The opinion
MAUS, Judge,
dissenting.
I dissent. I do so for two reasons. First, I do not believe the movant has shown “a reasonable probability” that but for the error of counsel the result of his trial would have been different as required by Strickland. Second, I believe that the movant waived the right to assert ineffective assistance of counsel by reason of that error.
The applicability of the principles upon which each of these reasons is based depends upon the extent of the infringement of the constitutional right involved. The failure of counsel to challenge juror Cates for cause is the infringement involved. That failure must be considered in context. For example, in the opening of the voir dire the trial court described the case and posed the following question to the panel with the following result:
THE COURT: Now, is there any of you that because of the nature of the case feel that you couldn’t be fair and impartial?
(No one responds).
Thereafter, the prosecuting attorney emphasized the importance of a fair and impartial jury. Defense counsel then posed the following question with the following result:
Is there anyone else who perhaps feels the same way that they could not give my client a fair trial because of the nature of the charges against him?
(No one responds).
MR. SEIGEL: I take it by your silence everyone else, then, could give him a fair trial.
Thereafter were the questions asked and answers given that are quoted in the majority opinion. After the jury and an alternate were selected, the instructions they were given concerning their duties included the following: “Faithful performance by you of your duties as jurors is vital to the administration of justice. You should perform your duties without prejudice or fear, and solely from a fair and impartial consideration of the whole case.” MAI-CR 2d 2.01.
Under these circumstances, I do not believe the presence on the jury of one member who said he’d “be a little partial” against the movant to be tantamount to the total denial of the right to trial by jury. As hereafter developed, I do not believe Cates’ presence establishes an infringement so egregious as to obviate movant’s burden under the second prong of Strickland. Also, as hereafter developed, I do not believe failure to challenge juror Cates was such a fundamental infringement as to nullify the contemporaneous objection rule. The relationship between the two doctrines is discussed in Strickland, 466 U.S. at 697, 104 S.Ct. at 2070, 80 L.Ed.2d at 700.
The motion court granted relief because it found counsel’s error to be ineffective assistance of counsel contrary to the Sixth Amendment. It made no express finding concerning the requirement of prejudice as defined in Strickland. The majority opinion holds that the error per se entitles the movant to a vacation of his sentences without an examination of prejudice under the second prong of Strickland.
Strickland does recognize that an infringement upon the right to counsel may be so grave as to create a presumption of prejudice. It cites the “[ajctual or constructive denial of the assistance of counsel altogether” and counsel burdened with an actual conflict of interest. Id., 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. The exception has been discussed as follows:
Notwithstanding this general standard, a defendant who demonstrates a complete denial of any assistance of counsel need not satisfy the second prong of the inquiry. Denial of the assistance of counsel may occur when an attorney is present but refuses to assume the role of *610 advocate, as well as when there is no appointment of counsel. See Javor v. United States, 724 F.2d 831 (9th Cir.1984). ‘Prejudice in these circumstances is so likely that case by case inquiry into prejudice is not worth the cost.’ Strickland, 104 S.Ct. at 2067.
State v. Harvey, 692 S.W.2d 290, 292 (Mo. banc 1985). However, the general scope of the requirement of prejudice is expressed in the following language:
Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an effect on the defense.
Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697.
The absence of prejudice as required by Strickland has been held to be decisive in innumerable cases. The cases include errors of counsel in the following respects. Failure to request an instruction on accomplice testimony. Krist v. Foltz, 804 F.2d 944 (6th Cir.1986). Failure to object to improper argument. Estes v. State, 111 Idaho 430 , 725 P.2d 135 (1986). Outrageous behavior of counsel. Ward v. State, 461 So.2d 724 (Miss.1984). Failure to object to improper evidence and argument. State v. Stirrup, 469 So.2d 845 (Fla.App. 3 Dist.1985). Failure to present exculpatory evidence. Orsini v. State, 287 Ark. 456 , 701 S.W.2d 114 (1985); Estes v. State, supra. Disruptive conduct resulting in counsel being held in contempt. Rogers v. State, 721 P.2d 805 (Okla.Crim.App.1986). It is also held the failure to make an objection, which if overruled, would result in reversible error does not per se establish ineffective assistance. State v. Stirrup, supra.
