Presley v. State

• Decision Date: 15 April 1988
• Docket Number: Nos. 15177,15188,s. 15177
• Citation: 750 S.W.2d 602
• Parties: Kenneth PRESLEY, Movant-Respondent, v. STATE of Missouri, Appellant. Kenneth PRESLEY, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 602

750 S.W.2d 602

Kenneth PRESLEY, Movant-Respondent, v. STATE of Missouri, Appellant.

Kenneth PRESLEY, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 15177, 15188.

Missouri Court of Appeals,

Southern District,

En Banc.

April 15, 1988.

Motion for Rehearing and/or Transfer

Denied May 2, 1988.

Application to Transfer Denied June 14, 1988.

Ronald A. Conway, Springfield, for Kenneth Presley.

William L. Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for the State.

FLANIGAN, Judge.

Movant Kenneth Presley and the State of Missouri filed separate appeals from the trial court's order, entered after evidentiary hearing, sustaining with respect to one ground, but overruling with respect to the other grounds, movant's Rule 27.26 ¹ motion to set aside a judgment and sentences for seven sexual offenses. The convictions were based on a jury verdict returned after defendant was tried on a multi-count information. This court affirmed the convictions, State v. Presley, 694 S.W.2d 867 (Mo.App.1985). The two appeals have been consolidated in this court and the appeal of the state, taken pursuant to § 512.020 (see Rule 27.26(j)), will be considered first.

The trial court's order vacated the judgment containing the convictions and granted movant a new trial on all counts of the information. The ground on which the trial court based its order was that movant was denied effective assistance of counsel at the jury trial in that his counsel failed to challenge for cause venireman Francis Cates who, following voir dire examination, sat as a member of the jury. The state's appeal challenges the trial court's ruling with respect to that ground.

It is the position of the state that the trial court erred in granting movant relief because: (a) even if counsel's failure to challenge for cause venireman Cates was a mistake, the record fails to demonstrate prejudice, and a showing of prejudice is required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984); and (b) the ground on which the trial court granted relief, improper jury selection, may not be considered in this Rule 27.26 proceeding because movant waived it by not raising it on his direct appeal from the jury trial.

The material events took place during the voir dire examination segment of the jury trial. In response to defense counsel's inquiry, "Anyone else ever been a victim of a crime?", venireman Cates replied that "seven years ago" his home was burglarized, "the businesses have been broken into several times and one armed robbery, and my daughter was exposed by an exhibitionist about three years ago that we reported." The following colloquy then took place:

"DEFENSE COUNSEL: Were you in your place of business when you had the armed robbery?

VENIREMAN CATES: No.

DEFENSE COUNSEL: Was it in the place of business?

VENIREMAN CATES: Yes.

DEFENSE COUNSEL: Anything about that or the burglary of seven years ago or your daughter's incident which would make you unable to sit in judgment fairly on my client, fairly today?

VENIREMAN CATES: I don't, yes, I think I'd be a little partial to your client, or against your client.

DEFENSE COUNSEL: You'd be partial to the state?

VENIREMAN CATES: Right."

At the conclusion of the voir dire examination defense counsel made three challenges for cause, two of which were sustained and one, against venireman Fetter, was denied. None of those challenges involved venireman Cates.

At the motion hearing, counsel for both sides stipulated that the jury list, used by the trial judge at the jury trial, bore the comment "partial to state" opposite the name of venireman Cates, and that the comment was written by the trial judge during the voir dire examination.

At the motion hearing, under questioning by counsel for the state, movant testified as follows:

Q. Did you hear your attorney call for the strikes?

A. Yes.

Q. Did you object?

A. I objected to him striking Mr. Fetter instead of Mr. Cates.

Q. Did you tell him that in court?

A. Yes, I did.

Q. In open court?

A. Yes, I did.

Q. Did you tell the court that you objected to that?

A. No, he advised me to keep quiet, he was my attorney.

At the motion hearing, the state called the attorney who had represented movant at the jury trial. He testified that he remembered venireman Cates and that he had made notes while conducting his voir dire examination. Asked why he had not challenged Cates for cause, the attorney stated, "I looked at my notes today and it's my impression that I remember him saying he was not impartial.... I realize that in the transcript Cates said he could not be impartial. My notes and my recollection of what Cates said were different from what the transcript says.... I did say in my notes that certain veniremen were prejudiced, but I had no such notation by Cates' name.... I don't recall whether [movant] made objections to me at the time of voir dire on my failure to strike Cates.... When I read the transcript [of voir dire examination] last night and this morning, the transcript is different from what my recollection was. The reason I did not ask for [Cates] to be stricken was I believed at that time he was impartial."

The transcript of the voir dire examination mentioned by defense counsel was only a partial one when he testified at the motion hearing. Thereafter, Judge Donald Bonacker, who presided at the motion hearing after movant had disqualified the judge who had presided at the jury trial, obtained a complete transcript of the voir dire examination. The complete transcript, admitted into evidence in the motion proceeding by agreement of the parties, contained nothing which would serve to rehabilitate venireman Cates from the partiality which he had candidly expressed.

Judge Bonacker's findings of fact included the following:

"8. The members of the jury panel, or Juror Cates in particular, were not asked at any stage of the voir dire examination whether they believed they could be or would be fair and impartial if selected as a member of the jury.

9. Juror Cates, frankly, intelligently, clearly and honestly answered all questions placed to him during voir dire examination and revealed he was partial to the state.

10. Defense counsel failed to request the removal of Juror Cates from the jury panel for cause.

11. Defense counsel was the sole counsel for Movant at the trial and the Court does believe that his duties in maintaining notes, mental and written, during his voir dire examination of the jury caused him to move to strike another juror from the panel for cause believing he was moving to strike the juror who answered as indicated above. The motion to strike another juror for a reason that could have been assigned to Juror Cates was denied.

12. This Court firmly believes the trial judge would have sustained a motion to strike Juror Cates, if the motion had been made.

13. ... [T]rial counsel wrote in his notes 'prejudiced in favor of State' next to the name of another juror and this court believes [defense] counsel attributed the statement of Juror Cates to another juror in his notes, by mistake. The trial judge did not correct defense counsel's identification of the juror making that response."

In this court the brief of the attorney general, representing the state on this appeal, states: "[T]here is little question that the defense attorney, based upon his notes taken during the voir dire examination, challenged venireman Fetter for the actual reason that would have supported a strike of venireman Cates." The state's brief also states that venireman Cates' comments "would certainly have provided support for a request to strike him for cause" and that "the record reveals a sad failure on the part of defense counsel, the prosecution, and the trial court, to further pursue this matter."

Appellate review in this proceeding is limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous. Rule 27.26(j); Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984). For the reasons which follow, this court holds that the judgment of the trial court granting relief on the ground under consideration is not clearly erroneous.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court said at 104 S.Ct. 2064:

"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

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A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

At p. 2067 the Court said:

"In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel's assistance. See United States v. Cronic, 466 U.S., at 659, and n. 25, 104 S.Ct., [2039] at 2046-2047, and n. 25 [80 L.Ed.2d 657 (1984) ]. Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.

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Attorney errors come in an infinite variety and are as likely to be utterly...