State v. Harlin, 59913

• Citation: 556 S.W.2d 42
• Decision Date: 27 September 1977
• Docket Number: No. 59913,59913
• Parties: STATE of Missouri, Respondent, v. Emerson E. HARLIN, Appellant.
• Court: United States State Supreme Court of Missouri

Page 42

556 S.W.2d 42

STATE of Missouri, Respondent, v. Emerson E. HARLIN, Appellant.

No. 59913.

Supreme Court of Missouri, En Banc.

Sept. 27, 1977.

Rehearing Denied Oct. 11, 1977.

Lee M. Nation, Kansas City, for appellant.

Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Defendant, convicted of robbery first degree (§ 560.135, RSMo Supp. 1975) and sentenced to twenty years of imprisonment, appealed to the Missouri Court of Appeals, Kansas City district. The cause was transferred here prior to opinion as defendant raised issues of constitutional construction falling within the exclusive appellate jurisdiction of this court under Mo.Const. Art. V, § 3, as amended 1976.

For his sole contention defendant charges as error the trial court's failure to quash the jury panel because Missouri's jury selection process, prescribed by Mo.Const. Art. I, § 22(b) ¹ and its implementing statute § 494.031(2), RSMo Supp. 1975, ² systematically excludes women.

It is stated in defendant's brief that he had "moved to strike the jury panel . . . as violative of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. A hearing was held and evidence was received." No record appears of such motion having been made prior to or during trial. ³ That being so, the court had no opportunity to correct the alleged error and the point is not preserved for review. State v. Anderson, 375 S.W.2d 116, 120(8) (Mo.1964). However, the following appears in the transcript of the hearing on defendant's motion for new trial:

"MR. MERRITT (defense counsel): If it please the Court, I made a motion during trial before the jury was sworn to the effect that to ask for the quashing of the jury for the reason that the jury panel was unconstitutionally that is, by the United States Constitution, designed to omit female members. They were allowed to excuse themselves from jury duty. That ruling was over that motion was overruled by the Court. I did not include that in the motion for new trial. I should have. I would ask the Court to allow the inclusion of that point in the motion for new trial. (Emphasis ours.)

THE COURT: Of course you may."

Following the granting of defendant's oral request to amend his motion for new trial, the court permitted introduction of evidence relative to the Jackson County jury selection system and gender composition of the challenged panel. While the trial court's ruling and its subsequent action permitting the evidentiary hearing more than ten days after verdict runs counter to this court's decision in State v. Tucker, 451 S.W.2d 91 (Mo.1970) and Rule 27.20(a), such action is supportive of defendant's assertion that he had in fact moved to quash before the jury was sworn, the transcript reveals no such pretrial motion. If defendant believed the transcript deficient in that regard, it was incumbent upon him to bring such deficiencies to the attention of the trial court under Rule 81.12 affording it the opportunity to correct such omissions and misstatements, or point out such deficiencies to the appellate court following filing of the transcript there. Having failed so to do, defendant's contention is denied since matters contained in appellant's brief or elsewhere, but not incorporated in or made a part of the officially approved transcript, may not be considered on appeal. State v. Burrington, 371 S.W.2d 319 (Mo.1963). Nevertheless, because of the above described matters occurring in connection with defendant's motion for new trial, we examine for plain error under Rule 27.20(c).

Defendant contends that Mo.Const. Art. I, § 22(b), and its implementing statute, § 494.031(2), RSMo Supp. 1975, permitting women the option of declining jury service, have been rendered invalid by the decision of the United States Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). There the Court struck down provisions of the Louisiana Constitution and its implementing statute requiring women to file a written declaration with the clerk of the district court expressing their desire or intent to be subject to jury service before their names would be included in jury wheels or panels. The question, of whether the cited Missouri constitutional provision and its implementing statutory section are facially valid after Taylor, was fully considered and ruled against what is essentially this defendant's contention, in the companion case State v. Duren, No. 59914, 556 S.W.2d 11 (Mo.banc 1977), decided this date.

The only question remaining is whether from the evidence it has been shown that under the Jackson County jury selection process the resulting...