State v. Heavey

• Decision Date: 30 April 1979
• Docket Number: No. KCD,KCD
• Citation: 582 S.W.2d 284
• Parties: STATE of Missouri, Respondent, v. Thomas C. HEAVEY, Appellant. 29834.
• Court: Missouri Court of Appeals

Page 284

582 S.W.2d 284

STATE of Missouri, Respondent, v. Thomas C. HEAVEY, Appellant.

No. KCD 29834.

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.

Clifford A. Cohen, Public Defender, Kevin R. Locke, Lee Nation, Asst. Public Defenders, Kansas City, for appellant.

John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.

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

TURNAGE, Judge.

Thomas Heavey was convicted of assault with intent to commit sodomy, § 559.180, RSMo 1969. He was sentenced to confinement for thirty years under the Second Offender Act.

On this appeal Heavey contends the trial court erred in overruling his motion to quash the jury panel because the procedure followed in Jackson County for the selection of jury panels denied him a jury that was representative of a cross-section of the community in violation of his rights under the Sixth Amendment of the United States Constitution. Reversed and remanded.

Heavey was tried in August, 1977. His counsel filed a written motion to quash the jury panel because the Jackson County procedure for selection of jury panels denied him a fair cross-section of the community in the composition of his jury. In addition, Heavey filed a pro se motion.

Following an evidentiary hearing on a motion to suppress evidence held prior to the beginning of the trial, counsel orally moved to quash the jury panel upon the same grounds as previously asserted. During argument on that motion, Heavey's counsel stated he and the State had entered into a stipulation to the effect that the selection of jury panels used in the past was the same procedure by which the jury panel about to hear Heavey's case was chosen. The following then occurred:

MS. FORTNEY: In reference to that stipulation, the State would stipulate to the testimony as to the '77 wheel that was given in the Claude M. Hardy case, which was in front of Judge Randall in Division Four, and that testimony was in regard to the '77 jury wheel, and the State would stipulate to that testimony.

THE COURT: That it was the same as the '76?

MS. FORTNEY: Yes. It is my understanding that that's what that testimony was.

The State contends on this appeal that Heavey's contention concerning the composition of the jury wheel is not tenable because there is no evidence in the record to show the number of women whose names were in the wheel from which Heavey's jury was selected. The State contends the only evidence in this record is the composition of jury wheels in 1976 which cannot be applied here to a trial which occurred in 1977. It is obvious from the statement by the assistant prosecuting attorney, quoted above, that the method of selection and the composition of jury wheels in Jackson County was the same in 1977 as it was in 1976.

The prosecutor referred to the Claude M. Hardy case. The Hardy case was appealed to this court and the conviction was affirmed in State v. Hardy, 568 S.W.2d 86 (Mo.App.1978). In that case Hardy attacked the jury selection system as applied to Jackson County and this court relied on State v. Duren, 556 S.W.2d 11 (Mo. banc 1972) and affirmed. Thereafter the United States Supreme Court in Duren v. Missouri, 439 U.S. ----, 99...