Petition — Wyrick v. Henson

jae. FIRED

|

80-1086 | mse

MICHAEL RODAK, J8., CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

- DONALD WYRICK, Warden,

Missouri State Penitentiary,

Petitioner,

V.

JOHN DALE HENSON,

Appellant.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JoHn ASHOROFT

Attorney General

Pavut Roserr Otro

Assistant Attorney General

Supreme Court Building

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

MicHarL ELBEIN

Assistant Attorney General

of Counsel

——— NN Ar mmm eer cee te

KELLY PRESS, INC., 201 S. Eighth St., Columbia, Missouri Dial 314/449-4163

QUESTIONS PRESENTED

1. Whether the respondent had contemporaneously ob-

jected in the state court to the jury panel on the ground

that the bystanders were chosen by the sheriff when the

respondent’s objection at trial was on other grounds and

the state appellate court, in affirming the respondent’s con-

viction, indicated that it could not rule on the question of

whom chose the bystanders because these was no evidence

in the record on which to make a decision on the merits?

2. Whether the Court of Appeals’ decision in Henson

v. Wyrick, No. 79-1808, that the respondent is entitled to a

new trial because the sheriff, who did not testify or in-

vestigate this case, chose the bystander vernireman pur-

suant to an order given under the authority of a state

statute (§ 494.250(2), RSMo), when the issue in the Dis-

trict Court and in the respondent’s appellate brief was

that the deputy sheriffs who testified against the respondent

chose the bystander veniremen, is in conflict with the estab-

lished rule that cnly those issues presented in the district

court can be raised on appeal?

3. Whether respondent is entitled to a new trial, with-

out a showing of actual prejudice, solely on the ground

that the sheriff’s choosing the bystanders, pursuant to

state statute, is inherently prejudicial?

4. Whether the Court of Appeals’ action, in remanding

this cause for a hearing, and deciding said cause, after

the hearing, without the magistrate who conducted the hear-

ing proposing Findings of Fact and Conclusions of Law,

and without an opinion by the district court, was apart

from the accepted and usual course of proceedings as re-

quired by Rule 8 fol. 28 U.S.C. § 2254?

5. Whether the Court of Appeals, in remanding this

cause for a hearing and placing the burden of proof upon

I

the petitioner, acted apart from the accepted and usual

course of proceedings, since 28 U.S.C. § 2254(d), Walker

v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed.2d

830 (1941); and Johnson v. Zerbst, 304 U.S. 458, 469, 58

S.Ct. 1019, 82 L.Ed. 1461 (1938), indicate that it is the

applicant for a petition for a writ of habeas corpus who

carries the burden of proof.

PARTIES

In the United States District Court for the Eastern

District of Missouri and the United States District Court of

Appeals for the Eighth Circuit, the parties were: John Dale

Henson, petitioner-appellant, and Donald W. Wyrick, Ward-

en, Missouri State Penitentiary, respondent-appellee.

Il

TABLE OF CONTENTS

PAGE

GT PUOMINE 6 iis c cc cece ne ce seduseeesscwaviaws I

NE ea ee kk Bad Rn one heeenneea sce eens ere |

ee I 5 6 65 6 one ekki s wn ec oapadan sates Ill

ER OE OUTED nhc Ksic vec cecncss ns ten@ehsoeseeeus V

PERE T ERT E TERETE PUTT COLT R TEETER OCCT 1

NN eo sk wy ha pk bw pT ROE Ee eS RO REh eee 2

Constitutional and Statutory Provisions Involved ........ 3

De SE obec sane re sd basco eekeusewess 5

eOents For CRM UO WE oo coe cece ctesvesscesves 8

Contemporaneous Objection ...........ecee eee eeeees 9

The Issue Decided on Appeal Was not the Issue

Presented to the District Court .................4. 11

No Showing of Actual Prejudice ...............0.. 12

No Requirements of Findings of Fact

gg Brrr eerrreereee reir ceeer 13

STEUER hep Nibts in kee cavensierredeereeeens 14

RE ea eel. Lae cherries seed eRe wpa wi 16

Appendices

A Order issued by the United States Court of Ap-

peals for the Highth Circuit in John Dale Hen-

son v. Donald Wyrick, Warden, Missouri State

Penitentiary, No. 79-1808 .........cecsccseeees A-1

Opinion issued by the United States Court of

Appeals for the Eighth Circuit in John Dale

Henson v. Donald Wyrick, Warden, Missouri

State Penitentiary, No. 79-1808 ............... A-3

IV

B Order issued by the United States District

Court for the Eastern District of Missouri,

Eastern Division, in the case of John Dale Hen-

son, etc., v. Donald Wyrick, Warden,

PO NEED eh SR iss ca Orensesh epee cinne. A-15

Magistrates Review and Recommendation, is-

sued by the United States District Court for the

Eastern District of Missouri, Eastern Division,

in the case of John Dale Henson, etc., v. Donald

Wyrick, No. 78-970 C (4) ........006- Cee 6 A-16

The Order issued by the United States District

Court for the Eastern District of Missouri,

Eastern Division, in the case of John Dale Hen-

son v. Donald Wyrick, Warden,

OM a Fee reer rer ree A-24

C The opinion issued by the Missouri Court of

Appeals, Springfield District, in the case of

State of Missouri v. John Dale Henson,

SPE CU ae Onehe bs haa head vee eee es A-25

The opinion of the Missouri Court of Appeals,

Southern District in the case of John Dale Hen-

son v. State of Missouri, No. 11004 .......... A-33

V

TABLE OF AUTHORITIES

Cases: PAGES

Harned v. Henderson, 588 F.2d 12 (2nd Cir. 1978) ...... 15

Henson v. State, 581 S.W.2d 595 (Mo.App. 1979) ...... 2,7

Henson v. Wyrick (8th Cir., Case No. 79-1808,

og Se errr err rere ue

Humes v. Robbins, 128 F.Supp. 586 (D.Me.

Aeeh ac od kv Sine dckeseaededealane 12, A-8, A-10

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82

EOD, 6 06% dons n00ccne ocdaeenene II, 15

Neil v. Biggers, 409 U.S. 188 93 S.Ct. 375, 34 L.Ed.2d

Es bcc 2 6dadas abet és neces ow eee eee 13

State v. Henson, 552 S.W.2d 378 (Mo.App., Spr.D.

BE Cec eek hae bv daes ee keke makes eee 7, A-5, A-33

State v. Eugene Holt, 592 S.W.2d 759 (Mo. bane

DE init ree sp eiadgtatenteeamenmaue 8, 12, 13, A-10

Umited States ex rel. Henne v. Fike, 563 F.2d 809

(7th Cir. 1977), cert. denied, 434 U.S. 1072, 98

S.Ct. 1257, 55 L.Ed.2d 776 (1978) .........ceeeeee 13

Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53

ie Pee nh dé lavankek sewers 9, 11, A-5

Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85

ey Te CEE Wku es Gane 0a Ke keeecus UNOeEEe TI, 15

Constitutional Provisions:

United States Const. amend. VI .............ecccseeees 3

United States Constit. amend. XIV .................... 3

Statutes:

Ss naw ad's eeus oe occa 7, A-1, A-19

EE, nr II, 15

§ 494.250(2), RSMo .............eeeeeee I, 8, 12, A-2, A-4

Rules:

SN EE, CP SPUD, © BOO oc ccc ec ccc eres ccvcces I, 13, 14

oda 5 ee hw eben ss00s essen ben deus 13

i bn sks spb oases ceases seusses 13

eer VAM ................ 7, A-16, A-17, A-33

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

DONALD WYRICK, Warden,

Missouri State Penitentiary,

Petitioner,

Vv.

JOHN DALE HENSON,

Appellant.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR CERTIORARI

The petitioner, Donald W. Wyrick, respectfully requests

that a writ of certiorari issue to review the Judgement of

the United States Court of Appeals for the Eighth Circuit

in this case.

OPINIONS BELOW

The Opinion and prior Order of the United States Court

of Appeals for the Eighth Circuit, as yet unreported, is

styled and numbered as follows: John Dale Henson, Appel-

lant,, v. Donald Wyrick, Warden, Missouri State Peni-

1Hereinafter referred to as: Respondent.

2Hereinafter referred to as: Petitioner.

7%

2

tentiary, Appellee,? No. 79-1808, in the United States ‘Court

of Appeals for the Eighth Circuit. The final Opinion of

the Court of Appeals is dated November 12, 1980. The

previous Order remanding this cause for a hearing is dated

April 29, 1980. Copies of the Opinion and Order are re-

printed as Appendix A.

The Orders of the United States District Court for the

Eastern District of Missouri in the case of John Dale Hen-

son, etc., Petitioner v. Donald Wyrick, Warden, Respondent,

Case No. 78-970 C (3), are not reported. The Review and

Recommendation of the United States Magistrate is dated

April 20, 1979. The Order of the United States District

Court for the Eastern District of Missouri, adopting said

Review and Recommendation, is dated September 6, 1979.

The Order of the United States District Court for the East-

ern District of Missouri, on remand from the United States

Court of Appeals for the Eighth Circuit, ordering that

the case be referred to the United States Magistrate, is

dated April 30, 1980. Copies of the Orders of the United

States District Court and of the United States Magistrate’s

Review and Recommendation are reprinted as Appendix B.

The direct appeal of the respondent to the Missouri

Court of Appeals, Springfield District, is reported at 552

S.W.2d 378 (Mo.App., Spr. D. 1977). The reported de-

cision on the petitioner’s appeal from the denial of his

state post-conviction motion, is entitled Henson v. State,

581 8.W.2d 595 (Mo.App., S.D. 1979). Copies of these opin-

ions are reprinted as Appendix C.

JURISDICTION

The final judgment of the United States Court of Ap-

peals for the Eighth Circuit was filed on November 12,

1980. Pursuant to a motion to stay, filed by the petitioner,

the Court of Appeals stayed its Mandate until January 2,

3

1981, and, if a petition for a writ of certiorari is filed by

that date, the Mandate will be stayed until disposition of

the case by this Court.

The present petition is filed within sixty (60) days

after the entry of Judgment in this case, and this Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

United States Constitution, Sixth Amendment, reads

as follows:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial by an impartial jury

of the state and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause -

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining wit-

nesses in his favor, and to have the assistance of counsel for

his defense.

