Wallace v. State, 38003

• Decision Date: 13 September 1977
• Docket Number: No. 38003,38003
• Citation: 556 S.W.2d 471
• Parties: Joseph L. WALLACE, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 471

556 S.W.2d 471

Joseph L. WALLACE, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.

No. 38003.

Missouri Court of Appeals, St. Louis District, Division Two.

Sept. 13, 1977.

Theodore Guberman, Asst. Public Defender, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

McMILLIAN, Presiding Judge.

Defendant appeals from an order of the circuit court of the City of St. Louis refusing to grant him an evidentiary hearing and assistance of counsel for his Rule 27.26 motion. For reversal, defendant claims that the court should have ordered an evidentiary hearing because the "files and records of the case (did not) conclusively show he was entitled to no relief" (27.26(e)), and the trial court should have appointed counsel because his motion presented an issue of fact (27.26(h)). We find no merit in these allegations of error and accordingly affirm.

On October 5, 1971, defendant was convicted by a jury on a charge of murder alleged to have occurred on November 4, 1970, and punishment was assessed at life imprisonment. Defendant appealed and the judgment was affirmed by the Supreme Court of Missouri in State v. Wallace, 504 S.W.2d 67 (Mo.1973).

On January 19, 1976, defendant filed a motion to vacate, set aside or correct under Rule 27.26 claiming that he "was denied a jury of his peers that truly reflected a cross-section of the community in that there was only one Negro on the jury." The affidavit of the trial judge indicates that of the sixty-six veniremen summoned, twenty-one were blacks and of the forty-seven veniremen selected, four blacks were struck by the defendant's court-appointed attorney.

To entitle a 27.26 movant to an evidentiary hearing, the movant must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the trial. Smith v. State, 513 S.W.2d 407, 411 (Mo. Banc 1974).

Here appellant has failed to plead facts which would entitle him to relief, and therefore is not entitled to an evidentiary hearing. He has alleged that he was "denied a jury of his peers that truly reflected a cross-section of the community" but this allegation alone entitles him to nothing. A defendant has a right to a jury selected from a representative cross-section of persons in the community but this does not mean every jury panel must contain persons from every group. It does mean that there can be no deliberate exclusion of any legally qualified group. State v. Smith, 467 S.W.2d 6, 7 (Mo.1971). A systematic exclusion must be alleged and proved in order to impeach a jury panel on this ground. State v. Mooring, 445 S.W.2d 303, 305 (Mo.1969); State v. Dowe, 432 S.W.2d 272, 275 (Mo.1968); State v. Taggert, 443 S.W.2d 168, 170 (Mo.1969). Defendant must allege that the exclusion of blacks is made in case after case, whatever the circumstances, whatever the crime and whoever the defendant or victim may be with the result that no Negroes ever serve on petit juries. Edwards v. State, 535 S.W.2d 124, 125 (Mo.App.1976), Swain v. Alabama, 380 U.S. 202, 223, 85 S.Ct. 824, 837, 13 L.Ed.2d 759 (1965).

Because defendant alleged only that he was denied a jury which reflected a cross-section of the community and not that the racial composition of his jury was due to a systematic exclusion of blacks, he has failed to plead facts which would entitle him to relief. The defendant's position on appeal is that he needs an evidentiary hearing to develop evidence of systematic exclusion of blacks. But, the fact remains that he should have properly plead his charge in his 27.26 motion rather than try to remedy his pleading by innuendoes in his appellate brief.

It may appear inequitable to require this precision for pleadings in a pro se motion but our courts have continually done so on 27.26 motions. In Smith v. State, 513 S.W.2d 407 (Mo. Banc 1974), the Missouri Supreme Court held that a defendant's pro se 27.26 motion that he was denied effective assistance of counsel was insufficient to require an evidentiary hearing because "he (did) not allege what defenses were available," Smith v. State, supra, at 411. The court took this position despite a strong dissent that it was inequitable to require legal precision from a pro se motion, Smith v. State, supra. In Cloud v. State, 535 S.W.2d 577 (Mo.App.1976), the court rejected the movant's claim in a 27.26 motion that he was denied effective assistance of counsel because the movant failed to allege that he was prejudiced by the attorney's action. The court stated, "the ineptly worded pro se motion presents no reasoned legal position, and the factual determination makes it clear none can be...