State v. Buford, KCD

• Decision Date: 30 April 1979
• Docket Number: No. KCD,KCD
• Citation: 582 S.W.2d 298
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Arthur BUFORD, Defendant-Appellant. 29658.
• Court: Missouri Court of Appeals

Page 298

582 S.W.2d 298

STATE of Missouri, Plaintiff-Respondent, v. Arthur BUFORD, Defendant-Appellant.

No. KCD 29658.

Missouri Court of Appeals, Western District.

April 30, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 11, 1979.

Application to Transfer Denied July 17, 1979.

Larry O. Denny, Kansas City, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Majorie Wholey Haines, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.

DIXON, Judge.

This is a direct criminal appeal from convictions of first degree robbery, assault with intent to kill with malice, and assault with intent to kill without malice. Defendant was sentenced to terms of twenty years, ninety-nine years, and five years for the respective counts, with the sentences to be served concurrently. The convictions were had on a five-count indictment; the jury acquitted the defendant on two counts.

Several complex issues concerning the trial proceedings must be examined, but before turning to these issues, the defendant's claim that his motion to quash the jury panel was improperly overruled must be considered. The defendant timely filed a motion to quash the jury panel on the theory that the jury selection procedures in Jackson County resulted in a jury panel which denied the defendant a fair cross section of the community. Defendant's claim is that the questionnaire utilized in Jackson County under § 497.130 RSMo 1969 results in a disproportionate number of women being available for jury service. This motion was originally supported by a stipulation showing the composition of the jury wheel in Jackson County for the year 1976. Prior to the court's ruling on the motion, the defendant's counsel provided evidence by additional exhibits that the 1977 jury wheel was composed in the same fashion as the 1976 jury wheel. This was offered as a supplement to the original stipulation and was explicitly acceded to by the State.

The State in its brief and in the oral argument of this case takes the position that the stipulation and the attached exhibits do not afford a basis for the application of the rules announced in Duren v. Missouri, --- U.S. ----, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and Lee v. Missouri, --- U.S. ----, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979).

The thrust of the State's contention is that the stipulation in the instant case showed only the manner of selection of the jury wheel and not the ultimate composition of the wheel. The letter exhibit shows that the number of persons disqualified by response to the questionnaire in 1977 was 38,796 out of a total of 73,336 questionnaires mailed. In 1976, 65,207 questionnaires were mailed, and 37,339 were returned with responses showing the prospective jurors were not eligible or elected not to serve. Of that latter number, the 1976 stipulation reveals that 21,884 females declined to serve for no apparent reason other than the election to be excused on the basis of gender. The stipulation for 1976 also shows the numbers of those females disqualified because of age, prior jury service, disability, and occupation as teachers. In the 1977 jury wheel chosen by the same process, it is likely that approximately the same number of females declined to serve in 1977 solely by reason of the statutory right to decline jury service; there is no basis to suppose otherwise. To assume otherwise would require this court to presume that over one-half of the persons chosen at random were disqualified for reasons other than election not to serve by gender. It would also require an assumption that the process identical to the 1976 process did not operate to provide a jury wheel of approximately the same proportions as that which the Supreme Court declared improper in Duren. Duren, in the following language, precisely defines the systematic underrepresentation of women in the Jackson County wheel (99 S.Ct. at 669):

"(The) undisputed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of nearly a year manifestly indicates that the cause of the underrepresentation was systematic that is, inherent in the particular jury-selection process utilized."

The proof is sufficient to show that the selection of juries under the provisions of § 497.130 RSMo 1969, as it impacts upon the option of females to serve as jurors, results in a constitutionally impermissible jury wheel under the holdings in Duren v. Missouri, --- U.S. ----, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and Lee v. Missouri, --- U.S. ----, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979).

Both the State and the defendant urge that this court consider several of the other issues since they are likely to recur on remand. These issues can be summarized as (1) a claim of constitutional error in failing to grant severance under Rule 24.04; (2) a claim of improper joinder of the alleged offenses under Rule 24.04; (3) a claim that the first degree robbery charge and the charge of assault with intent to kill with malice subjected defendant to multiple convictions and defenses in violation of his right to be free of double jeopardy; and (4) a claim of error in overruling the motion to suppress the identification of the defendant by witness Margaret Mathews.