United States Constitution, Fourteenth Amendment,

reads as follows:

Section 1. All persons born or naturalized in the

United States and subject to the jurisdiction thereof are

citizens of the United States and of the state wherein they

reside. No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States, nor shall any state deprive any person of life, liberty

or property without due process of law, nor deny to any

person within its jurisdiction the equal protection of the

laws.

Section 2. Representatives shall be apportioned among

the several states according to their respective numbers,

4

counting the whole number of persons in each state, exclud-

ing Indians not taxed. But when the right to vote at any

election for the choice of electors for President and Vice-

President of the United States, representatives in Congress,

the executive and judicial officers of a state, or the mem-

bers of the legislature thereof, is denied to any of the male

inhabitants of such state, being twenty-one years of age and

citizens of the United States, or in any way abridged, ex-

cept for participation in rebellion or other crime, the basis

of representation therein shall be reduced in the proportion

which the number of such male citizens shall bear to the

whole number of male citizens twenty-one years of age in

such state.

Section 3. No person shall be a senator or representa-

tive in Congress, or elector of President and Vice-President,

or hold any office, civil or military, under the United States

or under any state, who, having previously taken an oath

as a member of Congress, or as an officer of the United

States, or as a member of any state legislature, or as an

executive or judicial officer of any state, to support the

Constitution of the United States, shall have engaged in

insurrection or rebellion against the same, or given aid or

comfort to the enemies thereof. But Congress may, by a vote

of two-thirds of each house, remove such disability.

Section 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for pay-

ment of pensions and bounties for services in suppressing

insurrection or rebellion, shall not be questioned. But neither

the United States nor any state shall assume or pay any

debt or obligation incurred in aid of insurrection or rebellion

against the United States, or any claim for the loss or eman-

cipation of any slave, but all such debts, obligations and

claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce,

by appropriate legislation, the provisions of this article.

4)

Section 494.250, RSMo 1969, reads as follows:

494,250. Clerk to draw names—sheriff to summon jury,

when.—1. The clerk of the board of jury commissioners, so

situated as to be unable to see the names on the slips, shall

proceed publicly, in the presence of the board of jury com-

missioners, to draw out names separately and singly from

one township until he gets the number of names required

from such township for petit jurors and an equal number

as alternate jurors to serve on petit juries if summoned. In

the same manner he shall continue to draw names from each

of the remaining townships, separately and singly, until he

has drawn the names of twenty-four persons who shall serve

as petit jurors at the next ensuing term of court for which

petit jurors are drawn, and the names of twenty-four persons

to be designated as alternate petit jurors, the names of said

alternate petit jurors to be recorded and numbered con-

secutively from one to twenty-four, inclusive, in the order

in which they are drawn.

2. In all cases where the board of jury commissioners

fails to select jurors and alternates, as required by law,

the sheriff of the county shall summon petit jurors from

the several townships in the county, according to their re-

spective populations, as nearly as may be, not less than

ten days before the first day of the term of the court for

which the jurors are summoned; and the sheriff when or-

dered by the court demanding a jury shall summon petit

jurors during the term from the bystanders, after the list

of alternate petit jurors has been exhausted. No person shall

be summoned as a standing juror twice within the period

of one year in any court of record.

STATEMENT OF THE CASE

This petition is brought as a result of the United States

Court of Appeals for the Eighth Circuit’s Opinion holding

that the petitioner was entitled to a new trial or release

-%

6

e

from custody, because the manner in which the bystander

veniremen were chosen violated the due process clause and

the petitioner’s right to a trial by jury. The history of this

ease is as follows:

Respondent was convicted, after a trial by jury, of

murder in the second degree. Following voir dire, the re-

spondent’s counsel objected to the jury panel because it

allegedly did not comply with the statutory provisions for

selecting a jury, his specific grounds being that the special

judge then presiding had not been the judge who excused

some members of the regular panel, and that the regular

panel had not been fully exhausted before the bystanders

were chosen. After a pre-trial hearing at which the Cireuit

Clerk testified that the regular judge (who had been rescued

in the respondent’s case) had excused some members of the

regular panel for the entire term of court. The Special

Judge then excused four more members of the regular panel

and overruled the respondent’s motion. The jury panel

consisted of nineteen regular panel members and ,fourteen

standby veniremen.

On direct appeal to the Missouri Court of Appeals, the

respondent alleged that he was entitled to a new trial on

the grounds objected to in the trial court and, in addition,

bece .se the standby jurors were chosen by deputy sheriffs

who had testified for the state. In affirming the respond-

ent’s conviction, the Missouri Court of Appeals stated that

the regular veniremen had been properly excused before

the bystanders were chosen. In relation to the respondent’s

contention on appeal that the deputies who testified ha:!

chosen the bystanders, the Missouri Court of Appeals stated:

‘‘Defendant’s third point is that the trial court

erred ‘in refusing to grant defendant’s motion to quash

the jury panel in that fourteen members of said panel

were selected by deputy sheriffs who were witnesses

for the state and against the defendant.’

7

‘‘A sufficient answer to this point is that it has

no factual support. The record does show that two

deputies testified for the state. Defendant’s brief says

that ‘they were also involved in the summoning of

the fourteen bystanders who made up part of the jury

panel.’ The transcript contains no basis for that re-

mark.’’ State v. Henson 552 S.W.2d 378, at 382 (Mo.

App., Spr.D. 1977).

The respondent then filed a state post-conviction mo-

tion, pursuant to Missouri Supreme Court Rule 27.26. At

the trial court level, the respondent contended that deputies

who testified against him chose the bystanders. At the

hearing on said post-conviction motion, the only evidence

presented by the respondent pursuant to that allegation

was the testimony of Deputy Kimbrow, who testified that

he did not participate in the choosing of the bystander

veniremen. This issue was not raised on appeal from the

denial of the post-conviction motion. Henson v. State, 581

S.W.2d 595 (Mo.App., 1979). While the respondent’s state

post-conviction motion was pending on appeal, he filed an

application for a writ of habeas corpus in the United States

District Court for the Eastern District of Missouri, pur-

suant to 28 U.S.C. § 2254, seeking release on bond while

the state appeal was pending. Respondent then amended

his petition to include, among others, the ground that dep-

uty sheriffs who testified chose the bystander veniremen.

Following the Missouri Court of Appeals decision in Hen-

son v. State, supra, the United States District Court for

the Eastern District of Missouri, adopting the Review

and Recommendation of the United States Magistrate,

denied the respondent’s Petition for a Writ of Habeas

Corpus without a hearing.

The respondent was granted a certificate of probable

cause and in his brief on appeal he again alleged that he

was entitled to habeas corpus relief because deputy sheriffs

8

who had testified in his trial chose the bystander venire-

man. After oral argument, the United States Court of

Appeals for the Eighth Circuit remanded the cause to the

district court for an evidentiary hearing to determine how

the bystanders had been chosen. The District Court referred

the proceeding to the United States Magistrate for the

hearing, and, after said hearing, the United States Court

of Appeals, without the magistrate first having filing Find-

ings of Fact and Conclusions of Law, issued its opinion

holding that the sheriff’s choosing the bystander venire-

men, pursuant to § 494.250(2), RSMo, violated the re-

spondent’s right to a trial by jury and due process. The

Eighth Circuit Court of Appeals specifically found that

a timely objection in the state trial had been made, that

the sheriff had chosen people with whom he was acquainted,

and that an actual showing of prejudice was unnecessary

since there was a potential prejudice in having the officer,

whose subordinates investigated the case, choose the by-

standers.

It is from this latest opinion of the United States

Court of Appeals, Eighth Circuit, that the petitioner seeks

this Court’s review.

REASONS FOR GRANTING THE WRIT

The petitioner submits that a Writ of Certiorari should

issue because the proceedings in the United States Court of

Appeals for the Eighth Circuit in Henson v. Wyrick were

apart from the accepted and usual course of the proceed-

ings; and because the final opinion in Henson v. Wyrick

Cause No. 79-1808 (November 12, 1980) was apart from

the accepted and usual course of proceedings, is in conflict

with previous decisions of this court and is in conflict

with the decision of the highest state court of Missouri, in

State v. Eugene Holt, 592 S.W.2d 759 (Mo. bane 1980).

CONTEMPORANEOUS OBJECTION

Petitioner suggests that the Court of Appeals’ hold-

ing, that the respondent did not deliberately bypass his

available state remedies by failing to contemporaneously

object to, and present evidence in support of, his allega-

tion that the deputy sheriffs wl.> testified against him chose

the bystander veniremen, is in conflict with the decision

in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53

L.Ed.2d 594 (1977). In Wainwright, supra, the objection

at trial to the admissibility of the defendant’s previous

statements to the police was on the ground that the basic

elements of the offense had not yet been established at

the time those statements were made. On appeal, the defend-

ant raised the issue that the statements were inadmissi-

ble because of his failure to understand the Miranda warn-

ings. The state appellate court did not review this ground

because of the failure of the plaintiff to contemporaneously

object at trial. This Court held that the applicant could

not raise that issue in a petition for a writ of habeas corpus

because he had deliberately bypassed the available state

procedures and had made no showing of cause and preju-

dice for so doing.

In the case at bar, following voir dire, the only objec-

tion to the jury was on the grounds that the special judge

presiding over the respondent’s trial had not been the judge

who had excused the regular panel members (it had been

the regular judge who had excused them for the term); and

that the regular panel had not been fully exhausted because

four members who were eventually excused had not been

excused prior to the order for the bystander veniremen

being issued. On appeal to the state appellate court, the

respondent alleged that he had been denied due process be-

cause the bystander veniremen had been chose by deputy

sheriffs who had testified on behalf of the State at trial.

