Williamson v. State

• Decision Date: 11 August 1981
• Docket Number: No. WD,WD
• Citation: 628 S.W.2d 895
• Parties: William J. WILLIAMSON, Appellant, v. STATE of Missouri, Respondent. 32069.
• Court: Missouri Court of Appeals

Page 895

628 S.W.2d 895

William J. WILLIAMSON, Appellant, v. STATE of Missouri, Respondent.

No. WD 32069.

Missouri Court of Appeals, Western District.

Aug. 11, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 3, 1981.

Application to Transfer Denied Feb. 16, 1982.

Joe F. Willerth, Independence, for appellant; Cochran, Kramer, Kapke, Willerth & King, Independence, of counsel.

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

Before PRITCHARD, P. J., and TURNAGE and CLARK, JJ.

PRITCHARD, Presiding Judge.

In this Rule 27.26 proceedings, held in June, 1980, appellant, by five separate points, contends that his trial counsel was ineffective, requesting therefore that the sentence and judgment of conviction be set aside and that a new trial be awarded.

By the verdict of a jury on June 6, 1978, appellant was found guilty of murder in the second degree, and pursuant to the Second Offender Act, he was sentenced to 20 years imprisonment. The judgment was affirmed on appeal. State v. Williamson, 584 S.W.2d 628 (Mo.App.1979).

By Point I appellant says his trial counsel was ineffective because he failed to file a motion to quash the jury panel and appellant was thereby denied his constitutional right to be tried by a jury representative of a cross section of the community under Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). There were 10 women on the panel of 45 veniremen for appellant's trial, and one woman was selected for the jury trial. Appellant's then counsel had been practicing law for 8 years, with about 90% of his cases being criminal. He was then aware that the public defender's office was routinely filing motions to quash jury panels in Jackson County. He was also aware of State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), holding that the Missouri exemption for services of women on juries was not unconstitutional. For that reason, he believed that it would have been a "waste of paper" to file a motion to quash the panel, and he also believed that the United States Supreme Court would affirm the decision of the Supreme Court of Missouri. After the United States Supreme Court decision in Duren v. Missouri, supra, was handed down, appellant's counsel included the Duren issue in his direct appeal. It was, however, ruled against him, 584 S.W.2d 630(5), because there was no timely motion to quash the jury panel filed, citing Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979). The Lee case holds, page 462, 99 S.Ct. page 711, "We note that in any case in which a jury was sworn subsequent to Taylor v. Louisiana and the fair-cross-section claim based on exclusion of women was rejected on direct review or in state collateral proceedings because of the defendant's failure to assert the claim in timely fashion, relief is unavailable under 28 U.S.C. § 2254 unless the petitioner can show cause for having failed to raise his claim properly in the state courts."

This court could have considered the matter of the exemption of women from jury service in the direct appeal of State v. Williamson, supra, as plain error applied sua sponte under State v. Hawkins, 582 S.W.2d 333, 334(1) (Mo.App.1979), but the court did not do so, apparently because the issue was not requested to be reviewed as plain error, and there was no showing that there was cause for having failed to raise the claim properly in the trial court. Appellant here seeks to have his conviction set aside solely on the basis of ineffective assistance of counsel, and that asserted ineffectiveness is the sole issue. He does, however, argue that this court should now set aside the conviction upon a consideration and ruling on a basic Duren issue-lack of a fair-cross-section of the community upon the jury panel. That issue may not now be reached.

In the second issue of Benson v. State, 611 S.W.2d 538, 542 (Mo.App.1980), there was a consideration of whether there was incompetence of counsel for failing to file a motion to quash the jury panel. The standard of conduct for lawyers is set forth in Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979), " 'The accepted standard for effectiveness of trial counsel is now established as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances. (Citation omitted.) Furthermore, there is a presumption that counsel is competent (citation omitted), and the petitioner must shoulder a heavy burden to override this presumption. (Citations omitted.) Finally, the exercise of reasonable judgment, even when hindsight reveals a mistake in that judgment, does not render a lawyer negligent or lacking in competence in rendering his services.' " Here, as in the Benson case there is a claimed omission to raise the Duren issue. At page 545, the essence of the Benson holding on the claim of ineffective assistance of counsel is stated: "Nor does the effort to mount an attack upon the Jackson County jury selection system in Duren and Lee demonstrate that any reasonably competent lawyer should have undertaken the same effort, even if the means were at hand. The possibilities of success in that effort were truly speculative and it is obvious that many lawyers considered them futile. The ultimate vindication of the claim does not render incompetent those who did not believe that the effort would succeed and that is true whether the doubt was on factual or legal grounds." The Benson case controls the allegations here, and Point I is overruled.

In Point II, appellant claims his trial counsel was ineffective for failure to file a bill of particulars and timely to object to the amended information which failed to list the witnesses against him and failed to recite the statute number of the charged offense. As to the matter of a bill of particulars, appellant's counsel testified that he saw no reason to do so because he had complete access to the state's file and was well advised of the evidence. He knew of all the witnesses the state intended to call, and he thought, but did not remember, that the original information contained all the names of the state's witnesses. Where the indictment alleges the essential facts constituting the offense (and it is not here contended otherwise), it must be assumed that the defendant was sufficiently informed of the details to prepare his defense. State v. Donnell, 430 S.W.2d 297 (Mo.1968). The testimony of appellant's counsel shows he was advised of the evidence. There is no merit in the contention. As to the claim that the information did not set forth the statute number alleged to have been violated, State v. Harris, 598 S.W.2d 200, 202(1) (Mo.App.1980), holds that although now Rule 23.01(b) 4. requires that the indictment or information cited the section of the statute alleged to have been violated and the section fixing the...