*1
155
required
acceding
corruption
proof that
must
guilt, nor
the evidence demonstrate
to
impossibility of innocence. State v.
Wahby
a benefit
return
received
Franco,
legal
public
duty
known
violation of a
576.020.1(2),
1977).
RSMo 1986.
servant. §
re
to execute a warrant
crime
failure
evidence,
light,
Viewed
this
proof
Wahby
quired
acted with
circumstantial,
and
demonstrates
allowing
escape law
purpose of
Sutton to
case:
submissible
ful
RSMo 1986.
confinement. §
Wahby
public
capac-
in his
servant
Bowles,
v.
(Mo.App.
State
circumstances consistent acceding
guilt charge corrup-
tion, any and inconsistent with reasonable
theory of his innocence. B. Missouri, Respondent, STATE of The Fifth Amendment to the Unit
ed States Constitution “nor shall WHEAT, Larry Appellant. any person be for the same offense put jeopardy twice of life or to be limb.” No. 71170. Hunter, case, Missouri v. recent Missouri, Supreme Court of
459 U.S. S.Ct. L.Ed.2d En Banc. (1983), Supreme Court determined that legislature Aug. adopted has discrete defining legisla- statutes crimes that Sept. 8, Rehearing Denied separately punishable, ture intended be charges separate pro- tried one
ceeding irre- jury before the same court or charges
spective separate whether the each Hunter, pp.
contain identical elements.
365-369, pp. 677-679. S.Ct.
Nevertheless, join parties issue here question argue whether the crimes (Wahby) sep same
contain the elements (State). say
arate elements Suffice argument charge required each
proof required by of an element not
other, prosecution for both does jeopardy. double The crime of
constitute *2 Webster, Gen., Atty.
William L. Robert Franson, Atty. Gen., V. Asst. Jefferson City, respondent.
RENDLEN, Judge.
Wheat,
Larry
convicted of sexual abuse
degree,
and second
sen-
first
was
prior
years’
tenced as a
offender to five
year imprisonment, respectively,
and one
charged.
for the
offenses
His criminal
sisters,
molesting
aged
duct involved
two
thirteen,
eleven
who lived
a trailer
home a short distance from defendant.
They testified that
defendant entered
sleeping
bedroom
had
been
private parts,
though de-
fondled their
having
admitted
in the chil-
fendant
been
room,
watching
dren’s
he claimed he was
over them while their
father was work
night
employment.
girls
shift
Both
had
known
years.
Wheat
several
On
defendant
first com
plains
was
for hav
trial counsel
ineffective
who,
ing
deputy
called two
sheriffs
on di
examination,
rect
testified that
guilty
was
of other acts misconduct to
including
girls,
threatening
ward the
one of
them
a knife.
contends
Defendant
trial,
phase
in the initial
predicated
strategy
defense was
on a
showing
testimony
of the com
plaining witnesses was
because
unreliable
against
ex
inconsistencies
their
trajudicial
Though
statements.
some fa
elicited,
testimony
vorable
was
balance
testimony
somewhat
deputies’
says
hurtful. Defendant
he was ill-served
by
attorney’s performance
and for this
new trial.
reason alone should receive a
19, 1988,
January
defen-
Sentenced on
Supreme
Rule 29.-
dant
govern-
replaced prior Rule 27.26
which
proceedings.
such
relief
bar,
features
dispositive
the case at
following:
include the
rule
person
felonyf,]
A
convicted
claiming
trial[,]
the conviction
imposed
constitu-
sentence
violates the
tion
of this
the consti-
and laws
state or
may seek
tution of the United States ...
pursuant
relief in
court
Columbia,
Hogan,
for appellant.
provisions
L.
of this Rule 29.15.
Susan
29.15(a). Further,
portions
pro-
doing
of the well-
the subsection
so
draw
Judge
opinion of
Clark.
specificity
vides with
Rule 29.15 reasoned
“[t]his
procedure
the exclusive
failed to
Defendant concedes
he has
person
such
seek relief in the sentenc-
trial court
file motion to vacate
(em-
ing court for the claims enumerated
recognizes
he
added).”
phasis
argues,
nominal
this failure. He
effect of
*3
however,
appellate
Rule
under old
27.26
provided
It
is also
with unmistakable
in
of direct
courts had consented
cases
if
clarity
appealed,
a
a
conviction
to
of
appeal
review
claims
the
motion under
rule shall be filed within
of
trial counsel
ineffective assistance
thirty days
filing
transcript
of the
trial
where a
in the
court
suffi
record
was
appeal:
review,
permit appellate
citing,
cient to
person seeking
pursuant
A
relief
to this
Settle,
(Mo.
example,
v.