10

The Missouri Court of Appeals, in affirming respondent’s

conviction, indicated that it could not rule on the merits

of this contention because the respondent, at the pre-trial

hearing on a motion to quash the jury panel, presented no

evidence that it was these deputies who had chosen the

bystanders. The reason that there was no evidence pre-

sented at this hearing is obvious. The respondent had made

no objection, at that time, to the jury panel on the grounds

that the bystanders had been chosen by deputy sheriffs

who testified for the state. The Eighth Circuit interpreted

the Missouri Court of Appeals’ opinion as recognizing that

the respondent preserved his objection at trial. The peti-

tioner contends that the Missouri Court of Appeals did

nothing more than indicate that they could not reach the

merits because the respondent had presented no evidence

at the pre-trial hearing on the motion to quash the jury

panel. This motion, of course, was held after the respondent

objected to the jury panel on grounds other than those raised

in his Application for a Writ of Habeas Corpus. Of course,

if this interpretation of the Eighth Circuit is allowed to

stand, the danger of ‘‘sandbagging,’’ as this Court pointed

out in Wainwright, will have come to have passed. All the

defendant will need to do is to object to the jury on grounds

other than those which he will later present to the federal

court. A hearing will be held in state court, of course, only

on those grounds objected to at state trial. Then, on appeal

to the state court, the defendant will present, for the first

time, his grounds which he will later bring into federal

court. The state appellate court, of course, cannot rule

because there was no evidence presented by the defendant

at the hearing below. In so doing, however, the petitioner

contends that the defendant has bypassed his available

state remedies by not objecting, at the trial level, on the

constitutional grounds. Had he done so, as pointed out in

Wainwright, a prompt hearing could have been held where

the issues are fresh in everyone’s mind. It is obvious, from

11

the fact that the state trial court held a hearing on the

objection which the respondent did make, that they were

amenable to holding such a hearing.

To obtain federal jurisdiction in the matter in which

the Kighth Circuit Court of Appeals allowed the respondent

to do, obviously disallows the state court the opportunity

to rule upon the respondent’s contentions. The respondent

had his opportunity, in the trial court, to present and sup-

port his objection. He failed to do so. In fact, the respond-

ent had another opportunity, at his hearing on his state

post-conviction motion, and he again failed to introduce

any evidence on this bystander-juror claim, other than one

deputy who testified that he did not choose the bystanders.

Further, on appeal from said state post-conviction mo-

tion, the respondent did not even raise this issue in the

Missouri Court of Appeals. Thus, it is the contention of

the petitioner that the respondent bypassed his remedies

not once, but twice. Petitioner urges this Court to grant

this Petition for a Writ of Certiorari because the Kighth

Circuit Court of Appeals’ opinion is clearly in conflict with

Wainwright v. Sykes, and, if this opinion is allowed to

remain as precedent, the ‘‘sandbagging”’ feared in Wain-

wright will be prevalent among the federal and state courts.

The Issue Decided on Appeal Was not the

Issue Presented in the District Court

The petitioner contends that the Eighth Circuit’s ac-

cepting and deciding of this case, upon the issue that the

sheriff chose the bystander veniremen, is a departure from

the accepted and normal procedure in that this issue had

never been presented in the state court nor in the district

court. The issue presented in the district court, on the

Application for a Writ of Habeas Corpus, was that the

deputy sheriffs who had actually testified for the state

were the persons who had chosen the bystander venire-

12

men. As the Court can see from the Eighth Circuit’s opinion,

this allegation of the respondent was proven not to be true.

The District Court never considered the issue of whether

the fact that the sheriff, who had not testified nor investi-

gated the respondent’s case, chose the bystander veniremen

and, if so, whether there was a denial of due process

in so doing. By the injection of this new issue, i.e., that

the sheriff chose the bystander veniremen, the case be-

came, in effect, a challenge upon the constitutionality of

§ 494.250(2), RSMo.

The petitioner suggests that it is a severe departure

from procedure for an appellate court to decide a case on

a ground not raised in the district court. For these reasons,

the petitioner earnestly requests that this Court grant the

Petition for a Writ of Certiorari.

No Showing of Actual Prejudice

The petitioner submits that this Court _ grant the

Petition for a Writ of Certiorari because thé Eighth Cir-

cuit’s holding, that the respondent is not required to show

actual prejudice as a result of the sheriff’s having chosen

the bystander veniremen, conflicts with the decision of

the highest appellate court of the State of Missouri, in

State v. Eugene Holt, 592 S.W.2d 759, 768 (Mo. bane 1980).

In addition, there are several other state’s cases which

also require a showing of actual prejudice in the situation

such as occurred in this case. Those cases appear in Ap-

pendix A in the Court of Appeals’ decision under the

subheading ‘‘ Prejudice to the Defendant.’’ See also Humes

v. Robbins, 128 F.Supp. 586 (D.Me. 1955), where it was

held that the defendant had to show the manner in which

he was prejudiced by the sheriff’s choosing the bystanders.

As indicated by the former sheriff’s testimony before the

Magistrate, in small counties bystander veniremen are often

required to be chosen pursuant to § 494.250(2), RSMo.

13

The highest court of the state of Missouri, in State v. Holt,

supra, has indicated that, absent a showing of actual preju-

dice, this procedure is not violative of a defendant’s con-

stitutional rights. The United States Court of Appeals,

in this cause, has held that such a procedure is inherently

prejudicial and no showing of actual prejudice is required.

Thus, the petitioner submits that it is important that this

Court settle the dispute between the highest state appellate

court in Missouri and the federal circuit in which it is

located as to whether it is inherently prejudicial for a

sheriff to choose bystander veniremen as required, when

necessary, by state statute.

No Requirements of Findings of Fact

and Conclusions of Law

Petitioner’s next question presented relates to the fact

that the United States Magistrate, following the hearing

which was held after remand by the United States Court

of Appeals for the Eighth Circuit, made no Findings of

Fact and Conclusions of Law concerning th evidence pre-

sented. Rule 8, fol. 28 U.S.C. § 2254, requires that, if a

hearing on a petition for writ of habeas corpus is held in

front in front of a magistrate, he shall propose Findings of

Fact and Conclusions of Law. Following the Recommenda-

tion of the magistrate, the party shall have opportunity

to file written objections to the findings, and the judge of

the district court shall review the findings if an objection

is made. Appellate review of the findings of fact of a

district court is limited to whether the lower court’s find-

ings were clearly erroneous. Neil y. Biggers, 409 U.S. 188,

193 (footnote 4), 93 S.Ct. 375, 379 (footnote 4), 34 L.Ed.2d

401 (1972) ; United States ex rel. Henne v. Fike, 563 F.2d

809, 813 (7th Cir. 1977), cert. denied, 434 U.S. 1072, 98

S.Ct. 1257, 55 L.Ed.2d 776 (1978); Rules 02(a), 81(a)(2),

F.R.Civ.P.

14

In the case at bar, following the district court’s denial

without a hearing, the United States Court of Appeals for

the Eighth Circuit remanded the cause to the district court

for a hearing on the issue of the chocsing of the bystander

veniremen. That hearing was held in front of the United

States Magistrate. No Findings of Fact or Conclusions of

Law were ever filed by the Magistrate. The only notifica-

tion the parties received, following this hearing, was the

final Eighth Cireuit opinion, which was filed on Novem-

ber 12, 1980. Thus, it is obvious that the United States

Court of Appeals made the findings of fact, rather than

the United States Magistrate who was present and able

to observe the demeanor of the witnesses. Further, it is

obvious from the Magistrate’s questions, which appear in

the record of that hearing, that his view of the facts did

not equate with the rendition of the facts given by the

United States Court of Appeals in their opinion. The peti-

tioner contends that the reason that the tribunal hearing

the testimony should make the findings of fact is because

they are available to observe the witnesses and what occurs.

This is a much more trustworthy manner of resolving factual

questions than to have a Court of Appeals, looking only a

written record, make all findings of fact. Thus, the peti-

tioner requests that this Court grant the Petition for a Writ

of Certiorari because, by failing to have the Magistrate

file Findings of Fact and Conclusions of Law, the Court

of Appeals did not follow the normal and accepted pro-

cedure. The Court of Appeals had no chance to observe the

demeanor of the witnesses in making their Findings of Fact,

and, further, the parties were not given the chance, as

required by Rule 8, fol § 2254, to contest the Findings of

Fact and Conclusions of Law which arose out of the hearing.

Burden of Proof

The petitioner submits that a Writ of Certiorari should

issue because the United States Court of Appeals for the

15

Kighth Circuit, in their Order remanding this cause for

hearing to the district court, placed the burden of proof

on the petitioner, Warden Wyrick. As such, the petitioner

suggests that this decision conflicts with federal statute

and Supreme Court case law.

It is clear that the burden of proof in habeas corpus

proceedings is upon the applicant. 28 U.S.C. § 2254(d);

Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 85

L.Ed. 830 (1941); Johnson v. Zerbst, 304 U.S. 458, 469,

98 S.Ct. 1019, 82 L.Ed. 1461 (1938) ; Harned v. Henderson,

988 F.2d 12 (2nd Cir. 1978). However, as can be seen in

Appendix A, the Court of Appeals departed from that

standard proc: lure by placing the burden of proof upon

the petitioner, Warden Wyrick.

The petitioner objected, in front of the United States

Magistrate, upon the burden of proof’s being placed upon

them. Said objection was overruled. As indicated above,

the petitioner had no other opportunity to renew this ob-

jection in front of the Court of Appeals, since the Court

of Appeals’ decision was rendered without findings of fact

and a decision being rendered by the district court. The

petitioner contends that the Court of Appeals could not

have found that the respondent had already presented evi-

dence so as to shift the burden since there had been no

evidence presented on this issue in the trial court and the

only evidence presented in front of the state post-convic-

tion trial court was that Deputy Kimbrow had not par-

ticipated in the choosing of the bystander veniremen. As

noted above, there was no hearing in the District Court

prior to the Eighth Circuit’s remand. Thus, there had been

no presentation of evidence by the respondent prior to

the hearing in front of the magistrate which would have

shifted the burden of proof from the respondent, where

the statute and case law has placed it, to the petitioner.

16

The petitioner requests that this Court grant the Pe-

tition for a Writ of Certiorari for the reason that the Court

of Appeals acted in a manner apart from the accepted

and usual course of proceedings in placing the burden of

proof upon the petitioner.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

JoHN ASHCROFT

Attorney General

Pau Rosert Otto

Assistant Attorney General

Supreme Court Building

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

MicHAEL ELBEIN

Assistant Attorney General

of Counsel

APPENDICES

al

A-1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 79-1808

Sseew«_————wl08“—a“eowoO aoe

JOHN DALE HENSON,

Appeal from the

Appellant, | ‘United States

V. District Court

DONALD WYRICK, Warden, for the Eastern

Missouri State Penitentiary, District of

Appellee. _ Missouri.

Seec3="*""—s

Submitted: January 18, 1980

Filed: April 29, 1980

Before Lay, Chief Judge, STEPHENSON, Circuit Judge, and

THomas,* Senior District Judge.

ORDER

This petition for writ of habeas corpus, filed pursuant

to 28 U.S.C. § 2254, presents a serious question regarding

the constitutionality of permitting a sheriff, or members of

his office, to select petit jurors from bystanders upon the

order of a court in a criminal proceeding. Cf. Ross vy.

