Mallett v. State

• Decision Date: 18 April 1989
• Docket Number: No. 70923,70923
• Citation: 769 S.W.2d 77
• Parties: Jerome MALLETT, Respondent/cross-appellant, v. STATE of Missouri, Appellant/cross-respondent.
• Court: Missouri Supreme Court

Page 77

769 S.W.2d 77

Jerome MALLETT, Respondent/cross-appellant, v. STATE of Missouri, Appellant/cross-respondent.

No. 70923.

Supreme Court of Missouri En Banc.

April 18, 1989.

Rehearing Denied May 16, 1989.

William L. Webster, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, for appellant/cross-respondent.

Donald L. Catlett, Public Defender, Jefferson City, for respondent/cross-appellant.

RENDLEN, Judge.

Movant was convicted of first degree murder for killing Missouri State Highway Patrolman James Froemsdorf and was sentenced to death in the Circuit Court of Schuyler County. His conviction and sentence were affirmed on direct appeal in State v. Mallett, 732 S.W.2d 527 (Mo. banc 1987), where the facts surrounding the crime are detailed. Movant subsequently instituted this Rule 27.26 proceeding, and, after two written amendments by movant's counsel, an evidentiary hearing was held before the Honorable Ronald M. Belt, who was assigned the case as Special Judge. Finding three of movant's claims meritorious, Judge Belt entered an order vacating movant's sentence and requiring that movant be "tried in a venue where there is a possibility of blacks being on the jury." The state appealed the vacation of the sentence and movant cross-appealed, contending the motion court erred in not granting relief on other grounds alleged in his motion. The Court of Appeals, Western District transferred the appeal prior to opinion in compliance with our policy concerning 27.26 proceedings where the underlying conviction resulted in imposition of the death penalty. We reverse.

The state asserts on appeal that the motion court erred in concluding movant's due process and equal protection rights were violated by the trial court's selection of Schuyler County as the venue for movant's trial and in holding that movant did not receive effective assistance of counsel because of counsel's failure to object to a mitigating circumstances instruction that contained an erroneously numbered reference to another instruction. In examining the contentions of error, we bear in mind that appellate review of the motion court's decision in a 27.26 proceeding is limited to a determination of whether its findings, conclusions and judgment are clearly erroneous. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

Initially we consider the questions raised concerning the trial court's transfer of venue to Schuyler County. Trooper Froemsdorf was murdered in Perry County, which is situated along the Mississippi River in Southeast Missouri, and movant was originally brought before the court in that county. Movant requested a change of venue, and after his counsel ¹ and the state were unable to reach agreement on venue, each party suggested certain counties of their own preference to Judge Murphy during argument on defendant's motion. The state mentioned Texas, Phelps, Clay, and Clinton Counties, while defense counsel named St. Louis City and the Counties of St. Louis, Jackson, and Boone, then added Buchanan and Adair. Movant's counsel expressed a concern that venue be moved to a community where there was a possibility of blacks appearing on the jury because movant is black. After the discussion Judge Murphy stated that he had in mind a county not included on either list and "very far and north of here." He subsequently entered an order transferring venue to Schuyler County, located along the Iowa border and containing, according to 1980 census statistics, 4964 white persons and three black persons. See U.S. Bureau of Census, Census of Population and Housing (1980). Judge Webber, who presided during the trial, testified at the 27.26 hearing he was not aware of any blacks living in Schuyler County at the time of movant's trial.

Movant asserted in his 27.26 motion that he was denied due process by the change of venue, and the motion court agreed, stating "an arbitrary choice of venue without giving the defense an opportunity to be heard; and the fact that the county chosen denies the movant of (sic) any opportunity of members of his own race being on the jury panel; and the fact that the case involves a black man killing a white trooper which has a high possibility for racial prejudice being a factor; violates the due process clause."

A fundamentally fair trial is the basic requirement of due process, and in most cases a showing of identifiable prejudice to the accused is necessary. Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543 (1965). It is also true that "at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process." Id.; see also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). However, in this case we believe the motion court clearly erred in concluding movant did not receive a fundamentally fair trial. The lack of potential black jurors and the issue of racial prejudice were discussed at length in our previous opinion on direct appeal of the conviction. In determining whether movant's death sentence was imposed under the influence of passion, prejudice, or the arbitrary factor of race, we stated that the voir dire examination provided "direct evidence that the jurors were not motivated by racism," and "[l]acking any other evidence, defendant urges that this Court assume racial bias because, while he is black and his victim was white, the county in which he was tried had no black residents, which resulted in a jury panel without blacks." Mallett, 732 S.W.2d at 539. We declined "to infer racial prejudice on the part of a jury which sentences a black killer of a white victim to death simply because that jury was drawn from a county which has no black residents[,]" and noted "[t]o hold that racial prejudice may be inferred from the absence of members of the defendant's race on the jury would be, in practical effect, to hold that the defendant has a right to members of his own race on the jury. A defendant, however, has no right to a jury of any particular racial composition. Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975); State v. Blair, 638 S.W.2d 739, 753 (Mo. banc 1982), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1030 (1983)." Id. at 540. We further rejected an argument that the trial of a black in a county with no black residents inherently results in a jury motivated by prejudice. Id. The fact that the murder victim was white and defendant was tried in a county without blacks is insufficient to establish identifiable prejudice to the defendant, and we do not find the change of venue procedure utilized here created such a high probability of prejudice that it was inherently lacking in due process; indeed, as previously discussed, all the evidence, including the transcript of voir dire, indicates defendant received a fair trial by an impartial jury.

The third factor mentioned by the motion court was the purported lack of opportunity for the movant to be heard. We note in this regard that movant was able to, and did, express his venue preferences as well as his concern that there be potential black jurors. We see little significance in the fact there was no further hearing after venue was decided. The procedure here followed that specified in Rule 32.03. The motion court clearly erred in finding that movant was denied due process because the venue was changed to Schuyler County.

We next address the state's contention that the motion court erred in concluding movant was denied equal protection by the change of venue. To establish an equal protection violation, a defendant must prove the existence of purposeful discrimination and that the purposeful discrimination had a discriminatory effect on him. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 1766, 95 L.Ed.2d 262 (1987). Assuming arguendo that a change of venue from a county with few blacks to one with none has a discriminatory effect on a defendant for purposes of equal protection analysis, we find a complete void of evidence that Judge Murphy's venue decision was animated by a discriminatory purpose. Movant has not shown that Judge Murphy treated him differently than white defendants or that Judge Murphy systematically used the change of venue procedures to ensure that black defendants would be tried by white juries. Nor is there evidence indicating Judge Murphy was aware of the racial composition of Schuyler County; however, if so, "discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979). See also McCleskey, 107 S.Ct. at 1769; Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 1532, 84 L.Ed.2d 547 (1985).

The motion court relied on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in concluding "this court need not find that Judge Murphy acted with a discriminatory purpose, [however,] this court finds that an inference of discriminatory purpose exists." (Emphasis in original.) Batson, of course, involved the use of peremptory strikes by prosecutors to exclude blacks from serving on juries, and the Supreme Court held there that a defendant may make a prima facia case of discrimination by establishing: 1) he is a member of a cognizable racial group and the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race; 2) the practice in question permits "those who are of a mind to discriminate to discriminate," and 3) these facts and other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the jury on account of...