Willis v. State

• Decision Date: 11 February 1982
• Docket Number: No. 12229,12229
• Citation: 630 S.W.2d 229
• Parties: John Wilton WILLIS, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 229

630 S.W.2d 229

John Wilton WILLIS, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 12229.

Missouri Court of Appeals, Southern District, Division One.

February 11, 1982.

Motion for Rehearing and to Transfer to Supreme Court

Overruled March 4, 1982.

Application to Transfer Denied April 13, 1982.

Susanna Jones, Legal Aid, Joplin, for movant-appellant.

John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

GREENE, Presiding Judge.

Movant, John Wilton Willis, was jury-tried and convicted of one count of forcible rape and two counts of robbery in the first degree. The trial court sentenced Willis to 40 years' imprisonment on the rape charge and 30 years' on each count of robbery, with the sentences to run consecutively under authority granted by the Second Offender Act. The convictions were upheld on appeal. State v. Willis, 577 S.W.2d 655 (Mo.App.1979). Willis was imprisoned and later filed a motion to vacate the judgments and sentences in question, as authorized by Rule 27.26. ¹ The state filed a motion to dismiss the proceeding. The trial court made findings of fact and conclusions of law, and sustained the state's motion to dismiss.

Willis then filed an amended 27.26 motion. Allegations in the amended motion were basically the same as those raised on the original motion. The state again filed a motion to dismiss, after which the trial court made new findings of fact and conclusions of law that were substantially the same as the original findings and conclusions, and denied the amended motion to vacate without holding an evidentiary hearing. This appeal followed.

Although the sufficiency of the evidence to sustain the convictions is not in issue on this appeal, a brief statement of facts is necessary to clearly identify and decide the points of claimed error. In the early morning hours of April 4, 1977, two security guards from Southwest Missouri State University in Springfield, Missouri, noticed a black male "window peeping" at Wells House, a dormitory on campus. They accosted him and asked for his name and address, and inquired as to what he was doing. He gave them what turned out to be a false name and address. They were not satisfied with his answers to their questions and asked him to leave the area. He did so.

The guards kept the man under surveillance and followed him to the vicinity of a nearby house where they lost sight of him. The guards then called the Springfield Police Department and reported the incident. Shortly thereafter, a black male unlawfully entered the house at the location where the security guards had last seen the prowler, raped a young woman who resided there, and took money from two other female residents, all by means of threats of deadly force. The intruder was armed with a knife which he kept at the throat of the rape victim during the rape and robberies. All of the crime victims were white.

The three girls called the police and reported the rape-robberies. Police came to the crime scene, and were joined there by the security guards. The girls gave the police a description of the man who had committed the rape and robberies, and the security guards gave them a description of the man they had seen near the girls' home, as well as the name and address the man had given when they had interrogated him. One of the police officers realized the description matched that of Willis, and knew where he lived. Police officers then went to movant's home and arrested him. They did not have an arrest or search warrant. Willis was clad in a pair of pants when the officers entered. The officers told him to put on a shirt, which he did, and the officers took Willis to jail.

The next morning, movant's shirt and pants were taken from him and analyzed for possible evidence. Hair taken from the front of his shirt closely resembled hair taken from the rape victim's head, but was not positively identified as such. The hair samples were introduced in evidence at trial. All three girls identified Willis at trial as the man who raped and robbed them. The two security guards identified movant at trial as the man they had seen near the victims' home shortly before the crimes were committed. Shortly after the rape, the police obtained scrapings from underneath the victim's fingernails, and samples of her vaginal fluids. There was no evidence that the samples were ever scientifically analyzed or, if so, what the results were.

At trial, movant's alibi witnesses were his white, common-law wife, her sister, and a white male friend of his wife. Their testimony was to the effect that Willis was in his home at the time of the crimes. It is evident from the verdicts that the jury did not believe them. The jury of nine women and three men who convicted Willis were all white persons.