Wyrick, 581 F.2d 172, 175 (8th Cir, 1978).

*Daniel H. Thomas, Senior District Judge, Southern District of

Alabama, sitting by designation.

A-2

Petitioner contends the sheriff, or his deputies, se-

lected the bystander jurors for his second degree murder

trial upon order of the court, pursuant to Mo. Rev. Stat.

§ 494.250(2). The record, however, is insufficient to enable

us to decide the issue. The only evidence it contains is a

deputy sheriff’s testimony in the hearing on petitioner’s

state post-conviction motion, that he did not know by whom

the bystanders were selected.

This case, therefore, is hereby remanded to the district

court for 60 days, for the limited purpose of obtaining

additional evidence by affidavit or otherwise as to how

the bystanders were chosen, and certifying the same to

this court. In doing so, the burden of proof shall be on the

state to show the manner ia which the bystander jurors

were selected. The case is accordingly remanded to the

United States District Court for further proceedings.

IT IS SO ORDERED.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

{ Not to be published. ]

A-3

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 79-1808

JOHN DALE HENSON, eae A foams the

ppew'an', | United States

V. District Court

DONALD WYRICK, Warden, for the Eastern

Missouri State Penitentia District of

" — ry,

Appellee. | Missouri.

Submitted: April 29, 1980

Filed: November 12, 1980

Before Lay, Chief Judge, SrerpHenson, Circuit Judge, and

THomas,* Senior District Judge.

Lay, Chief Judge.

John Dale Henson is a Missouri state prisoner serving

a sentence of 35 years for conviction, in Cireuit Court of

Butler County, Missouri, of second-degree murder. Henson

claimed the homicide was in self defense or an accident. His

petition for a writ of habeas corpus contends, among other

things, that the jury selection process used in his trial vio-

lated the due process and equal protection clauses of the

fourteenth amendment.

*Daniel H. Thomas, Senior District Judge, Southern District of

Alabama, sitting by designation.

A-4

Petitioner contends the sheriff or his deputies selected

bystander jurors for his trial upon order of the court pur-

suant to Mo. Rev. Stat. § 494.250(2). Petitioner contends

that two of the sheriff’s deputies investigated the homi-

cide and testified at trial. In the evidentiary proceeding

before the magistrate, the sheriff testified that to select

bystander jurors he would go through the phone book or

a list prepared by his office and, knowing the people in

the county, select ‘‘regular citizens [and] high standard

people to be jurors.’’ The sheriff admitted that he would

sometimes select jurors without relying on the phone book

by ealling people he thought would be available. Other

times the sheriff would select standby jurors from local

banks or businesses. The sheriff generally knew all the peo-

ple he called. He made a conscious effort to select ‘‘solid

citizens’? and persons whom jury service would not in-

convenience, e.g., retired persons or, in the winter, farmers.

The sheriff’s office deputy, who aided in the selection of

standby jurors, stated: ‘‘We would serve no one that we

didn’t think would be reliable, dependable person to be a

good juror.”’

The sheriff testified that he was not personally in-

volved in the investigation of the crime for which Henson

was convicted. The deputy sheriff who was primarily re-

sponsible for the investigation of the defendant’s crime

testified that he was not involved in selecting jurors or

bystander jurors, serving subpoenas on jurors, or compiling

the list of bystander jurors. The sheriff selected fourteen

of his acquaintances to complete the venire panel for Hen-

son’s trial. Seven of the twelve petit jurors came from the

sheriff’s hand-picked list.

Contemporaneous Objection.

The state argues that the petitioner is precluded from

raising an objection to the method of selection of bystander

A-5

jurors under the contemporaneous objection requirement of

Wamwright v. Sykes, 433 U.S. 72 (1977). On direct appeal

of Henson’s conviction, the Missouri Court of Appeals

affirmed the trial court’s refusal to grant Henson’s motion

to quash the jury panel because the Court of Appeals found

insufficient factual support for Henson’s allegations about

improper selection of bystander jurors. State v. Henson,

002 S.W.2d 378, 382 (Mo. Ct.App. 1977). By reaching the

issue of the sufficiency of the evidence, the Missouri court

impliedly recognized that Henson preserved his objection

at trial. The Missouri Attorney General’s Wainwright v.

Sykes objection seems anomalous in light of this finding by

the highest court of Missouri that Henson had made an

objection at trial. We agree with the findings by the United

States Magistrate in Henson v. Wyrick, No. 78-970C (4)

(E.D. Mo. April 20, 1979) and the district court, No.

78-970C(3) (E.D. Mo. September 6, 1979), that no Mis-

souri procedural requirement prevents federal jurisdiction

over the constitutional issue raised by Henson’s petition.

Denial of Due Process.

The issue in this case is whether a sheriff whose sub-

ordinates investigated and arrested the defendant for a

crime has violated the defendant’s due process rights by

hand-picking from among the sheriff’s acquaintances the

bystanders who became petit jurors. There appears to be

no controlling Supreme Court or Eighth Circuit authority.

The state argues that Cravens v. United States, 62 F.2d

261 (8th Cir.), cert, denied, 289 U.S. 733 (1933), authorizes

a sheriff to hand-pick bystander jurors unless the sheriff

was active in the investigation and prosecution of the

defendant. Cravens does not involve a due process claim

but involves rather the interpretation of when a marshal

is ‘‘interested’’ in a prosecution within the meaning of a

A-6

now repealed federal statute.’ Id. at 271. Cravens held

that federal district courts did not have to appoint a dis-

interested person to select bystander jurors, and could

rely on the marshal to select such jurors, when the marshal

was not ‘‘interested in the cause.’’ Id.? In addition to in-

volving different substantive law, Cravens is factually

distinguishable from this case in two important respects.

First, in Cravens, there was no indication that the marshal

selected the bystander jurors from among his acquaintances.

In this case, the sheriff hand-picked his acquaintances as

jurors. Secondly, in Cravens, the marshal was found to

have no ‘‘interest’’? in the case inasmuch as he had not

been involved with the investigation, investigators, prose-

cution or prosecutors. In this case, however, the sheriff’s

subordinates were responsible for the investigation and

arrest of the defendant. Because Cravens involved a fed-

eral statute and not the Constitution, these distinctions

are not dispositive of the issue presented here. Neverthe-

1Act of Mar. 3, 1911, ch. 231, §§ 279-280, 36 Stat. 1165, 28 U.S.C.

§§ 416-417 (Supp. VII 1933), as amended by Act of Jan. 31, 1929, ch.

126, 45 Stat. 1145, 28 U.S.C. § 417 (1934). Section 417 provided:

When, from challenges or otherwise, there is not a petit jury

to determine any civil or criminal cause, the marshal or his deputy

shall, by order of the court in which such defect of jurors happens,

return jurymen from the bystanders sufficient to complete the panel;

and when the marshal or his deputy is disqualified as aforesaid [see

28 U.S.C. § 416 (1934)], jurors may be so returned by such dis-

interested person as the court may appoint, and such person shall

be sworn, as provided in section 416 of this title.

These provisions have been replaced by Act of Mar. 27, 1968, P.L. 90-

274, § 101, 82 Stat. 59, 28 U.S.C. § 1866(f), which is quite different

from the earlier version.

2Where a federal marshal was involved in the investigation or prose-

cution of someone, the marshal was disqualified from selecting the by-

stander jurors. In such a situation, 28 U.S.C. §§ 416-417 (1934) required

appointment of a disinterested person to select bystander jurors in the

marshal’s stead. Johnson v. United States, 247 F. 92 (9th Cir. 1917);

Cravens v. United States, 62 F.2d 261, 271 (8th Cir. 1933).

A-7

less, this court’s recognition in Cravens of the fundamental

unfairness of an interested official hand-picking the by-

stander panel is the central concern in this case. See also

Johnson v. United States, 247 F. 92 (9th Cir. 1917).

Judicial and Congressional Concern With Abuse of

Discretion in Jury Selection.

The issue of the sheriff’s hand-picking jurors came

before this court in another Missouri state prisoner’s ha-

beas petition in Ross v. Wyrick, 581 F.2d 172 (8th Cir.

1978). In Ross, this court held the sheriff’s personal se-

lection of black persons for a venire panel in a criminal

case did not cure the unconstitutional underrepresentation

of blacks on the master jury list. Jd. at 175. Although it

is unclear whether Ross’s holding was based on the defec-

tive master jury list, the sheriff’s arbitrary selection, or

both, id, at 175 n.8, there is no question that this court was

concerned with the opportunity for the sheriff to abuse

his or her discretion in selecting venire panel members. /d.

at 174-75,

This court’s statements in Ross about the potential for

officers to abuse their discretion in selecting jurors echoed

the longstanding concerns of other federal courts. Glasser

v. United States, 315 US. 60, 85-86 (1942) (dictum) ;

Cravens v. United States, 62 F.2d 261, 271 (8th Cir. 1933)

(dictum) ; Gideon v. United States, 52 F.2d 427, 429 (8th

Cir. 1931) (clerk of court abused discretion by sending

out a questionnaire to prospective jurors); United States

v. Gordon, 253 F.2d 177, 184 (7th Cir. 1958) (dictum) ;

United States v. Dennis, 183 F.2d 201, 220-21 (2d Cir. 1950)

(dictum), aff’d, 341 U.S. 494 (1951); Ippolito v. United

States, 108 F.2d 668, 669-70 (6th Cir. 1940) (dictum) ; John-

son v. United States, 247 F.92 (9th Cir. 1917) (special offi-

cer should have been appointed to select bystander jurors

where marshal was personally involved in the investigation

A-8

of defendant) ; Humes v. Robbins, 128 F. Supp. 586 (D. Me.

1955) (dictum). The Supreme Court described the poten-

tial dangers of excessive discretion in officials who select

jurors in Glasser:

And, its [the duty of selecting jurors] exercise must

always accord with the fact that the proper functioning

of the jury system, and, indeed, our democracy itself,

requires that the jury be a ‘‘body truly representa-

tive of the community,’’ and not the organ of any

special group or class. If that requirement is ob-

served, the officials charged with choosing federal

jurors may exercise some discretion to the end that

competent jurors may be called. But they must not

allow the desire for competent jurors to lead them

into selections which do not comport with the concept

of the jury as a cross-section of the community. Tend-

encies, no matter how slight, toward the selection of

jurors by any method other than a process which will

insure a trial by a representative group are under-

mining processes weakening the institution of jury

trial, and should be sturdily resisted. That the motives

influencing such iendencies may be of the best must

not blind us to the dangers of allowing any encroach-

ment whatsoever on this essential right. Steps in-

nocently taken may, one by one, lead to the irretrieva-

ble impairment of substantial liberties.

