Thompson v. State, 10802
| Decision Date | 24 July 1978 |
| Docket Number | No. 10802,10802 |
| Citation | 569 S.W.2d 380 |
| Parties | Douglas W. THOMPSON, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
George R. Wilhoit, Jr., Glenn E. Easley, Hyde, Purcell, Wilhoit, Edmundson & Merrell, Poplar Bluff, for movant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
In this postconviction proceeding under Rule 27.26, V.A.M.R., petitioner Douglas W. Thompson seeks to vacate a life sentence imposed by the Circuit Court of Butler County on June 1, 1961, after a jury had found him guilty of first-degree murder. The trial court has denied an evidentiary hearing and has dismissed the motion on the grounds that all the matters alleged as grounds for relief are trial errors, do not constitute a collateral attack on the judgment and sentence and are therefore not subject to review under Rule 27.26. The petitioner appeals.
The proceeding under review was commenced on August 5, 1976. The original motion or petition averred, in vague and conclusional terms: (a) that one of the instructions given at the trial unlawfully shifted the burden of proof to the petitioner, and (b) that the trial court violated the due process clause of the 14th amendment to the United States Constitution by failing to instruct the jury on murder in the second degree or manslaughter. The petitioner upon oath replied to part 10(b) of the prepared form "Prior to this motion have you filed with respect to this conviction (a)ny petitions in state or federal courts for habeas corpus"? by answering "No." He further averred that no ground for relief set forth in the petition had been previously presented to any court, state or federal. Counsel was promptly appointed for the petitioner. The State moved to dismiss the petition without an evidentiary hearing upon the ground that the petitioner had not pleaded facts which would entitle him to relief, and that the errors complained of were not cognizable under Rule 27.26. The trial court took the matter under advisement, denied an evidentiary hearing and, relying on State v. Smith, 411 S.W.2d 208, 210(7) (Mo.1967), and like rulings, held that all the petitioner's allegations were directed to trial errors and were therefore not subject to review under Rule 27.26. Well within 30 days thereafter, the court set aside its order and granted leave to file an amended motion.
On May 31, 1977, the petitioner filed an amended motion, setting up, in substance, that he had been deprived of a fair and impartial trial because: (a) he was not permitted to conduct a voir dire examination of the jury panel sufficient to determine whether or not the jurors were prejudiced; (b) the courtroom was "dominated" by the presence of armed police officers in the courtroom; (c) the petitioner was deprived of a trial by jury composed of a true cross-section of the community; and (d) the trial court improperly suppressed evidence which would have demonstrated the petitioner's innocence, or "allowed" a witness to perjure himself. The petitioner prayed an evidentiary hearing. The amended motion was taken under advisement. The trial court again reviewed the original motion and considered the amendments thereto, denied an evidentiary hearing and again dismissed the petition upon a finding that all the allegations of the petition were directed to trial errors, did not constitute a collateral attack upon the judgment, and were not reviewable in a proceeding under Rule 27.26. The petitioner has appealed from this order.
While we do not propose to decide this appeal on procedural grounds, a prefatory note seems appropriate. The substance of the petitioner's argument in this court is that even if the allegations of the petition are directed to trial errors, those errors were such as to infringe the petitioner's constitutional rights; therefore he should have been granted an evidentiary hearing. There is authority for the proposition that trial errors may be reviewed in a postconviction proceeding if the trial error affects constitutional rights, but that principle is subject to the qualification that trial error is not made reviewable simply by alleging in conclusional terms that the trial error violated the petitioner's constitutional rights. Crawford v. State, 554 S.W.2d 491, 493(3) (Mo.App.1977). Certainly it is arguable here that the petition is insufficient as a pleading, even if constitutional issues are indirectly involved. For example, the original motion, which appears to have been drafted pro se, contains the allegation that the burden of proof was unconstitutionally shifted to the defendant by the giving of a single instruction. The rule ordinarily applied to postconviction proceedings challenging state convictions is that the constitutional effect of a charge to the jury may not be determined by isolated review of a single instruction. Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 373 (1973). 1 Therefore it could easily and quite reasonably be maintained that allegations of constitutional error based on the giving of a single instruction raise no genuine constitutional question. Young v. Anderson, 513 F.2d 969, 972(3, 4) (10th Cir. 1975). And, without elaborating, a persuasive argument could be made that the petitioner's challenge to the composition of the jury is insufficient to raise a constitutional question in the absence of an allegation that a contemporaneous (i. e., timely) objection was made by challenge to the array, or allegations of cause for untimely challenge and prejudice resulting from the improper selection of the venire. Our law requires that a challenge to the array of petit jurors be made before the jury is sworn, State v. Robinson, 484 S.W.2d 186, 188(4) (Mo.1972), and constitutional objections to the composition of a jury may be waived by failure to make a timely objection. Cf. Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505-2506, 53 L.Ed.2d 594, 606-607 (1977); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Fields v. State, 468 S.W.2d 31, 32(1) (Mo.1971).
The point of this extended preliminary discussion is to demonstrate that we would be obliged to affirm the...
To continue reading
Request your trial
-
Presley v. State
...is observed in this state. Herron v. State, 614 S.W.2d 715 (Mo.App.1981); Benson v. State, 611 S.W.2d 538 (Mo.App.1980); Thompson v. State, 569 S.W.2d 380 (Mo.App.1978). Of course, the obligation to pose a timely objection generally rests upon counsel. A failure to do so may constitute inef......
-
State v. Lindsey, 12004
...were not preserved by timely objections and are not for appellate review. State v. Robinson, 484 S.W.2d 186 (Mo.1972); Thompson v. State, 569 S.W.2d 380 (Mo.App.1978). Defendant's remaining points have been reviewed and we find no error calling for The judgment is affirmed. MAUS, C. J., TIT......
-
Weir v. State
...See, E. g., Hemphill v. State, 566 S.W.2d 200, 207 (Mo. banc 1978); Turley v. State, 571 S.W.2d 465 (Mo.App.1978); Thompson v. State, 569 S.W.2d 380 (Mo.App.1978). The following statement of the basis for such results appears in McCrary v. State, 529 S.W.2d 467, 472 (Mo.App.1975), "(I)t is ......
-
Ross v. State, 12094
... ... Hemphill v. State, 566 S.W.2d 200, 207(14) (Mo.banc 1978); Thompson v. State, 569 S.W.2d 380, 382(3, 4) (Mo.App.1978). Points not raised in the trial court nor on direct appeal from a conviction ordinarily cannot be ... ...