use of a knife, about the fact that Mr. Ham and Mr. Juarez had been drinking, and about prior convictions.Arguably, some of these questions asked the jurors to commit themselves on certain points.Along with many other members of the venire, and as discussed in detail below, Ms. Huffman indicated that she had some concerns about the effect of these issues on her ability to be impartial.The prosecutor later asked her and the other venirepersons who had these concerns further questions in an attempt to rehabilitate them, and defense counsel then had the opportunity to again question them on these issues.The court then held a conference out of the hearing of the jury at which it considered challenges for cause and peremptory strikes.

An associate of defense counsel took notes during voir dire.At the conference following voir dire questioning, counsel used these notes and his own recollection in determining which jurors to challenge for cause.He moved to strike 21 jurors for cause.In many cases, after he would announce that he wished to strike a particular person for cause, the prosecutor would indicate that he opposed the strike and why.Defense counsel or his associate would then use their notes to elaborate on their challenge or to counter the accuracy of the reasons the prosecutor said the strikes should be denied.The trial court granted 14 of defense counsel's 21 strikes for cause; 11 of these he granted immediately, and 3 after taking the strike under advisement.Seven of his requested strikes for cause, including his motion to strike Ms. Huffman, were denied.

When defense counsel moved to strike Ms. Huffman for cause, he stated:

No. 9, Judge, Ms. Huffman.First, with respect to convictions.That would affect her ability to be fair and impartial and she'd use that for purposes other than determining Mr. Ham's believability and credibility.Also, she had a real problem with [defendant's use of] alcohol.It would affect her.And also with respect to stabbing.Stabbing in this case would also affect her ability to be fair and impartial.

The prosecutor disagreed with this assessment of Ms. Huffman's responses,...