The facts are critical both to the issues of joinder and to the claim that two of the charges are duplicitous. On June 8, 1976, at approximately 10 a. m., the defendant came to the residence of Alice Faye Jackson and Albert Hughes at 4308 Garfield. After knocking on the door, defendant told Miss Jackson that he was coming in and then kicked the door open. On entering the residence, the defendant told Miss Jackson to get Albert Hughes' gun. When he had received the gun, defendant told Miss Jackson to follow him.

Accompanied by a second black male, the two went to the home of Margaret Mathews across the street. After knocking, then kicking the door in, the evidence shows that defendant entered Margaret Mathews' bedroom, waking her from a deep sleep. He asked where the keys to her car were and was told that they were in her purse. On receiving this response, defendant fired three times at Margaret Mathews, then went into another room. The room was described by Margaret Mathews as her sewing room and was not the dining room where her purse was later found. Mathews attempted to call an ambulance, but was interrupted by the defendant returning to her room where he pulled the telephone out of the wall, shot her toy poodle, and then shot Margaret Mathews twice more. The police discovered six shell casings on the dining room table and Margaret Mathews' car keys were gone from her purse. After the defendant left, ostensibly in the Mathews' car, she was able to summon a neighbor for help.

A short time after the events on Garfield, the defendant entered another residence at 6103 Walrond by kicking in the door. At this residence, the defendant had an altercation with one Ronald Meade in which both defendant and Meade were wounded. Defendant was arrested at approximately 11 a. m. that morning at a home a short distance from 6103 Walrond. Margaret Mathews' car was recovered in front of Ronald Meade's house; the car keys were not found. A revolver and spent casings found in defendant's possession at the time of the arrest were shown to match ballistically the spent bullets and cartridge cases found in Margaret Mathews' home.

A line-up was conducted on June 8, 1976, and the defendant was identified by several witnesses; this line-up was conducted prior to any formal charge against the defendant. Because of the critical nature of her injuries, Margaret Mathews did not attend the line-up. In February of 1977, some months later, in the office of the prosecutor, Mathews was shown a number of photographs that had been taken at the June 8th line-up. From those photos, Margaret Mathews identified the defendant, Arthur Buford, as her assailant. This photographic identification was admitted into evidence during the trial of the defendant.

As previously noted, the defendant was originally charged with five offenses, in five counts, only three of which are relevant in this appeal because the jury acquitted defendant on two counts. The remaining counts which raise the issues to be resolved are as follows: Count II, charging Buford with first degree robbery in connection with the forceful taking of Margaret Mathews' car keys; Count III, charging the defendant with assault with intent to kill with malice, in connection with the shooting of Margaret Mathews; and Count IV charging assault with intent to kill without malice arising from the shooting of Ronald Meade.

Defendant argues under the first issue raised that joinder of Counts II, III, and IV was improper because Rule 24.04 is unconstitutional under Article V, § 5 of the Missouri constitution because the rule affects substantive rights. This issue has been both extensively discussed and positively resolved against the position of the defendant.

State v. Baker, 524 S.W.2d 122 (Mo. banc 1975), announced the rule that a "defendant does not have either a federal or state constitutional right to be tried on only one offense at a time." Supra at 126. Baker further held that Rule 24.04 is a procedural rule which does not change substantive rights. Supra at 127. That holding has been reiterated in numerous cases from this court and others in the State. See State v. Duren, 556 S.W.2d 11, 19-20 (Mo. banc 1977), Rev'd on other grounds, --- U.S. ----, 99 S.Ct. 664, 58 L.Ed.2d 579; State v. Perkins, 555 S.W.2d 693 (Mo.App.1977); Woods v. State, 546 S.W.2d 14 (Mo.App.1977).

The second issue raised under Rule 24.04 that of the joinder of the robbery and assault counts involving Margaret Mathews, Counts II and III, with the assault charge involving Ronald Meade Count IV, is a difficult and complex issue. Rule 24.04 in relevant portion reads as follows:

"(b) With the...