McGrath v. State, 47472

Decision Date22 May 1984
Docket NumberNo. 47472,47472
Citation671 S.W.2d 420
PartiesPeter McGRATH, Movant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Jess L. Mueller, Troy, for movant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

REINHARD, Judge.

Movant was convicted of second degree murder in the October 2, 1977 stabbing death of Robert Dennis and sentenced to life imprisonment. On appeal, the Missouri Supreme Court affirmed the conviction in State v. McGrath, 603 S.W.2d 518 (Mo.1980).

Movant filed an amended motion to vacate his sentence under Rule 27.26. In his motion, movant asserted two principal contentions entitling him to relief. First, that his right to a fair and impartial jury was unconstitutionally tainted because the sheriff's deputy, whose office was primarily responsible for the investigation of the murder, personally selected additional bystanders to fill the jury panel. Second, he received ineffective assistance of counsel because his trial attorney failed to object to the jury selection process and failed to file a change of venue as requested by movant.

An evidentiary hearing was held. The record establishes that movant's murder trial commenced on March 19, 1979. The sheriff's department was responsible for investigating the crime. During voir dire, the trial judge sustained numerous defense challenges for cause. A sufficient number of people were stricken so that the panel was reduced to less than the statutory requirement. In accordance with Section 494.060, RSMo. 1978 1, the trial judge ordered the bailiff, Ken Whiteside, a deputy sheriff, to procure additional jurors. Whiteside left the courthouse and walked to a restaurant approximately 200 yards from the courthouse. He approached a table of nine customers in the restaurant and ordered five of the people to report to the courthouse as jurors. He made no effort to single out any particular type of person. He asked only if the people chosen were registered voters, all apparently were. He gave no information concerning the type of trial or names of the parties involved. Most of the prospective jurors apparently protested concerning the inconvenience of this impromptu selection, but none were excused by the bailiff. Whiteside's selection of jurors was done in accordance with standing court instructions that bystander jurors were to be picked by bringing back the first bystanders encountered after the bailiff left the courthouse.

A separate and extensive voir dire was held for the bystander jurors. A complete jury panel was selected. The foreman of the jury was one of the bystander jurors. Movant's attorney made no objection at trial to the jury selection process. Movant's attorney testified at the 27.26 hearing that he did not object because:

I thought we were getting a pretty good voir dire that day.... I thought that the Court at that particular time was giving us a pretty good response in our challenges for cause and taking off anybody that showed any type of particular bias or prejudice.... [I]n my opinion I thought the voir dire went well. The judge gave ... the defendant ... a wide latitude in voir dire and as I said we'd been successful in striking a number of people for cause....

The trial court filed findings of fact and conclusions of law. The court found movant was not prejudiced by the jury selection process; that his attorney did not object to the process because he believed he had a favorable jury panel and this was a matter of trial strategy. The court found that movant did not request a change of venue until the day of trial. Our review is limited to a determination of whether the findings, conclusions and judgment are clearly erroneous. Rule 27.26(j).

On appeal, movant first contends that the jury selection process was unconstitutional. We find no merit to this contention for several reasons. First, a challenge to improper jury selection may not be raised in a 27.26 proceeding unless there was a timely objection before the jury was sworn. Ross v. State, 601 S.W.2d 672, 675 (Mo.App.1980); See Merritt v. State, 635 S.W.2d 27, 28 (Mo.App.1982); Benson v. State, 611 S.W.2d 538, 541 (Mo.App.1980). There was no objection at trial and it is too late now when raised for the first time in this 27.26 motion. Second, it is well recognized in both state and federal courts that where there is a deliberate bypass whether for strategic, tactical or other reasons of orderly state procedure, a movant is precluded from raising a constitutional issue in a post conviction motion. McCrary v. State, 529 S.W.2d 467, 472 (Mo.App.1975); See Brookins v. State, 575 S.W.2d 841-42 (Mo.1978). Here, the defense attorney had been given wide latitude in voir dire, prior to the summoning of the bystander jurors. Assessment of the jury panel was a matter of trial strategy and therefore, the attorney's decision to accept the panel without objection constituted a deliberate bypass of any challenge to the jury composition and waived movant's rights to raise the claim in a post conviction hearing.

We further note that the Missouri Supreme Court has recently considered the selection process at issue and held that absent a specific showing of prejudice, the process is constitutional. Further, the one alleging such prejudice has the burden of proof. State v. Alexander, 620 S.W.2d 380, 384 (Mo. banc 1981); State v. Anderson, 620 S.W.2d 378, 380 (Mo.1981). Movant made bare allegations but failed to establish that he was prejudiced by the jury selection process.

Movant relies upon several 8th Circuit cases dealing with the selection of bystander jurors; Holt v. Wyrick, 649 F.2d 543 (8th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982); Henson v. Wyrick, 634 F.2d 1080 (8th Cir.1980), cert. denied, 450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 383 (1982); Thompson v. White, 661 F.2d 103 (8th Cir.1981) vacated and remanded, 456 U.S. 941, 102 S.Ct. 2003, 72 L.Ed.2d 463, on remand, 680 F.2d...

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6 cases
  • Presley v. State
    • United States
    • Missouri Court of Appeals
    • April 15, 1988
    ...matter by not raising it on direct appeal, and cites such cases as Smith v. State, 684 S.W.2d 520 (Mo.App.1984), and McGrath v. State, 671 S.W.2d 420 (Mo.App.1984). In Smith the claim of ineffective assistance of counsel was based on counsel's failure to move to quash the jury panel on grou......
  • State v. Garrette
    • United States
    • Missouri Court of Appeals
    • August 27, 1985
    ...with the Sheriff or any deputy. These facts compare favorably with State v. Sloan, 666 S.W.2d 787 (Mo.App.1984), and McGrath v. State, 671 S.W.2d 420 (Mo.App.1984), two cases decided since Henson, Thompson and In Sloan, the offense occurred in one county but the trial was held in another on......
  • State v. Gilmore
    • United States
    • Missouri Supreme Court
    • December 18, 1984
    ...a result of the trial court's refusal to permit the inquiry. State v. Alexander, 620 S.W.2d 380, 384 (Mo. banc 1981); McGrath v. State, 671 S.W.2d 420, 422 (Mo.App.1984). Defendant fails to demonstrate prejudice here. Defendant's final attack on the jury selection process is twofold. He con......
  • Haslip v. State, 14428
    • United States
    • Missouri Court of Appeals
    • September 11, 1986
    ...of improper jury selection or ineffective assistance of counsel in failing to object to the jury selection process. McGrath v. State, 671 S.W.2d 420, 422-23 (Mo.App.1984). Compare also State v. Perno, 23 S.W.2d 87, 89 (Mo.1929); State v. King, 702 S.W.2d 118, 120 (Mo.App.1985); State v. Dow......
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