315 U.S. at 85-86. See also Murrah v. State, 532 F.2d 105

(8th Cir. 1976).

Congressional concern for fundamental fairness in the

method of selecting bystander jurors has caused federal

selection methods to evolve from one of marshals selecting

bystanders from persons present in court® to a method of

8Act of Mar. 3, 1911, ch. 231, § 280, 36 Stat. 1165, 28 U.S.C. § 417

(1934).

A-9

random selection from specified lists in a manner ordered

by the court.* This legislative change was prompted in large

part by congressional desires to eliminate ‘‘subjective

screening’’ of potential jurors. H.R. Rep. No. 1076, 90th

Cong., 2d. Sess., reprinted in [1968] U.S. Code Cong. &

Ad. News 1792, 1794, 1797.

Furthermore, many state courts have also expressed

concern over the unbridled discretion of officials in the

selection of bystander jurors, See State v. Olek, 288 Minn.

235, 179. N.W.2d 320, 326 (1970) (after sheriff had picked

two persons personally acquainted with him to complete

a venire panel, the court ordered the sheriff to select eight

others who were not acquainted with him from which the

panel would be completed); Howard v. State, 103 Tex.

Crim. App. 205, 280 S.W. 586, 587 (1926) (sheriff’s picking

jurors from lists supplied by railroad shop foremen was

strongly condemned) ; Hargo v. United States, 1 Okl. Crim.

App. 590, 98 P. 1021 (1909) (deputy marshal who excluded

from list of bystanders all persons who admitted acquaint-

ance with defense counsel acted improperly; conviction

reversed) ; Colwell v. Commonwealth, 320 S.W.2d 116, 120

(Ky. 1959) (court strongly condemned practice by court

clerk of notifying her friends that jury service would be

available when court instructed sheriff to select talesmen) ;

People v. Bedard, 11 Ill, 2d. 622, 145 N.H.2d 54 (1957) (it

was reversible error under an Illinois statute for the trial

court to refuse to appoint a special bailiff to summon

bystander jurors upon defendant’s motion where the sher-

iff’s office was interested in the case before the court) ;

Coy v. State, 288 S.W.2d 782, 783-84 (Tex. Crim. App. 1956)

(it was reversible error under Texas statute for sheriff to

hand-pick tales rather than to select them from the jury

*Act of Mar. 27, 1968, P.L. 90-274, § 101, 82 Stat. 59, 28 U.S.C.

§ 1866(f).

A-10

wheel where county by statute was required to use wheel

to select venire panel).

Prejudice to the Defendant.

A number of state cases require the defendant to show

actual prejudice before a conviction will be reversed on

the grounds that the sheriff allegedly abused his or her

discretion in the selection of bystander jurors. See State

v. Holt, 592 S.W.2d 759, 767-68 (Mo. 1980) (sheriff’s hand-

picking of jurors is permissible absent a showing of af-

firmative prejudice); Smith v. State, 241 Ark. 748, 410

S.W.2d 126 (1967) (it was not reversible error to allow

sheriff who was a state’s witness to hand-pick two jurors

from a jury list absent a showing of actual prejudice to

the defendant) ; Taylor v. State, 420 S.W.2d 601, 605 (Tex.

Crim. App. 1967) (the sheriff’s hand-picking of tales w

not error); State v. Shaw, 284 N.C. 366, 200 S.E.2d 585,

587 (1973) (since defendant had an opportunity to examine

the tales on voir dire, and alleges no violation of trust by

the sheriff, the sheriff’s summoning of additional jurors

was not error) ; State v. White, 6 N.C. App. 425, 169 S.E.2d

895, 897 (1969) (in absence of proof that officer has vio-

lated the discretionary trust placed in him to select and

summon tales, the officer should remain free to use his

or her best judgment in carrying out the orders of the

trial court); State v. Sturdivant, 31 N.J. 165, 155 A.2d

771, 774-75 (1959), cert. denied, 362 U.S. 956 (1960) (sher-

iff’s exercise of discretion is authorized in selection of

tales, but sheriff must not willingly select partial jurors

or accept the suggestion of a litigant. Defendant must show

affirmative prejudice to obtain reversal. Jd. at 776).

In Humes v. Robbins, 128 F. Supp. 586 (E.D. Me.

1955), the federal district court found no prejudice in a

state trial where preliminary precautions were taken to

insure that the sheriff’s discretion to select bystander

A-11

jurors was not abused. The sheriff who investigated the

crime, arrested the defendant and served as a witness for

the state, was nevertheless allowed to pick the bystanders

for the jury. The district court observed:

Humes told his counsel that he mistrusted the sheriff’s

disinterestedness in selecting talesmen and his counsel

took the matter up with the court. The court thereupon

called a conference in chambers with the prosecuting

attorney, Humes’ attorney, and the sheriff, at which

the court ordered the sheriff not to tell the persons he

ordered into court for service as talesmen anything

about the case upon which they might be selected to

sit, or to mention Humes’ name in connection with

it. It was also then agreed that Humes’ counsel might

interrogate each talesman as he was called for exami-

nation prior to selection as a juror... . Neither Humes

nor his counsel made any further objections to the

selection of talesmen by the sheriff.

128 F. Supp. at 588-89.

The constitutional defect in Henson’s jury is that the

sheriff hand-picked his acquaintances to complete the venire

panel. That some jurors were acquaintances of the sheriff

would not itself invalidate the conviction. United States

v. Carr, 584 F.2d 612, 616 (2d Cir. 1978), cert. denied, 440

U.S. 935 (1979) ; United States v. Hurd, 549 F.2d 118, 120

(9th Cir. 1977); United States v. James, 453 F.2d 27, 28

(9th Cir. 1971); United States ex rel. Cooper v. Reincke,

219 F. Supp. 733, 741 (D. Conn. 1963), aff’d, 333 F.2d 608

(2d Cir.), cert. denied, 379 U.S. 909 (1964). Also, that the

court allowed some discretion in the selection of jurors

would not invalidate the conviction. Townsend v. Ross, 396

F.2d 573, 577 (8th Cir. 1968) ; Beatrice Foods Co. v. United

States, 312 F.2d 29, 35 (8th Cir. 1963); Cravens, 62 F.2d

at 270. In this case, however, the sheriff exercised his dis-

A-12

cretion to ensure that only his acquaintances would fill

venire panel vacancies.

The potential for a conviction prone jury under such

a system is substantial. Although perhaps not directly

involved in the investigation of Henson’s crime, the sheriff

was the immediate supervisor of the deputies in charge of

the case. Regardless whether the sheriff had spoken with

his deputies about the case or had formed an opinion as

to Henson’s guilt before the trial, there is a great potential

for the sheriff to hand-pick jurors sympathetic to the

prosecution. Where, as here, the jurors are picked accord-

ing to the sheriff’s subjective rather than objective criteria,

the opportunity for the sheriff to express his allegiance

to the prosecution by selecting sympathetic jurors is un-

limited. Cf. Turner v. Fouche, 396 U.S. 346, 360 (1970) ;

Singleton vy. Estelle, 492 F.2d 671, 678 (5th Cir. 1974). In

such situations, there is considerable. risk that the bystander

jurors will mirror the sheriff’s own biases.

In addition to the likely predisposition of his selections,

a jury could easily associate the credibility of the sheriff

with his deputy, who testified against Henson. It is true

that Henson’s trial counsel had the opportunity to show

bias on voir dire and protect Henson from the potentially

prejudicial selection methods of the sheriff. But where the

potential of prejudice is so great we fail to see how an

opportunity for counsel to conduct a voir dire can undo

the harm already done. The subtleties involved in identify-

ing jurors’ sympathies and predicting their evaluation of |

deputies’ prospective testimony are often too intangible

to identify during voir dire. When the potential prejudice

is as great as it was here a showing of actual prejudice

to the defendant is not necessary in order to warrant a new

trial.°

5In Peters v. Kiff, 407 U.S. 493 (1972), the Supreme Court dis-

(Continued on next page)

A-13

We conclude that Henson was denied due process and

a trial by a fair jury. A method employing random selection

from a master jury list, appointing a special bailiff to select

bystander jurors, or otherwise limiting the sheriff’s dis-

cretion would require more time to select such jurors, but

fundamental fairness to the defendant requires some method

better designed to obtain an impartial jury than the sheriff

hand-picking among his acquaintances.

Footnote continued

cussed the showing required of a defendant who alleged that a defect in

his jury deprived him of due process. The Court stated:

Moreover, even if there is no showing of actual bias in the

tribunal, this Court has held that due process is denied by circum-

stances that create the likelihood or the appearance of bias. This rule,

too, was well established long before the right to jury trial was made

applicable in state trials, and does not depend on it. . . . As this

Court said in In re Murchison, supra, “[flairness of course requires

an ebsence of actual bias in the trial of cases. But our system of law

has always endeavored to prevent even the probability of unfairness.”

349 U.S., at 136.

These principles compel the conclusion that a State cannot, con-

sistent with due process, subject a defendant to indictment or trial

by a jury that has been selected in an arbitrary and discriminatory

manner, in violation of the Constitution and laws of the United

States. Illegal and unconstitutional jury selection procedures cast

doubt on the integrity of the whole judicial process, They create the

appearance of bias in the decision of individual cases, and they in-

crease the risk of actual bias as well.

Id. at 502-03.

The Court concluded:

It is in the nature of the practices here challenged that proof of

actual harm, or lack of harm, is virtually impossible to adduce. For

there is no way to determine what jury would have been selected

under a constitutionally valid selection system, or how that jury would

have decided the case. Consequently, it is necessary to decide on

principle which side shall suffer the consequences of unavoidable

uncertainty. See Speiser v. Randall, 357 U.S. 513, 525-526 (1958) ;

In re Winship, 397 U.S. 358, 370-373 (1970) (Harlan, J., concur-

ring). In light of the great potential for harm latent in an unconsti-

tutional jury-selection system, and the strong interest of the criminal

defendant in avoiding that harm, any doubt should be resolved in

(Continued on next page)

A-14

We hold that the ends of justice and due process will

be served if Henson is granted a new trial.