S.W.2d
State
Rule 29.15
to
shall
a motion
vacate
file
App.1984),
in which
as
a case
ineffective
judgment
substantially
the
in the
...
...
sistance
counsel was
on direct
of
reviewed
form of Criminal Procedure Form 40.
sought
of
appeal
judgment
an
the
to be
27.26,
The former Rule
effect when
in
taken,
...
motion
vacated
was
the
shall
decided,1
and similar cases were
was
Settle
thirty days
filing
within
after the
befiled
markedly
partic-
from
different
Rule
transcript
pursuant
appeal
ularly
the lack of time constraints for
appeal
judg-
to Rule 30.04. If no
of such
filing
raising
By
the motion to vacate.
taken,
ment was
motion
the
shall be
of
claim ineffective assistance of counsel
ninety days of the
within
date
filed
for the
on direct
a defen-
first time
custody
person is delivered to the
quite
dant
to Rule 27.26
a dif-
ran
department of corrections.
waiving
right
ferent risk
his
to
ultimate
29.15(b)
added).
(emphasis
This sub-
present
appellate
The
his
court too
claim.
following mandatory
ends with
section
quite
question
faced
a different
when de-
condition:
termining
the claim should be con-
whether
file
Failure to
a motion within the time
typical-
sidered on direct
The court
provided by this Rule 29.15 shall consti-
ly
if the
ade-
would determine
record was
complete
any right
tute a
waiver
quate
require
or whether to
the defendant
proceed under this Rule 29.15.
to return
the trial court
a motion
added.)
(Emphasis
dispute
There is no
opportunity
and the
evi-
further
though
appellant,
by
cautioned
the trial
sig-
options
by
are replaced
dence. Those
postcon-
judge
availability
as to the
nificantly
procedures
new
different
proceeding,
viction
the time
allowed
to ex-
postconviction proceedings.
standards for
pire and has not filed a motion under Rule
explicit language
Under
of the new
Hence,
29.15.
reasons
discussed
rule,
the scheme fashioned there
”
right
herein the
claim of
to raise the
inef-
per-
procedure
by
which a
“exclusive
fective assistance
counsel
29.15
of trial
court,
may
son
relief
seek
proceeding was waived.
above,
file such
and as noted
failure to
complete
was taken to the Missouri motion constitutes a
waiver of
District,
Appeals,
right.
only
given
are
clear
Western
Not
defendants
rule,
granted
procedures by
was affirmed. We
notice
these
personally
here
cautioned
transfer
determine the extent which
if
consequences
may
judge
claim
as to
such
be determined
light
right.
From this
repeal
preserve
of former
he failed to
for relief
adoption
necessarily
27.26 and the
of new Rule 29.15.
it
follows
Determining
original
cognizable
the rule
not be
ap-
cause as on
Const,
10,
time
V,
presented for the first
peal, Mo.
art.
we affirm and sidered when
§
Turner,
1979);
E.g.,
Phillips, (Mo.
State v.
State
v.
623 S.W.2d
11 n. 9
banc
Lumsden,
(Mo.1970).
State
S.W.2d
appeal;
proposition
unique
from
flows
832. Mindful of the trial court’s
plain language of Rule 29.15.
opportunity
Defendant’s
to observe the venireman dur
dire,
contention is denied.
appellate
court will not
voir
ruling
challenge
disturb a
on a
for cause
next
qualifica-
centers on the
unless it constitutes a clear abuse of discre
tions
of venireman Kaver.
the course of
probability
injury
tion and a real
to the
dire,
voir
Kaver stated that he was em-
Hill,
complaining party.
ployed by
Department
the Missouri
of Cor-
see also
(Mo.App.1986);
S.W.2d
nearly twenty years
rections and for
Lingar, at 733.
positions
served
various
as a correctional
officer,
assistant, counselor,
classification
The record of
re
venireman Kaver’s
manager.
