Merritt v. State, WD

• Decision Date: 16 March 1982
• Docket Number: No. WD,WD
• Citation: 635 S.W.2d 27
• Parties: Larry MERRITT, Appellant, v. STATE of Missouri, Respondent. 32867.
• Court: Missouri Court of Appeals

Page 27

635 S.W.2d 27

Larry MERRITT, Appellant, v. STATE of Missouri, Respondent.

No. WD 32867.

Missouri Court of Appeals, Western District.

March 16, 1982.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied June

1, 1982.

James L. McMullin, Kansas City, for appellant.

John Ashcroft, Atty. Gen. and Melinda Corbin, Asst. Atty. Gen., Jefferson City, for respondent.

Before NUGENT, P. J., and TURNAGE and LOWENSTEIN, JJ.

PER CURIAM:

This is an appeal from the denial of post-conviction relief under Rule 27.26. Appellant, Larry Merritt contends his trial counsel was ineffective for failing to file a "Motion To Quash the Jury Panel due to the under-representation of women," and as a result was denied his constitutional rights under Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and that his judgment of conviction should be vacated.

Merritt was found guilty by jury verdict on August 25, 1978, of robbery in the first degree (§ 560.120, RSMo 1969) and armed criminal action (§ 559.225, RSMo Supp.1976) and sentenced to 20 years and 5 years respectively. His direct appeal resulted in both judgments being affirmed. State v Merritt, 591 S.W.2d 107 (Mo.App.1979). His motion to vacate filed in the circuit court resulted in only the conviction for armed criminal action being vacated pursuant to Sours v. State, 603 S.W.2d 592 (Mo. banc 1980). This appeal followed, Merritt claiming that his conviction for first degree robbery should have been vacated, relying primarily on the holding in State v. Williams, 595 S.W.2d 378 (Mo.App.1980). Appellant was represented at trial and on direct appeal by the same counsel from the Office of Public Defender. He retained his own counsel on the 27.26 motion.

The Duren issue was not raised at trial nor on direct appeal. The trial of State v. Merritt, supra, occurred between the decisions of State v. Duren, 556 S.W.2d 11 (Mo. banc 1977) and Duren v. Missouri, supra. Merritt's sole point concerns his trial counsel's failure to raise the Duren issue in a motion to quash the jury panel. He has not presented any evidence that the jury was improperly selected or drawn. In any case, that issue may not be decided in a 27.26 motion. Benson v. State, 611 S.W.2d 538 (Mo.App.1980).

With regard to his claim of incompetence of counsel for failure to file a motion to quash the jury panel, the facts here are similar to those in Williamson v. State, 628 S.W.2d 895 (Mo.App.1981). In Williamson, the jury verdict was on June 6, 1978, also between the time of State v. Duren and Duren v. Missouri (here the verdict came on August 28, 1978). At page 897, this court ruled that the trial court did not err in finding that trial counsel's failure to file a motion to quash did not violate the movant's sixth amendment rights, saying,

(T)he standard of conduct for lawyers is set forth in Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979), " 'The accepted standard for effectiveness of trial counsel is now established as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances. (Citations omitted.) Furthermore, there is a presumption that counsel is competent (citation omitted), and the petitioner must shoulder a heavy burden to...