The factor emphasized in the majority of such cases has been the possible decisive effect of the error when measured by the strength of the state’s case. Krist v. Foltz, supra; McAdoo v. United States, 515 A.2d 412 (D.C.App.1986); State v. Harper, 218 Neb. 870 , 359 N.W.2d 806 (1984). Such consideration has been expressed in a syntax of which the following are typical. “This overwhelming evidence of guilt makes the determination by the jury in this case thoroughly reliable. Accordingly, the errors of trial counsel — and they were many — were not so serious as to deprive Ward of a fair trial, a trial whose result is reliable.” Ward v. State, supra, at 727. “Even if a successful motion for mistrial had been made, there is a reasonable probability that the outcome of a new trial would not have been any different in light of the overwhelming weight of the evidence.” State v. Stirrup, supra, at 848 .
The record affirmatively demonstrates, in light of the overwhelming evidence presented by the State, that even if counsel had acted ineffectively, Micko has not offered proof establishing a reasonable probability that the outcome of his trial would have been any different or that the factfinder would have had a reasonable doubt over his guilt.
State v. Micko, 393 N.W.2d 741, 747-748 (N.D.1986). “When we consider the entire record of defendant’s trial, we cannot say that defense counsel’s failure to object to prosecutorial remarks or to tender preferred jury instructions so prejudiced defendant that the outcome of the case would have been different had trial counsel been more thorough in these instances.” People v. Jones, 148 Ill.App.3d .345, 101 Ill.Dec. 922, 928 , 499 N.E.2d 510, 516 (1986).
No case has been cited or found analyzing in detail an error of counsel resulting in the selection of a juror such as Cates. However, in Parker v. State, 693 S.W.2d 640 (Tex.App. 9 Dist.1985), a juror said she thought the defendant should take the stand. In holding counsel’s failure to challenge that juror did not result in reversible ineffective assistance of counsel, the court said: “Appellant has not shown — with Wil- *611 liford struck — that the result of the proceeding would have been different.” Id. at 643 . State v. Hochstein, 216 Neb. 515 , 344 N.W.2d 469 (1984) is a similar case.
Obviously, the possible decisive effect of the presence of a partial juror must be measured with utmost caution. The bias of a juror may range from “a little partial” to an obdurate determination to vote guilty in spite of strong evidence to the contrary.
The failure of counsel to object to improper evidence or argument unfavorable to a defendant to some degree causes a jury to be partial against a defendant. The same is true of failure to produce admissible evidence favorable to a defendant. The influence of such an error against a defendant ranges from slight to devastating. Such an error can have a more profound effect than the presence of a juror who is a little partial. Yet, such professional errors are consistently held to provide a basis for relief only when they are found to result in prejudice to a defendant within the meaning of Strickland. The same requirement should he applicable when the error of counsel permitted one to serve as a juror who was a little partial against the movant.
The following is the basic requirement to establish prejudice: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
Strickland also declares the standards to be followed in determining the existence of such prejudice include the following: “The assessment of prejudice should proceed on the assumption that the decision-maker is reasonably, conscientiously, and impartially applying the standards that govern the decision.” Id., 466 U.S. at 695, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. “[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id., 466 U.S. at 695, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. “In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Id.
The context of Cates’ answer has been noted. It establishes his sincerity. The transcript of the evidence resulting in the movant’s convictions has been reviewed. It is sufficient to observe the evidence of his guilt is overwhelming. He does not contend otherwise. I find it impossible to believe a decisionmaker, reasonably conscientious, impartially following the instructions of the trial court, would have a reasonable doubt concerning the movant’s guilt or assess less severe punishment than the jury in question. As stated, I would deny relief because the movant did not show a reasonable probability that but for counsel’s error the result of his trial would have been different.
Furthermore, I do not believe the movant has the right to complain of the presence of Cates upon the jury. The total surrender or waiver of the right of trial by jury is generally considered to be so fundamental that it is effective only when the result of a deliberate bypass or an express waiver, that is an intentional abandonment of a known right as enunciated in Fay v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963). See Rule 27.01. However, it is generally held that the right to complain of the qualifications of a juror is preserved only when an objection is made as required by the contemporaneous objection rule. In the absence of a contemporaneous objection, such a complaint will be heard only upon a showing of cause for noncompliance and of actual prejudice resulting from a constitutional violation as delineated in Francis v. Henderson, 425 U.S. 536 , 96 S.Ct. 1708 , 48 L.Ed.2d 149 (1976).
In Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977), a petitioner sought relief because of the admission of inculpatory statements allegedly made in the absence of an adequate Miranda warning without holding a preadmission hearing required by Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 , 1 A.L.R.3d 1205 (1964). The court based the *612 rejection of that contention upon the absence of a contemporaneous objection and the following reasoning:
We believe the adoption of the Francis [v. Henderson, 425 U.S. 536 , 48 L.Ed.2d 149 , 96 S.Ct. 1708 (1976)] rule in this situation will have the salutary effect of making the state trial on the merits the ‘main event’, so to speak, rather than a ‘tryout on the road’ for what will later be the determinative federal habeas hearing. There is nothing in the Constitution or in the language of § 2254 which requires that the state trial on the issue of guilt or innocence be devoted largely to the testimony of fact witnesses directed to the elements of the state crime, while only later will there occur in a federal habeas hearing a full airing of the federal constitutional claims which were not raised in the state proceedings. If a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right there is every reason for his following state procedure in making known his objection.
Wainwright v. Sykes, supra, 433 U.S. at 90 , 97 S.Ct. at 2508 , 53 L.Ed.2d at 610 . Also see Engle v. Isaac, 456 U.S. 107 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661 , 91 L.Ed.2d 434 (1986).
Cases holding the contemporaneous objection rule applicable to the disqualification of a juror include the following. Lollar v. State, 422 So.2d 809 (Ala.Crim.App.1982); State v. Bravo, 131 Ariz. 168 , 639 P.2d 358 (Ariz.App.1981); Buck v. State, 151 Ga.App. 252 , 259 S.E.2d 493 (1979); Bias v. State, 561 P.2d 523 (Okla.Crim.App.1977), cert. denied, 434 U.S. 940 , 98 S.Ct. 432 , 54 L.Ed.2d 300 (1977).
The rule has been held applicable not only to an objection based upon known facts but also upon those discoverable with due diligence during voir dire. Robinson v. Monsanto Co., 758 F.2d 331 (8th Cir.1985); Beasley v. State, 337 So.2d 80 (Ala.Crim.App.1976); Vaughn v. State, 173 Ga.App. 716 , 327 S.E.2d 747 (1985); State v. Chattley, 390 A.2d 472 (Me.1978); Commonwealth v. Fudge, 20 Mass.App. 382 , 481 N.E.2d 199 (1985); Smith v. State, 651 P.2d 1067 (Okla.Crim.App.1982); Southern Welding Works, Inc. v. K & S Const. Co., 286 S.C. 158 , 332 S.E.2d 102 (1985). The general rule has been stated:
Although ‘the guaranty of trial by jury insures to a defendant in a criminal case the right to have the facts in controversy determined by twelve impartial jurors [citation] ... this rule does not relieve a defendant of his duty to ascertain whether impartiality exists.’ (People v. Ward (1965), 32 Ill.2d 253, 258-59 , 204 N.E.2d 741, 744 , cert. denied (1966), 384 U.S. 1022 , 86 S.Ct. 1947 , 16 L.Ed.2d 1026 .)
People v. Escobedo, 151 Ill.App.3d 69 , 104 Ill.Dec. 603, 615 , 502 N.E.2d 1263, 1275 (1986). The general rule 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 ineffective assistance of counsel, as held in the majority opinion. Indeed, ineffective assistance of counsel may constitute the cause for a procedural default within the meaning of Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986) and Francis v. Henderson, supra. A concern about counsel’s failure to challenge a partial juror has been expressed in the following language. “If this is developed on voir dire an aggressive attorney for any defendant could then fail to challenge and probably the State would not challenge nor would the judge, sua sponte, challenge or remove the venire-person. Hence, built-in reversible error would have been calculated and invited by the defendant’s attorney.” Parker v. State, supra, 693 S.W.2d at 642 .