caseworker and unit
He ex-
sponses
questioning
demonstrates no
pressed
serving
juror
concern about
equivocation. He stated that he would
convicted,
because if the defendant were
it
problems deciding
have no
the case or
*4
possible
might
that he
be confined in following the court’s instructions and he
assigned
an institution where Kaver was
juror
could
as a
im
act
with fairness and
work,
might present
an unfortunate
partiality.
responses
no
created
need
possible
confrontation and
brouhaha
his
in
independent
for the court to initiate
employment.
apprehensive
He was
about
Moreover,
quiry,
suggests.
defendant
possibility
if
such encounter
he
presents
the unusual situation here
no real
jury
served on a
which convicted defendant
probability
any prejudice
to defendant.
supervisional
and later found himself with
disposed
any
Kaver were
to have
hesi
responsibility over defendant in a state in-
case,
tancy
in the
about
result
notwith
questioned
stitution. When
about his abili-
otherwise,
standing his
in
declarations
his
ty
jury
to sit on the
and
the case
decide
clination based on self interest would have
facts,
fairly
impartially
and
based on the
acquit
thereby
facing
been to
and
avoid
answered,
Kaver
“I am sure I could.” De-
appellant in a state institution. As the trial
challenged
fendant first
Kaver for cause
overruling
court did not err in
the chal
peremptory
and later exercised a
strike to
lenge
Kaver,
point
to venireman
is de
excuse this venireman.
nied.
A criminal defendant is entitled to
Affirmed.
panel
qualified jurors
a full
he is
before
required
expend
peremptory
chal WELLIVER, ROBERTSON,
lenges;
legitimate request
denial
JJ.,
DOWD,
HIGGINS, BILLINGS,
partial
excuse
prejudiced
for cause a
or
Special Judge, concur.
venireman constitutes
reversible error.
BLACKMAR, C.J.,
dissents
Johnson,
62,
(Mo.
State v.
65
separate opinion filed.
1986).
qualify
juror,
To
banc
upon
venireman must be able to enter
COVINGTON, J.,
sitting.
not
mind,
open
service with an
free from bias
BLACKMAR,
Justice,
Chief
Hendrix,
State v.
prejudice.
646
dissenting.
(Mo.App.1982).
S.W.2d
832
Determi
potential
adoption of
juror’s qualifications
nation of a
Our case law
to the
remains within the broad discretion
Rule
claims of ineffec-
29.15 would allow
presented
trial court after consideration of
counsel to be
relevant
tive assistance of
Lingar,
State v.
entirety.
appeal
voir dire
its
on
from the
of conviction
(Mo.
1987),
cert.
disposed
if
of on the
S.W.2d
banc
these claims could be
206, 98
denied,
appeal.
on
An illustrative case is
108 S.Ct.
record
U.'S.
(1987); Johnson,
(Mo.
Harvey,
State v.
L.Ed.2d 157
tion of but were Missouri, Respondent, STATE of preclude procedures other not intended to which, past practice, were not barred Gary Leonard to 27.26. There should by failure to resort WEATHERSPOON, Appellant. study operation of these rules in be careful see some amendment be whether WEATHERSPOON, Gary Leonard necessary. Movant-Appellant, provide courts do a fo- the state determination of rum for the Missouri, Respondent. STATE of claims, will, proceed- courts the federal U;S.C. Nos. 55844. ings under 28 Sec. 2254. The basic I responsibility state. do not Appeals, Missouri Court of sovereignty of another want the courts District, Eastern procedural determinations make factual Division One. responsibility should of our which be May 1989. courts. Rehearing Transfer Motion for and/or problem case is not July Denied Supreme Court hearing rather denial of review want apparently properly presented of a claim Application to Transfer Denied I should believe that Sept. rule the It is the kind of claim claim. merits, could ruled on the because on the assertion that the defen-
it is based
dant’s counsel called a who was witness
possession of some information which was to the defendant but also of
beneficial information, damaging
some and then al-
lowed that witness and another witness damag-
testify to irrelevant and immaterial
ing making objections. matters without required to
No further record would be
rule this claim and to decide whether coun- unconstitutionally
sel ineffective. The require analysis
decision would
entire record to determine whether the substantially prejudicial,
omissions were
considering strength prosecu- magnitude and the of counsel’s
tion’s case
mistake. Because the Court does not make I shall refrain from do-
this determination so, leaving the defendant to such other might as he his counsel de-
remedies
vise.
The defendant’s Point II should be ruled
on the merits.