Movant relies here on three points of claimed error which were that the trial court erred in denying his 27.26 motions without evidentiary hearing because 1) "the failure to ask voir dire questions directed to racial bias resulted in movant's being denied a fair trial in violation of his rights under the Fifth, Sixth and Fourteenth Amendments of the U. S. Constitution", 2) "that the evidence seized from movant was inadmissible because of the arrest of movant in his own home without an arrest warrant and with no exigent circumstances", and 3) "evidence in the possession of the state which was not produced at trial would prove that movant could not have been the attacker of K__ K__ (the victim of the rape)."

This assemblage of conclusions and speculations violates the dictates of Rule 30.06(d) as none of the points state what actions or rulings of the trial court on the matters in question are sought to be reviewed, and wherein and why such actions and rulings were erroneous. State v. Mays, 598 S.W.2d 613, 616 (Mo.App.1980); Harmon v. State, 603 S.W.2d 85, 86 (Mo.App.1980). Points relied on which are written contrary to mandatory requirements of Rule 30.06(d), which cannot be comprehended without resorting to the transcript or other portions of the brief, preserve nothing for appellate review. State v. Holt, 603 S.W.2d 698, 701 (Mo.App.1980). Although not requested, we exercise our discretionary right to review under Rule 30.20 to determine if any plain error affecting movant's substantial rights occurred at the trial court level which resulted in manifest injustice or a miscarriage of justice.

In order for a 27.26 motion to warrant an evidentiary hearing, it must allege facts, not conclusions, which, if not refuted by the file and record in the case, show prejudice to the movant, which would entitle him to relief. Tollison v. State, 556 S.W.2d 455, 457 (Mo.App.1977). In this case, the trial court made extensive findings of fact and conclusions of law, as required by Rule 27.26(i), on the original and amended motions, and entered judgment denying relief on both motions. Our review is limited to a determination of whether the findings, conclusions and judgments of the trial court were clearly erroneous. Rule 27.26(j); Tomich v. State, 607 S.W.2d 811, 812 (Mo.App.1980). This test applies only to matters raised in the motions and thereafter briefed on appeal. Dixon v. State, 604 S.W.2d 782, 783 (Mo.App.1980).

While it is difficult to ascertain from a reading of the points relied on in this appeal exactly what movant is complaining about, we have determined that, on the lack of voir dire issue, he is contending that his trial counsel was ineffective by reason of his failure to interrogate the jury panel on possible racial bias. Willis claims that such questions were "constitutionally mandated", citing Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), and that the failure of his counsel, and of the trial court, to ask voir dire questions on the race issue was, per se prejudicial.

In its findings on this issue, the trial court stated that the original and amended 27.26 motions (hereinafter called motions) did not allege that the jury panel was prejudiced against Willis, did not allege that he had requested voir dire on the racial issue and had been refused, did not allege what the answers to racial based questions would have been, and did not allege how movant was prejudiced by a failure to ask such questions.

The trial court further found that since Willis did not allege facts showing prejudice to him on this issue, he was not entitled to any relief. The trial court, in its findings and conclusions, did not address the question as to whether racial based voir dire questions were constitutionally mandated under the facts of this case. Movant's reliance on Ham v. South Carolina, supra, on this issue, is misplaced. In Ham, a black man was tried for possession of marijuana in a South Carolina state court. He was well known in the locale of his trial as a civil rights activist. His defense was that law enforcement officers had framed him on the marijuana charge to get even with him for his civil rights activities. The trial court refused Ham's request to voir dire the jury on possible racial prejudice. The supreme court of the United States held that such refusal, under the facts presented there, constituted a denial of due process, and reversed Ham's conviction. Ham did not hold that racial based voir dire questions are constitutionally mandated in all cases.

Racial prejudice cannot be inferred from the fact that the defendant is of one race or ethnic origin while the victim, or the witness, or the jury, is of another. Absent facts showing prejudice, and no such facts are shown here, the question of whether the trial court, or movant's trial counsel, should have interrogated the jury panel as to possible racial bias does not rise to the level of constitutional dimensions. Ristaino v. Ross, 424 U.S. 589, 47 L.Ed.2d 258, 265, 96 S.Ct. 1017 (1976).

We have searched the record, and fail to find any fact showing that lack of voir dire on the race issue...