In some circumstances the spirit of the contemporaneous objection rule imposes a duty upon a defendant to personally voice an objection upon the basis of facts known to him. Illustrative cases include the following. In People v. Escobedo, supra, a juror was excused upon a peremptory challenge by the defendant. Nevertheless, that *613 person served on the jury and was elected foreperson. On appeal the defendant contended that irregularity vitiated his conviction. The state contended the defendant waived the same by failing to raise the objection before the trial court. The court rejected the defendant’s contention.
After consideration of the jurisprudence of this State and other jurisdictions, we conclude that the defendant had a duty to ascertain whether the jury as impaneled was properly selected and to advise the trial court of any infirmity in the jury as sworn at the earliest opportunity. Regardless of whether the challenged prospective juror remained with the selected jurors during the court’s voir dire of remaining venire and was therefore visible for defense to recognize, there is nothing in the record which indicates that defendant or his attorney was prevented from viewing Mrs. Anderson as she participated in the jury’s hearing of the evidence at trial. Indeed, before the jury’s verdict was announced, Mrs. Anderson advised the trial court that one of the verdict forms had been mistakenly signed. Under the circumstances of this case, we determine that defendant waived review of this issue by neglecting to recognize and call to the court’s attention the fact that a prospective juror whom defendant had peremptorily challenged was in fact in service upon the jury.
People v. Escobedo, supra, 104 Ill.Dec. 615 , 502 N.E.2d at 1275 (emphasis added).
In Spencer v. Hopper, 243 Ga. 532 , 255 S.E.2d 1 (1979), a defendant by a pro se motion challenged the array of jurors. The motion was not then passed upon. Upon the completion of voir dire, defense counsel informed the court he would not insist upon the motion. In a habeas corpus proceeding the court refused to consider the defendant’s challenge.
However, Spencer argues that since his motion was filed pro se, it could not be waived absent the trial judge questioning the defendant directly as to his wishes in this matter. But this overlooks the rule that whether or not to proceed with such a motion is a decision of trial tactics in counsel’s hands. See Reid v. State, 235 Ga. 378, 379 , 219 S.E.2d 740 (1975). Defense counsel refused to allow the district attorney to direct the question to the defendant personally and although the defendant had spoken out previously, he evidenced no objection to his attorney’s refusal to pursue the motion at that time. It would appear that the defendant and his attorney were satisfied with the jury which had been selected, at least with the panels as composed prior to striking.
Id. at 3-4 (emphasis added).
In State v. Chattley, supra, a defendant had knowledge of a confrontation with a juror which was not disclosed upon voir dire. On appeal the defendant’s objection to the court’s failure to strike that juror was rejected. “It is beyond dispute that at the time of the voir dire defendant Chattley had knowledge of the altercation in which he had himself participated with Mr. Ha-mor. His failure to raise the objection at that time precludes his raising it at a later date.” Id. at 477 .
In Lollar v. State, supra, the defendant had personal knowledge of a juror being arrested for a drug offense. This fact was not revealed during voir dire. The defendant first told his attorney after the jury returned a guilty verdict. The defendant’s point on appeal based upon the disqualification of this juror was rejected. “[T]he defendant possessed specific information which conflicted with Ms. Keith’s failure to respond and which demanded, upon the exercise of reasonable and due diligence, further inquiry. The diligence required to prevent a waiver must be exercised by defense counsel and the defendant.” Id., 422 So. 2d at 812 (emphasis added).
The duty of a defendant to object to the qualifications of a juror is similar to the duty of a defendant to object to misconduct by a juror.
It is well-established that where misconduct of jurors is first presented in the motion for new trial, an affirmative showing must be made that both defendant and his attorney were ignorant of *614 the misconduct until after the trial. State v. Turley, 452 S.W.2d 65, 69 (Mo.1970); State v. Reeder, 394 S.W.2d 355, 357 (Mo.1965); State v. Flinn, 96 S.W.2d 506 , 513 (Mo.1936); State v. McGee, 336 Mo. 1082, 1093 , 83 S.W.2d 98, 104-05 (1935); State v. Gilmore, 336 Mo. 784, 789 , 81 S.W.2d 431, 433 (1935); State v. McVey, 66 S.W.2d 857 , 859 (Mo.1933); State v. Palmer, 581 S.W.2d 952, 953 (Mo.App.1979); State v. Bollinger, 560 S.W.2d 606, 608 (Mo.App.1978); State v. Warren, 469 S.W.2d 662, 663 (Mo.App.1971). The reason for the rule is that a defendant is not entitled to wait until the verdict is in, gambling on a favorable verdict, then seek a new trial if a verdict of guilty is returned.
