Selman v. State

• Decision Date: 08 June 1970
• Docket Number: No. 55020,No. 2,55020,2
• Citation: 454 S.W.2d 530
• Parties: Alonzo Virgil SELMAN, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 530

454 S.W.2d 530

Alonzo Virgil SELMAN, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 55020.

Supreme Court of Missouri, Division No. 2.

June 8, 1970.

Pohlmann & Dieckman, Lloyd F. Dieckman, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

PRITCHARD, Commissioner.

Appellant was convicted of the crime of assault with intent to kill and in 1965 the judgment of conviction was affirmed. State v. Selman, Mo., 391 S.W.2d 193. Inasmuch as the appointed counsel filed no brief on the direct appeal, the affirmance was set aside (Bosler v. Swenson (C.A.8th), 363 F.2d 154), the direct appeal was reinstated, and was consolidated with a then pending appeal from a judgment overruling a motion to vacate the judgment under Supreme Court Rule 27.26, V.A.M.R. The judgment of conviction on the direct appeal was again affirmed, and the judgment overruling the motion to vacate judgment and sentence was also affirmed by decision October 30, 1968. See State v. Selman, Mo., 433 S.W.2d 572.

According to appellant's motion and his brief, he filed a petition in habeas corpus in the United States District Court for the Western District of Missouri which was dismissed without prejudice 'for the reason that petitioner had not effectively exhausted his State remedies.' That order gave rise to the filing of the instant motion to vacate the judgment and sentence. On July 14, 1969, the trial court overruled the motion without first holding an evidentiary hearing on the finding 'from the files and records of this Court that the grounds presented by the instant motion were raised and determined adversely to Movant in a substantially identical motion filed pursuant to Rule 27.26 on the 1st day of June 1966 (State of Missouri vs. Alonzo Virgil Selman, 433 S.W.2nd 572).'

In the present motion the grounds for relief set forth are: '(a) Ineffective Assistance of Counsel; (b) Defective Information; (c) Errors Of The Trial Court; (d) Unconstitutional Selecting Of The Jury.' On this appeal appellant first asserts that he has been denied the right of a fair trial. In argument he develops the assertion in four respects. The first of these is the contention that the jury was instructed to change its verdict. The transcript of the record of the trial which is before this court, and was before the trial court, reveals that the jury did return a written verdict which quite apparently did not conform to the instruction on the forms of verdict. The jury was returned to the jury room with instructions to direct its attention to the form of verdict and that its written verdict must conform thereto. Thereafter the jury did return into court a proper responsive verdict. No objection to the procedure was then made, but more importantly, the same contention was made in the original motion to vacate and the trial court in denying the motion found 'that none of the factual allegations in said motion to vacate judgment and sentence are true' but were untrue. The matter was not briefed on appeal, and was therefore finally adjudicated. Crosswhite v. State, Mo., 438 S.W.2d 11, 12(1).

The second contention is that a former policeman and a juror who had a good friend on the police force and who had read of the case and heard of the case in news media were allowed to remain on the jury. The trial transcript shows that a Mr. Pem was on the Independence police department for about a year, and stated that he would be able to render a fair and impartial verdict. No objection was made to his selection as a juror for any reason. A Mr. Pugh stated he had a good friend who was once on the Prairie Village police force, and knew a few police officers downtown in business. He stated these facts would not prejudice him in the case. Again no objection was made. If there were any merit in appellant's contention, the same may not be considered in a motion to vacate sentence because they are merely trial errors which are outside the scope of such proceedings. Rule 27.26(b)(3); State v. Macon, Mo., 403 S.W.2d 630; Wilwording v. State, Mo., 438 S.W.2d 447, 449(3).

The third contention is that appellant was denied a fair and impartial trial because the court discussed material evidence with the jury during his trial. Reference is made to the trial transcript which shows that the same matter was ruled on the original appeal (see 391 S.W.2d 193, 195). Although that opinion was set aside, appellant did not choose to again assert it on the new appeal (433 S.W.2d 572). Under Rule 28.02, V.A.M.R., the issue is deemed abandoned and finally adjudicated, Crosswhite v. State, supra, and cannot now be the basis for a second appeal in this proceeding, White v. State, Mo., 430 S.W.2d 144, 146.

The fourth contention is that appellant 'was denied a fair trial in that the prosecuting attorney and the court appointed counsel were allowed to discuss guns used in other robberies in the presence of the jury, and that same was unconstitutionally prejudicial.'...