The denial of the petition for a writ of habeas corpus

is ordered reversed; the district court is ordered to grant

the writ of habeas corpus directing release of the petitioner

unless the petitioner is granted a new trial within a rea-

sonable time as to be determined by the district court.

It is so ordered.

A true copy.

ATTEST:

CLERK, U. 8S. COURT OF APPEALS,

EIGHTH CIRCUIT.

Footnote continued

favor of giving the opportunity for challenging the jury to too many

defendants, rather than giving it to too few.

Id. at 504 (citations omitted).

In Turner v. Louisiana, 379 U.S. 466 (1965), the Supreme Court

overturned a conviction by a jury which had been placed in the custody

of two deputy sheriffs who were the prosecution’s chief witnesses. Id. at

471-73. The grounds for overturning that conviction were “the potentiali-

ties of what went on outside the courtroom” while the jury was with the

deputies. Id. at 473. In Turner, the court overturned the conviction be-

cause of the potential of an ex parte, extra-record communications with

jurors by prosecution witnesses.

The Supreme Court has employed the vehicle of probability of preju-

dice to overturn other convictions as well. See, e.g., Sheppard v. Maxwell,

384 U.S. 333, 352-55 (1966); Estes v. Texas, 381 U.S. 532, 544 (1965);

Rideau v. Louisiana, 373 U.S. 723, 727 (1963).

A-15

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

Oooo

JOHN DALE HENSON, etc.,

Petitioner,

v. » No. 78-970 C (3)

DONALD WYRICK, Warden,

Respondent.

ORDER

This matter is before the Court on the petition of John

Dale Henson for a writ of habeas corpus. After considera-

tion of the Review and Recommendation of the United

States Magistrate and petitioner’s exceptions thereto,

IT IS HEREBY ORDERED that the Review and

Recommendation of the United States Magistrate be and

is ADOPTED, and that the petition of John Dale Henson

for a writ of habeas corpus be and is DISMISSED without

further judicial proceeding.

Dated this 6th day of September, 1979.

Edward L. Filippine

UNITED STATES DISTRICT JUDGE

A-16

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

Se

JOHN DALE HENSON, ete., |

Petitioner,

v. | No. 78-970 C (4)

DONALD WYRICK, Warden,

Respondent.

cence emmmaammmasaataaammsaaassssmmstaassaassamemmsemmmmmmumamsmsaiaiaaiis

MAGISTRATE’S REVIEW AND RECOMMENDATION

John Dale Henson is once again before this Court seek-

ing federal habeas corpus relief. Petitioner originally sought

in his application to be released on bond, pending the ap-

peal of his 27.26 motion. On December 22, 1978, the under-

signed United States Magistrate returned a recommenda-

tion that the petitioner’s application be dismissed without

further proceedings. This recommendation denying bond

has not been acted upon by the District Court at this time.

Petitioner then filed a motion requesting additional time

to file an amended application, which was granted. Peti-

tioner has since filed his amended application.

Petitioner has presented new issues in support of his

request for habeas relief. These issues are:

(1) The trial court erred in refusing to grant peti-

tioner’s motion to quash the jury panel, in that

§ 494.250 R.S.Mo. (1969) is unconstitutional be-

cause it allows a sheriff or deputy to select jurors

at his discretion.

(2) The trial court erred in refusing to instruct the

A-17

jury on self-defense in addition to the instruction

the court gave on excusable homicide.

(3) That the trial court erred in refusing to grant pe-

titioner’s motion to quash the jury panel, because

the panel was not selected in accordance with

§ 494.250 R.S.Mo. (1969).

(4) Petitioner was denied a fair and impartial trial

because women were given special exemptions in

regards to their serving on jury panels.

The respondent first reminds us that petitioner has

filed a motion to vacate judgment and sentence, pursuant

to Missouri Rule of Criminal Procedure 27.26, in the Mis-

souri Court of Appeals, Southern District. The respondent

further relates that the issues raised in that motion are not

the same as raised by petitioner in the immediate proceed-

ing. As the issues raised in said motion are different from

those raised in the present proceeding, this Court is of the

opinion that said court proceedings would not be a bar to

consideration by this Court.

Petitioner’s first issue raises a somewhat troubling and

serious situation. We will, therefore, defer consideration of

this matter until after our analysis of the other issues raised

by the petitioner.

Peitioner’s second allegation is that the trial court

erred in refusing to instruct on self-defense in addition to

the instruction the court gave on excusable homicide. Gen-

erally, an alleged error of refusal of a trial court to give a

particular instruction is not cognizable in a habeas corpus

action. Wilson y. Parratt, 540 F.2d 415 (8th Cir. 1976) :

DeBerry v. Wolff, 513 F.2d 1336 (8th Cir. 1975). Thus,

petitioner must establish that said error was a fundamental

defect which inherently resulted in a complete miscarriage

of justice. DeBerry v. Wolff, supra.

A-18

Petitioner, in his traverse, argues the case of Hughes

v. Mathews, 576 F.2d 1250 (7th Cir. 1978). After reading

this case, it is quite apparent that it is totally inapplicable.

Petitioner’s case deals with an instruction based on self-

defense, which is an affirmative defense. Such an affirma-

tive defense requires the defendant to carry the burden of

proof on said issue. In Hughes, the court was concerned

with the degree of proof necessary to prove intent to com-

mit first degree murder as opposed to second degree mur-

der, and the affect of certain presumptions that arose under

state law. As a result, this case is totally irrelevant as to

self-defense. After a careful review of the trial transcript,

this Court is convinced that the trial court made no sub-

stantial error in its instructions, and that even if slight

error was present, it was not sufficient to give rise to a

miscarriage of justice.

Petitioner’s third allegation is that the trial court erred

in refusing to grant petitioner’s motion to quash the jury

panel, because the panel was not selected in accordance

with statutory provisions. First of all, this issue has been

thoroughly litigated through the Missouri Court of Appeals,

Springfield District. At issue in this allegation is the fact

that four absentee veniremen, who had presented excuses,

were not excused before the fourteen additional members

were summonded by the special venire proceedings. An

allegation that state courts have failed to comply with state

law in a criminal proceeding is purely a matter of local

concern, and not normally reviewable by a federal court

under the due process clause. Cox v. Hutto, 589 F.2d 394

(8th Cir. 1979). Petitioner has failed to set out any facts

which would establish that the failure to comply precisely

with the statute, i.e., to excuse the absent members prior

to calling the special venire, in any way resulted in preju-

dice to him. It is clear from the record that these four absent

veniremen were not going to be required to serve on the

A-19

jury panel that day. We are convinced that petitioner has

not been prejudiced in any way by the order in which the

four absent venirement were excused.

Petitioner’s fourth allegation is that he was denied a

fair and impartial trial because women were given special

exemptions in regards to their serving on jury panels. The

respondent points out that petitioner failed to directly ap-

peal this issue. The retroactive effect of Duren v. Mis-

sour, - USS. , 47 L.W. 4089 (1979), has been dealt

with by the United States Supreme Court in Lee v. State

of Missouri, No. 77-6066 (U.S. Sup. Ct., January 15, 1979).

It was held in Lee 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 re-

jected on a direct review or in state collateral proceedings,

because of the defendant’s failure to exert 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.’’ The respond-

ent argues that petitioner has failed to show said cause.

At the time of petitioner’s trial, the exemption for

women was still being allowed in Missouri, in light of

Taylor v. Louisiana, 419 U.S. 522 (1975). The holding in

Taylor would have raised the suspicion that said exemp-

tion was suspect. However, as was stated in Duren, supra,

a prima facie case must be made before the exemption

would be determined unconstitutional. We cannot and will

not speculate as to whether petitioner could have made such

a case. It is clear that petitioner had the opportunity to

raise such an objection concerning the exemption, but failed

to do so. Petitioner has failed to offer us any plausible

reason fer such failure. Accordingly, we conclude that pe-

titioner has failed to show cause and this allegation is not

sufficient to justify habeas relief.

A-20

The petitioner’s first allegation, which we have delayed

until now to discuss, challenges the constitutionality of

§ 494.250 R.S.Mo. (1969). The petitioner contends that said

statute is unconstitutional because it allows a sheriff or

deputy to select jurors at their own discretion. Additional-

ly, petitioner argues it alolws deputies, who may be witness-

es at trial, to select venire panel members. The main thrust

of the petitioner’s allegation is that this selection process

in essence, denies a defendant a jury selected from a fair

cross-section of the community.

The Eighth Circuit has recently dealt with jury selec-

tion procedures in the case of Ross v. Wyrick, 581 F.2d 172

(8th Cir. 1978). Ross concerned itself with jury panels se-

lected, pursuant to a ‘‘key man’’ system. One of the major

horrors attempted to be alleviated by the court in Ross,

was the opportunity for discrimination which was present

under the ‘‘key man’’ system. This opportunity for dis-

crimination was significantly increased with the additional

procedure of allowing the sheriff to select a special venire

panel.

In Ross, the petitioner was able to establish a prima

facie case of discrimination. In particular, Ross was able

to establish that blacks had been systematically excluded

from jury panels. The Ross court went on to state that,

‘‘The state cannot successfully contend that by allowing the

chief law enforcement officer of the county to personally

select the only black members on the venire panel in a crim-

inal case, it overcame any constitutional deficiency in the

selection process for the master list. (Citations omitted).’’

The most recent statements as to the requirements to

establish a prima facie case of violation of the fair cross-

section requirement, is Duren v. Missouri, supra. In Duren,

at p. 4090, the United States Supreme Court set out the

following requirements to establish a prima facie violation

of the fair cross-section requirements:

A-21

(1) that the group alleged to be excluded is a ‘‘dis-

tinctive’’ group in the community;

(2) that the representation of this group in venires

from which juries are selected is not fair and rea-

sonable in relation to the number of such persons

in the community; and

(3) that this underrepresentation is due to systematic

exclusion of the group in the jury-selection process.

In the case before us, we have quite a different situa-

tion than that presented in the two cases discussed above.

The issue presented by petitioner in this case deals with

the procedures for calling a special venire once a shortage

of jury panel veniremen occurs. The evil being attacked is

the discretion which the sheriff or deputies are allowed to

exercise in deciding just who among the bystanders will be

selected to fill the panel vacancies. Thus, it appears that the

underlying rationale in Ross and Duren, supra, is equally

important in this case. In those two cases, it appears that

the main thrust behind the judicial determinations was to

prevent abuses inherent in the discretionary inclusion or

exclusion of certain classes of citizens. It would, therefore,

seem that regardless of where the discretion is exercisable,

be it at the time the master list is established or when the

jury panel is actually picked, should not alter the underly-

ing problem that we are attempting to eliminate.