State v. Brown, 599 S.W.2d 498, 502 (Mo. banc 1980), cert. denied, 449 U.S. 985 , 101 S.Ct. 402 , 66 L.Ed.2d 247 (1980) (emphasis added).
Other cases also recognize that when a defendant is aware of a decision made by his counsel, the defendant may waive his right to complain by acquiescence in that decision. “The trial court gave defendant’s attorney a clear chance to act in his capacity as spokesman for defendant and the person in charge of defendant’s case. Defense counsel made a trial strategy decision and moved on it without any apparent protest from defendant.” State v. Fitzpatrick, 676 S.W.2d 831, 836 (Mo. banc 1984). “Since we hold that petitioner neither personally waived his right nor acquiesced in his lawyer’s attempted waiver, the judgment of the Supreme Court of Ohio must be and is reversed....” Brookhart v. Janis, 384 U.S. 1, 8 , 86 S.Ct. 1245, 1249 , 16 L.Ed.2d 314, 319 (1966) (emphasis added). In Estelle v. Williams, 425 U.S. 501 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (1976), a defendant’s failure to object to appearing in prison garb was held to bar a subsequent assertion of error on that basis. “A defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.” Hernandez v. Beto, 443 F.2d 634, 637 (5th Cir.1971), cert. denied, 404 U.S. 897 , 92 S.Ct. 201 , 30 L.Ed.2d 174 (1971). Also see Murch v. Mottram, 409 U.S. 41 , 93 S.Ct. 71 , 34 L.Ed.2d 194 (1972), in which a defendant was bound by his counsel’s decision not to assert a basis for relief in a post-conviction proceeding, In so holding the court had the following observation:
Concededly, Mottram testified at the hearing in the District Court that he did not intend to waive his constitutional attacks on the underlying 1960 convictions. But if a subjective determination not to waive or to abandon a claim were sufficient to preclude a finding of a deliberate bypass of orderly state procedures, constitutionally valid procedural requirements, such as those contained in the Maine statute requiring the joining of all bases for attack in one proceeding, would be utterly meaningless.
Murch v. Mottram, supra, 409 U.S. at 46 , 93 S.Ct. at 74 , 34 L.Ed.2d at 199 .
In the underlying case the movant was in the courtroom throughout his trial. The record demonstrates he was aware of the response of juror Cates and its significance. In view of counsel’s misconception, the movant’s position was that of a defendant with personal knowledge of a juror’s infirmity or misconduct when his counsel had no such knowledge. With his knowledge and appreciation of the significance of Cates’ response, the movant was under a personal obligation to exercise due diligence to voice an objection to the qualifications of juror Cates. A defendant with such knowledge and appreciation should not be permitted to “sand bag” the finality of a trial by first voicing an objection after a verdict of guilty. “To permit such a challenge to be pursued now would simply mean that no one would make a jury challenge until after they were convicted and that conviction was affirmed on appeal.” Spencer v. Hopper, supra, 255 S.E.2d at 4 .
If the movant did not voice an objection to Cates’ continued presence to counsel, he failed to exercise due diligence. Movant testified that in open court he voiced such an objection to counsel and counsel refused to pursue it. The transcript of the trial proceeding conclusively rebuts this assertion. Moreover, that record establishes the movant, with knowledge and appreciation *615 of the same, acquiesced in counsel’s actions. His subjective intent cannot now refute that acquiescence. The movant’s failure barred consideration of the disqualification of juror Cates on direct appeal. That being so, movant cannot now inject vitality into an unexpressed objection under a charge of ineffective assistance of counsel.
I have examined the points raised by movant in his cross-appeal. As did the motion court, I find no merit in them. I would reverse the judgment of the trial court and enter judgment denying mov-ant’s motion under Rule 27.26.