State v. Hawkins
| Decision Date | 30 April 1979 |
| Docket Number | No. KCD,KCD |
| Parties | STATE of Missouri, Respondent, v. Harold HAWKINS, Appellant. 29994. |
| Court | Missouri Court of Appeals |
Clifford A. Cohen, Public Defender, Kevin R. Locke, Asst. Public Defender, Kansas City, for appellant.
John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for respondent.
Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
On November 15, 1977, a jury found appellant guilty of the commission of three crimes: Robbery in the First Degree; Assault with Intent to do Great Bodily Harm with Malice; and Armed Criminal Action. Upon a finding that appellant was a second offender, the court sentenced him, respectively, to imprisonment in the Department of Corrections, ten years, fifteen years, and three years, to run consecutively, a total of twenty-eight years.
Counsel for appellant moved the court to quash the jury panel on the ground that § 494.031 RSMo 1969, permitting women on juries to be excused from jury service upon their timely application, is unconstitutional. Counsel stated to the court that he was not prepared to put on any evidence in regard to the motion, resting his motion on asserted invalidity of the juror questionnaire, and "the fact that as women may opt off jury panels at their whim, I feel, is unconstitutional on its face". The court noted that there was a test case pending in the Supreme Court on this issue, which was pending in a number of other cases, and for the purpose of the trial, the motion was denied. See Duren v. Missouri, 439 U.S. ----, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). The issue was presented in the motion for new trial, but it is not included with appellant's briefed two points on this appeal.
The matter pertaining to the Duren, supra, question, being one of constitutional nature, may and should be considered by this Court Sua sponte as plain error under Rule 27.20(c). State v. Coyne, 452 S.W.2d 227, 228(1) (Mo.1970), and cases cited; State v. Tolliver, 561 S.W.2d 407 (Mo.App.1977); State v. Henderson, 510 S.W.2d 813 (Mo.App.1974).
There was no evidence, as noted, presented as to the number or percentages of women who were excused upon their request from being members of the jury wheel; as of any resultant disproportionate number or percentage of women who actually appeared for jury service in this case. The Duren case, supra, held that in March, 1976, Duren was unconstitutionally deprived of a fair cross-section of the community by reason of the exemption of women from petit jury service which had been done systematically. In several other cases tried in Jackson County, Missouri, the state stipulated that for the year 1977, the same method of selecting jury wheels as was employed in 1976 was used. See for example, State of Missouri v. Heavey, 582 S.W.2d 284 (Mo.App.1979) (No. WD 29,834); and State of Missouri v. Peters, 582 S.W.2d 323 (Mo.App.1979) (No. WD 29,710); State of Missouri v. Tate, 582 S.W.2d 329 (Mo.App.1979) (No. WD 29,875); State of Missouri v. Buford, 582 S.W.2d 298 (Mo.App.1979) (No. WD 29,658). It is noted in the Tate case that " * * * (T)he policy employed as to automatic exemption of women upon request has in the last few years been spread upon the records of many trial courts, this Court and the Supreme Court of Missouri in a number of cases and was well and generally known". In State of Missouri v. Coleman, 582 S.W.2d 335 (Mo.App.1979) (No. WD 30,043) it is held "These proofs concede, and these precedents decide, that the systematic gender discrimination in Jackson County venires for the year 1976 which prompted reversal in Duren continued into year 1977 * * *." (All these cited cases are handed down concurrently herewith.)
The fact of systematic gender discrimination existing in the foregoing cases for the year 1977 (when this case was tried) may be judicially known by this Court under the exception to the the general rule stated in Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889(3) (1943). " Note also, Sympson v. Rogers, 314 S.W.2d 717, 721(3) (Mo.1958); Layton v. State, 500 S.W.2d 267, 269(4-8) (Mo.App.1973); and Mince v. Mince, 481 S.W.2d 610, 614 (9-14) (Mo....
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Sours v. State
...run concurrently with concurrent sentences of twenty-five years each for eight counts of robbery first degree); State v. Hawkins, 582 S.W.2d 333 (Mo.App.1979) (per Pritchard, J.) (underlying felony unspecified; three years for armed criminal action to run consecutively to ten years for robb......
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...was selected during the particular year in which the case on review was tried. State v. Beavers, 591 S.W.2d 215 (1979); State v. Hawkins, 582 S.W.2d 333 (Mo. App.1979). Similarly, we have held it to be immaterial that the defendant did not insist on a ruling with respect to the motion to qu......
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Rock v. McHenry
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Benson v. State
...of Buford that a fact pattern, once established, continues in the absence of evidence to the contrary was relied upon in State v. Hawkins, 582 S.W.2d 333 (Mo.App.1979), and State v. Beavers, 591 S.W.2d 215 (Mo.App.1979) to find Duren violations where the factual data offered to support the ......