State v. Johnson, No. 61612.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Lee M. Nation, Kansas City, for appellant
• Citation: 606 S.W.2d 624
• Parties: STATE of Missouri, Respondent, v. Cornelius JOHNSON, Appellant.
• Docket Number: No. 61612.
• Decision Date: 12 November 1980

606 S.W.2d 624

STATE of Missouri, Respondent,
v.
Cornelius JOHNSON, Appellant.

No. 61612.

Supreme Court of Missouri, En Banc.

October 15, 1980.

Rehearing Denied November 12, 1980.

Lee M. Nation, Kansas City, for appellant.

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

MORGAN, Judge.

On April 24, 1978, appellant was tried to a jury on two counts of capital murder and one of assault with intent to kill with malice aforethought and was found guilty on each count.

The Western District of the Court of Appeals reversed the capital murder convictions, generally, for alleged instructional errors and affirmed the conviction and sentence for the assault. Motions for Rehearing were overruled; but, thereafter, the cause was transferred under Rule 83.02 to this Court "because of the general interest and importance of the questions of law involved."

We believe that the sole and dispositive issue is that raised in appellant's pro se brief. Therein, he submits that he was denied due process of law because the method of selecting his jury was defective in that the percentage of female "veniremen" available was so small as to offend the fifth, sixth and fourteenth amendments. Being raised for the first time before this Court, he necessarily relies on plain error under Rule 29.12(b), formerly Rule 27.20(c).

Section 22(b) of Article I of the 1945 Constitution of Missouri provides that: "No citizen shall be disqualified from jury service because of sex, but the Court shall excuse any woman who requests exemption therefrom before being sworn as a juror." Consistent therewith, § 494.031(2), RSMo 1969, provides in part that: "The following persons shall, upon their timely application to the court, be excused from service as a juror, either grand or petit: ... (2) Any woman who requests exemption before being sworn as a juror; ...." Of immediate interest, however, is Chapter 497 of the statutory law of this state, entitled: Juries

606 S.W.2d 625

In Counties Of 450,000 to 700,000 Inhabitants (Jackson County). Suffice it to say that therein § 497.130, in aid of the selection process for jurors, declared that: "The questionnaire to be mailed to prospective jurors shall be in the following form and none other, without additions or subtractions...." The "form" in several instances tends to emphasize the declared right of women to assert an automatic exemption from jury service

On September 27, 1977, this Court in State v. Duren, 556 S.W.2d 11, rejected an attack against the statutory procedure just noted. However, the United States Supreme Court ruled otherwise in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), after finding that §§ 494.031(2) and 497.130, RSMo 1979, were unconstitutional as implemented in Jackson County, Missouri. Dictating the result was the Court's conclusion that the county's practice of liberally granting exemptions from jury duty to women who requested an exemption resulted in a serious diminution of the number of women available for jury duty and offended the "fair cross-section of the community" standard for juries enunciated in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Six days thereafter, the Court in Lee v. Missouri, 439 U.S. 815, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979), held that the decision in Duren would be given retroactive effect to all juries selected and sworn under the system in Jackson County after Taylor in 1975. In the instant case, the jury was selected and sworn on April 24, 1978-obviously within the time frame noted.

Naturally, questions arose as to when and in what manner a person convicted by such a "suspect" jury could challenge the judgment against him.¹ In the instant case, the question is reduced to whether or not the "challenge" can be asserted as plain error for the first time at the appellate level. In State v. Williams, 595 S.W.2d 378 (Mo.App. 1980), the Western District in an opinion by Wasserstrom, C. J., considered the identical issue and found as follows:

Defendant contends that it was plain error for this case to have been submitted to a jury selected by the process declared in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) to be discriminatory against women. The state seeks to distinguish Duren on the ground that defendant made no objection to the jury panel or its manner of selection in the trial court, and he raises this objection now for the first time on this appeal.

Prior decisions of this court have sustained objections based on Duren despite deficiencies in the procedure normally required for the preservation of error. Thus we have held it to be immaterial that the defendant did not introduce evidence to show the discriminatory effect of the manner in which the jury 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 quash the jury panel, although such insistence is normally required. State v. Carter, 591 S.W.2d 219 (1979).

In Carter, we pointed out that the Missouri Supreme Court in State v. Duren, 556 S.W. 2d 11, had sustained the Jackson County method of jury selection against the contention of discrimination against women; that decision dated September 27, 1977, remained in effect and binding upon all lower Missouri courts until January 9, 1979, when Duren was reversed by the United States Supreme Court; and that any challenge against jury venires in Jackson County on the basis of female discrimination were foredoomed to being overruled by the trial court during the period between those two decisions. We held in Carter (in which the trial occurred

606 S.W.2d 626

during the interval between the Missouri Supreme Court and the United States Supreme Court's Duren decisions) that "there was no real point in his the defendant pressing for a formal ruling on the motion, and the trial court was not deprived of any

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