State v. Henke, No. WD

• Decision Date: 10 December 1991
• Docket Number: No. WD
• Citation: 820 S.W.2d 94
• Parties: STATE of Missouri, Respondent, v. Ralph E. HENKE, Appellant. 44357.
• Court: Missouri Court of Appeals

Page 94

820 S.W.2d 94

STATE of Missouri, Respondent, v. Ralph E. HENKE, Appellant.

No. WD 44357.

Missouri Court of Appeals Western District.

Dec. 10, 1991.

James J. Wheeler, Keytesville, for appellant.

David A. McAllister, Pros. Atty., Keytesville, for respondent.

Before BERREY, P.J., and ULRICH and HANNA, JJ.

ULRICH, Judge.

Appellant Ralph Henke appeals his conviction for driving while intoxicated (§ 577.010, RSMo 1986). Mr. Henke claims trial court error in denying his pretrial motion to quash the jury panel. The issue presented is whether the jury was selected in substantial compliance with §§ 494.400 to .505, RSMo Supp.1990. ¹ The judgment is reversed, and the case is remanded for new trial.

Mr. Henke was charged with driving while intoxicated and with operating a motor vehicle in a careless and reckless manner. The case was tried before a jury on September 26, 1990. The jury found Mr. Henke not guilty of careless and reckless driving but failed to decide the charge of driving while intoxicated. The charge of driving while intoxicated was rescheduled for trial on December 13, 1990. On December 12, 1990, Mr. Henke filed his pretrial motion to quash the jury panel. Evidence was presented regarding the appellant's motion, and on December 13, the trial court overruled the motion. Count 2 was again tried before a jury which, on December 14, 1991, returned a verdict finding Mr. Henke guilty of driving while intoxicated in violation of § 577.010, RSMo 1986.

On appeal, Mr. Henke challenges the jury selection process practiced in his case as being violative of §§ 494.400 to .505. The evidence presented at the hearing held on the motion to quash the jury panel revealed the following facts. Mr. Widmer, the Clerk of the Circuit Court, and Mr. Ramsey, the County Clerk, both members of the board of jury commissioners (board), convened to compile a master jury list pursuant to § 494.410. Mr. Widmer obtained 5,400 names from the court administrator's office. These names were input into a computer, and Mr. Widmer added an additional 600 names. Mr. Widmer and Mr. Ramsey, through the use of a computer program, randomly obtained a list of 120 names. This list was then reduced to eighty-five names by Mr. Widmer and Mr. Ramsey. The two men deleted the names of those individuals whom they knew were "in nursing homes or deceased, have moved out of the county, or [were] students away in college and such." A summons for jury service and a juror qualification form were then mailed to the remaining eighty-five individuals. The members of the board reviewed the responses to the qualification forms and reduced the list to forty individuals, which constituted the qualified jury list. § 494.415.3.

The appellant must make a proper, timely objection in order to challenge the jury selection process. State v. Sumowski, 794 S.W.2d 643, 647 (Mo. banc 1990). "When there is a proper, timely objection to improper jury selection, the test is whether there has been substantial compliance with the statute. However, there is a strong presumption that the jury tendered at the outset of the trial has been properly selected." Id. See also § 494.465.1.

Mr. Henke timely objected to the jury panel selection with his motion to quash the jury panel. State v. Bost, 820 S.W.2d 516 (Mo.App.1991) (citing § 494.465.1). Mr. Henke, at the pretrial hearing, developed several challenges to the jury selection process, which he has briefed on appeal. Mr. Henke argues that the board did not send statutory jury summons and qualification forms to all jury venire candidates, the board members improperly disqualified certain venire candidates, and the board did not inform disqualified candidates by sending the required notification that they had been disqualified.

Sections 494.400 to 494.505 promulgate the procedure and rules governing jury selection. Section 494.415.1 prescribes:

From time to time and in a manner prescribed by the board of jury commissioners there shall be drawn at random from the master jury list the names or identifying numbers of as many prospective jurors as the court may require. The board of jury commissioners shall cause to be served in a manner prescribed by law for the service of summons or by ordinary mail, as determined by the board, a summons for jury service and a juror qualification form.

Section 494.415.2 further states:

If it is determined from an examination of the juror qualification form that a person is not qualified to serve as a juror, that prospective juror shall be notified in a manner directed by the board of jury commissioners and shall not be required to comply with the summons for jury service. Such names shall be deleted from the master jury list.

...