The petitioner’s allegation appears to be strengthened

in light of the person who actually does the selection. The

statute authorizes a sheriff or deputy to actually select the

additional jury members. This procedure gives us great

concern because in most situations, it would appear that the

sheriff or deputy, being a law enforcement officer in rural

Missouri, would have a tendency to be prosecution orientat-

ed. The petitioner has even argued that in his case, the

sheriff or deputies who actually did the selection, also

A-22

testified in court against him. This allegation, is in fact,

somewhat substantiated by the record. However, in peti-

tioner’s case, the deputies were not damaging eye-witness-

es to the actual commission of the crime, but were merely

arresting officers, who testified concerning the scene of

the crime and outlined procedures taken by them after-

wards. Regardless, their allegiance is undeniably with the

prosecution. It resolves itself into being a dangerous com-

bination of law enforcer and jury selector. The petitioner

also argues that this selection procedure has also been

questioned in the ‘‘ MISSOURI BENCH BOOK FOR MIS-

SOURI TRIAL JUDGES (Jefferson City, Missouri 1974),

11.14 ‘Petit Jury—Summoning of Jurors (Continued).’:

“TF ADDITIONAL JUROS [sic] ARE RE-

QUIRED THEY SHOULD BE SUMMONED IN A

RANDOM MANNER, AND NOT INDIVIDUAL-

LY SELECTED BY THE SHERIFF OR OTHER

OFFICER. THIS RECOMMENDATION IS MADE

ON THE BASIS OF NUMEROUS RECENT

CHALLENGES TO JURIES IN STATE AND

FEDERAL COURTS, AND IS MADE DESPITE

NUMEROUS CASES SANCTIONING THE SE-

LECTION OF BYSTANDERS, ETC. SEE Sections

494.060 and 494.290.’’

The petitioner points out that although said procedure has

some case authority, there are recent cases and trends to

the contrary and, therefore, judges should refrain from

using said procedure in the future.

We have considered this particular issue in spite of

the respondent’s protestations that the petitioner has not

exhausted his remedies toward it. The respondent has, in

fact, elected to respond to this issue by only addressing the

exhaustion issue. We have considered his argument and

conclude that the petitioner has impliedly exhausted his

A-23

state remedies in his appeal. We are further of the opinion

that to require the petitioner to satisfy the technical re-

quirements of exhaustion at this late date would be an

exercise in futility. Therefore, in all fairness to the peti-

tioner and in the interest of judicial expediency, we have

considred this issue on the merits. Wilwording v. Swensox.,

404 U.S. 249 (1971).

We conclude that while the procedure is highly suspect

and, therefore, we would question its future use, the pivotal

querry still remains as to whether the petitioner’s rights

have been unconstitutionally violated. It would be safe to

say that the due process clause does not, in itself, guaran-

tee a defendant a randomly selected jury. Instead, the

clause requires simply a jury drawn from a fair cross-sec-

tion of the community. It would then be necessary to show

prejudice to establish that the procedure used, defeated

a fair possibility for obtaining a truly representative cross-

section of such community. The requirements to determine

whether a prima facie case has been established were set

out previously. The petitioner has not been able to establish

any of those grounds and we are inclined to believe that

he could not.

Therefore, it is the recommendation of the undersigned

United States Magistrate that petitioner’s application be

dismissed. The parties are hereby advised that they have

ten days from the service of this recommendation within

which to file objections to same, pursuant to 28 U.S.C.

§ 636(b).

Dated: April 20, 1979.

William S. Bahn

UNITED STATES MAGISTRATE

A-24

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JOHN DALE HENSON, etc.,

Petitioner,

v. | No. 78-970 © (3)

DONALD WYRICK, Warden,

Respondent.

—€—€—[€—[€[€[€<€«€«€£_€=€=€=€=€=€=========K€—=T—===_=_=_=_==$===[_—=—E——_———__———_-

ORDER

This matter is before the Court on remand from the

United States Court of Appeals for the Eighth Circuit. By

order dated April 29, 1980, the Court of Appeals remanded

this case for the limited purpose of obtaining additional

evidence on the method by which bystanders were chosen

for service as petit jurors in petitioner’s criminal trial. The

Court of Appeals has directed that the additional evidence,

by affidavit or otherwise, be taken and certified to that

Court within 60 days.

Accordingly,

IT IS HEREBY ORDERED that this case be and is

referred to United States Magistrate William 8S. Bahn, pur-

suant to 28 U.S.C. § 636(b), for the purpose of obtaining

additional evidence as directed by the Court of Appeals.

Dated this 30th day of April, 1980.

Edward L. Filippine

UNITED STATES DISTRICT JUDGE

A-25

APPENDIX C

STATE OF MISSOURI,

Plaintiff-Respondent,

Vv. No. 10368.

JOHN DALE HENSON,

Defendant-A ppellant.

Missouri Court of Appeals, Springfield District.

' June 13, 1977.

Before Bruuines, C. J.. and Hogan and Fuaniean, JJ.

Fuanican, Judge.

John Dale Henson, charged as a second offender, was

found guilty by a jury of the second degree murder of his

14-year-old nephew Jackie Fletcher. Judgment was entered

on the verdict and defendant received a sentence of 35

years. Defendant appeals.

Defendant’s first point is that the trial court erred

in refusing to instruct the jury on the issue of self-defense.

The trial court did instruct the jury on excusable homicide,

(MAI-CR. 2.28 ‘‘The Killing of Another by Accident or

Misfortune’’).

If there was substantial evidence of self-defense, the

trial court was required to instruct thereon, whether re-

quested or not. State v. Boyd, 498 S.W.2d 532, 533[1]

(Mo. 1973). In determining whether the evidence was suf-

ficient to support the giving of a self-defense instruction,

this court must consider the evidence in the light most

favorable to the defendant. State v. Cole, 377 S.W.2d 306,

307[1] (Mo. 1964).

A-26

The defenses of self-defense and accident are incon-

sistent. State v. Peal, 463 S.W.2d 840, 842 (Mo. 1971). If

the shot was fired in self-defense, the firing resulted from

the voluntary act of defendant; if the shot was accidental,

the act was involuntary. State v. Harkins, 535 S.W.2d 462,

464 (Mo.App. 1976). Both defenses, self-defense and acci-

dent, must be submitted where each is supported by the

evidence, unless defendant’s personal testimony is relied

upon to support both. State v. Sanders, 541 S.W.2d 530,

533[2] (Mo. bane 1976).

The parties stipulated that Jackie’s death, which oc-

eurred on April 13, 1975, was caused by a gunshot wound

to the forehead. The shooting took place at the trailer home

of Gladys Henson, mother of defendant and grandmother

of Jackie. Jackie had been living with his grandmother

for about two weeks. Present at the time the shooting took

place, in addition to defendant and the victim, were Kenneth

Huggins, the state’s principal witness, and Gladys Henson,

the principal defense witness. Defendant did not testify.

According to Huggins, he and defendant had spent

most of April 13, 1975, drinking beer. Later that evening,

some time after Jackie and Gladys had gone to bed, Huggins

and defendant went to Gladys’s trailer. The living room of

the trailer adjoins the kitchen. Jackie and Gladys arose

after the two men entered. A bowl of greens was sitting

on a table. Defendant picked up a handful of greens, threw

them on the table, and told Gladys he wished she would

fix him something to eat. Defendant teased Gladys, and

he ‘‘was speaking maybe a little loud, probably cussing

some.”’

Huggins said that Jackie kept trying to get defendant

to get up from where he was sitting. Jackie ‘‘was wanting

to whip him for some reason, and he kept on, and (defend-

ant) did get up once, and he set back down. (Jackie) said,

‘You’re not going to talk to my grandmother that way.’ ”’

A-27

-**Q.. What happened then?

‘A. Well, the boy just kept on and on, and after a

bit John just jumped up and ran outside the door

and came back in with the gun.

‘*(). Now, what happened when John Dale Henson

came back into the house?

‘*A,. He came in, and after I heard him come in I turned

and looked, like this, and I saw the gun and it

fired at that time and the boy fell.’”’...

‘‘Q. How fast did this shot transpire after John come

back in the house?

‘A, Well pretty fast. By the time I turned and saw

the gun and everything, it fired, and just that

fast, real fast.

“*Q. Was it just a split second time thing?

‘A, Like I turned like this and looked, and the gun

went off.’’

According to Huggins, at the time the gun was fired,

defendant’s arm ‘‘was extended out from his chest.’’ Hug-

gins had seen the gun earlier that day when it was in the

defendant’s car. At that time it was in a holster and the

hammer on it was not cocked. After looking at the gun,

Huggins placed it back in the holster and put it under the

car seat, still uncocked. Huggins testified that he did not

see Jackie ‘‘with any sort of weapon that evening.’’ Jackie

and the defendant were approximately the same size. When

the shooting took place the defendant was about 12 feet

from Jackie. Jackie was then standing in the center of the

kitchen and the defendant was about one step inside the

front door of the trailer.

Gladys testified that about 10 p.m., prior to the de-

fendant and Huggins, Jackie had fixed himself two cheese-

A-28

burgers with the use of a butcher knife. After defendant

and Huggins arrived, defendant began to kid her about

the turnip greens. Gladys told defendant he was silly for

drinking and defendant told her that she was an old fuddy

duddy. This made Jackie mad ‘‘so he run at (defendant)

and hit him and knocked (defendant) backwards. (Defend-

ant) shoved (Jackie), and I grabbed (Jackie) by the shoul-

der and pulled him back. (Jackie) just kept getting madder

and madder.’’

Gladys also testified that when she grabbed Jackie

and pulled him back, Jackie picked up the butcher knife

and ‘‘drawed it back.’? When that happened, defendant

left the trailer, making the statement, ‘‘I have something

in the car for you.’’ The defendant came back in with a gun.

While defendant was outside the trailer getting the gun,

according to Gladys, ‘‘ Jackie just stood there ...I told him

to put the knife down but it didn’t do no good.’’

Gladys testified that when the defendant returned to

the trailer with the gun, he stood on the partition line

between the living room and the kitchen, about three feet

from Jackie. Jackie had the knife in his hand at that time,

‘*he just still kept it drawed back, holding it drawed back.’’

When asked whether Jackie was waving the knife back

and forth, Gladys said, ‘‘I don’t know, I can’t swear to that.

I just know he had it drawed back.’’ Gladys said that the

defendant was then holding the gun in his hand and was

‘‘looking down toward the floor.’’ Defendant yanked the

holster off the gun and it went off. Defendant was not

holding the gun out in front of him but had it down ‘‘along

about his stomach’’ with his head and shoulders bent.

Gladys stated that she did not see defendant ‘‘ever point

the gun at Jackie.’’ She also said that the shot was fired

just a second or two after defendant stepped back in the

trailer.

The right of self-defense is not to be invoked unless

A-29

all other means fail. State v. Roberts, 294 Mo. 284, 242

S.W. 669, 674 (1922). ‘‘If he could have safely avoided

using the weapon he was not justified in taking the life

of the deceased.’’ State v. Johnson, 76 Mo. 121, 126 (1882).

‘‘The law of self-defense may imply the right of attack

when it appears reasonably necessary to protect one’s self

from an impending assault. ... Yet it remains the law

of necessity, real or apparent. And the danger must be

imminent or reasonably appear to be so.’’ State v. McGee,

361 Mo. 309, 234 S.W.2d 587, 591[6] (Bane 1950). ‘‘Self-

defense is a last resort and in order to justify a homicide

on such grounds the doer of the homicidal act must have

done everything in his power, consistent with his own safe-

ty, to avoid the danger and avert the necessity, and he must

retreat, if retreat be practicable.’’ State v. Sherrill, 496

S.W.2d 321, 325[14] (Mo.App. 1973); State v. Jackson,

522 S.W.2d 317, 319[3] (Mo.App. 1975).

Although the jury could have found that Jackie was

the aggressor in the initial confrontation between him and

defendant, that confrontation ended upon defendant’s de-

parture from the trailer. Jackie did not pursue him. The

testimony of Gladys, who alone said that Jackie had a

knife, was that ‘‘Jackie just stood there.’’ Defendant went

outside, entered the automobile, and obtained the gun.

His re-entry into the trailer was not a product of ‘‘neces-

sity, real or apparent.’’ Far from doing ‘‘everything in

his power, consistent with his own safety, to avoid the

danger and avert the necessity,’’ State v. Sherrill, supra,

defendant re-entered the trailer and immediately shot his

victim.

The law will not condone defendant’s voluntary re-

sumption of the confrontation nor its tragic consequences.

The right of self-defense, precious and fundamental as

it is, will not be contorted into a hunting license.

In State v. Adkins, 5387 S.W.2d 246 (Mo.App. 1976),

A-30

defendant and his victim were fighting each other in an

automobile. Thereafter the defendant emerged from the

automobile, but re-entered it and resumed the struggle

which culminated in the death of his adversary. In reject-

ing defendant’s contention that the trial court erred in

refusing to instruct on self-defense, the court said, at

p. 249:

‘‘The force used in self-defense must not exceed the

bounds of what is necessary or reasonably appears neces-

sary for defense or prevention. . . . Further, where the

accused continued or renewed the struggle when he had

an opportunity to abandon or decline further, he became

the aggressor, irrespective of whether he was at fault with

the original difficulty, and is not justified in claiming self-

defense. 40 C.J.S. Homicide § 133.’’

The evidence in this record would not support a find-

ing that defendant ‘‘had reasonable cause to believe and

did believe that it was necessary for him to act as he did

to protect himself from such danger.’’ The quoted finding

‘‘must be included in every self-defense instruction in

homicide cases.’’ Para. 3 of Notes on Use to MAI-CR. 2.40.

The trial court properly refused to instruct the jury

on the issue of self-defense. State v. Adkins; State v. Rob-

erts; State v. McGee; State v. Sherrul, all supra.

Defendant’s second point is that the trial court erred

‘‘in refusing to grant defendant’s motion to quash the jury

panel in that said panel was not selected in accordance

with § 494.250 RSMo 1969, which requires the regular and

alternate list of perspective (sic) jurors to be exhausted

before ordering the sheriff to summon prospective jurors

from bystanders.’’

The trial judge was Hon. Flake L. McHaney, who

replaced the regular judge, Hon. Rex A. Henson, the latter

having been disqualified on defendant’s motion. After

A-31

the jury panel was sworn, defendant’s counsel orally moved

that the entire’ panel be ‘‘discharged’’ on several grounds,

including the only one mentioned in his second point, and

elaborated upon in the argument portion of the brief, to

the effect that the sheriff summoned bystanders ‘‘before

the list of alternate petit jurors had been exhausted.’’ Even

if, which need not be decided, the cited statute was appli-

cable to this situation, the fact is that the list of alternate

petit jurors had been exhausted before the sheriff sum-

moned the bystanders.

In connection with defendant’s motion, the court heard

the testimony of the circuit clerk. He testified that Judge

Henson had, prior to the trial of this case, excused all

but 23 of the members of the original list of jurors sum-

moned pursuant to § 494.250, para. 1.2 Of the 23, 19 were

present at the commencement of this trial as panel mem-

bers. The other four were two women, a 74-year-old man,

and a man who ‘‘has a one-man insurance office.’’ It is

the essence of defendant’s complaint that the bystanders

were summoned before these four people were excused.

Although the four people were not present in the court-

room, Judge McHaney entered an order excusing the two

women ‘‘based on the statute which permits them to re-

quest to be excused’’ (§ 494.031[2]), excusing the 74-year-

old man ‘‘because of his age’’ (4 494.031[1]), and excus-

ing the insurance man ‘‘since he is a one-man operation’’

(§ 494.031[9]). It will be observed that, by reason of Judge

McHaney’s proper excusing of the four people, ‘‘the list

1“In order, however, to constitute a ground for a challenge to, or

motion to quash, the array, his objection must go to the whole array or

panel, and not merely to individual persons on it.” 47 Am.Jur.2d Jury

§ 229, p. 817.

2Defendant at no time claimed that there was any noncompliance

with § 494.250, para. 1. He claims noncompliance with § 494.250, para. 2.

A-32

of alternate petit jurors’ had in fact ‘‘been exhausted.”’

The fact that the excusing took place after tL» oystanders

had been summoned is of no moment. It was at most a

‘‘mistake or informality’’ which constitutes no ground for

error. State v. Breen, 59 Mo, 418, 415 (1875).

Moreover, statutes pertaining to summoning jurors,

including § 494.250, ‘‘have uniformly been construed as

merely directory and not mandatory.’’ State v. Thompson,

472 S.W.2d 351, 353[2, 3] (Mo. 1971). The burden of proof

rested upon defendant to show a noncompliance with the

statute. McCormack v. McNamee, 274 S.W.2d 272, 275 (Mo.

1955). Even if there was a lack of strict compliance with

the statute, no error would result absent a showing of

prejudice, State v. Adams, 497 S.W.2d 147, 153[3] (Mo.

1973); State v. Hailey, 350 Mo. 300, 165 S.W.2d° 422,

423[1, 2] (1942); State v. Wheeler, 318 Mo, 1173, 2 S.W.2d

777, 778[2] (1928) ; State v. Pettis, 522 S.W.2d 12, 15[5, 6]

(Mo.App. 1975). The latter has not been demonstrated.

Defendant’s third point is that the trial court erred

‘tin refusing to grant defendant’s motion to quash the

jury panel in that 14 members of said panel were selected

by deputy sheriffs who were witnesses for the state and

against the defendant.’’

A sufficient answer to this point is that it has no

factual support. The record does show that the two deputies

testified for the state. Defendant’s brief says that they

‘‘were also involved in the summoning of the 14 bystanders

who made up part of the jury panel.’’ The transcript

contains no basis for that remark.

The judgment is affirmed.

All eoneur.

8There was no showing whether any of the four persons excused was

a regular or an alternate juror.

A-33

JOHN DALE HENSON,

Movant-Appellant.

v. + No. 11004.

STATE OF MISSOURI,

Respondent.

Missouri Court of Appeals, Southern District,

Division Three.

April 23, 1979.

Rehearing Denied May 10, 1979.

Bruuines, Judge.

John Dale Henson, serving a 35-year prison term for

second-degree murder, filed a postconviction motion under

Rule 27.26, V.A.M.R., to vacate his sentence. Following

appointment of counsel, an evidentiary hearing was con-

ducted. The trial court made detailed findings of fact and

conclusions of law and denied the motion. We affirm.

Our review is limited to a determination of whether

the findings, conclusions and judgment of the trial court

are clearly erroneous. Rule 27.26(j ); Warren v. State, 482

S.W.2d 497 (Mo. bane 1972); Noble vy. State, 552 S.W.2d

267 (Mo.App. 1977). And, we accord due deference to the

trial court’s opportunity to judge the credibility of wit-

nesses at the evidentiary hearing. Nance v. State, 556

S.W.2d 193 (Mo.App. 1977).

Movant’s direct appeal resulted in the affirmance of

his conviction by this court in State v. H enson, 552 S.W.2d

378 (Mo.App. 1977). Various grounds alleged in his mo-

tion to vacate were considered in ruling his direct appeal

and cannot now be relitigated in this proceeding. Davis v.

A-34

State, 482 S.W.2d 468 (Mo. 1972); Wing v. State, 556

S.W.2d 226 (Mo.App. 1977). Other grounds for relief

claimed by movant fall into the category of alleged trial

error not rising to constitutional proportions and cannot

be considered. Coney v. State, 491 S.W.2d 501 (Mo. 1973).

The primary ground alleged by movant is the oft-

asserted charge levelled against trial attorneys, namely,

ineffective assistance of counsel. The thrust of the evi-

dentiary hearing revolved around this charge. The trial

judge, in his filed memorandum, carefully and laboriously

made findings and conclusions adverse to movant’s multi-

tude of averments on this issue. The court had before it

the trial transcript, in addition to the testimony of the wit-

nesses called by each side. The court concluded movant

failed to meet his heavy burden of proof that he was denied

effective assistance of counsel. Stevens v. State, 560 S.W.2d

599 (Mo.App. 1978).

We have reviewed the transcript of the evidentiary

hearing which includes the trial transcript. We do not find

the findings and conclusions of the able trial court to be

clearly erroneous.

The judgment is affirmed.

Fuanican, ©. J., and Maus and Greens, JJ., concur.