dissenting.
I concur in affirming the conviction and in the majority opinion regarding Rule 29.15 post conviction relief in all respects except the denial of an evidentiary hearing on the issue of ineffective assistance of counsel for failure to challenge a biased venireperson for cause.
Venireperson Corkery’s long employment history included several law enforcement agencies. He worked for a police department prior to working for the City of St. Louis Circuit Attorney’s Office. At the time of trial, Corkery was employed by the Department of Justice. He candidly acknowledged his employment history “might make it difficult but not impossible” to be fair to defendant. Corkery was not asked whether he would have any difficulty in being fair to the state. The nature of the “difficulty” was not explored during voir dire in a rehabilitative posture. This answer distinguishes the present case from the holding in State v. Wraggs, 512 S.W.2d 257, 258 (Mo.App.1974) where the court rejected an argument employment standing alone was reason enough to sustain a challenge for cause. In the present case we have a highly suspect employment and an admission that the employment history would make it difficult to give defendant a fair trial. These facts would support a finding defense counsel failed to exercise the customary skill and diligence a reasonably competent attorney would perform under similar circumstances. All that remains is a requirement that defendant satisfy his burden to prove prejudice. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).
By its broadest intendment, defendant alleged he was denied effective assistance of counsel because his defense attorney failed to challenge a biased venireperson for cause and was forced to waste a preemptory challenge. Proof of these facts is not sufficient to prove prejudice in a case where the biased venireperson does not serve on the jury. Forshee v. State, 763 S.W.2d 352, 355 (Mo.App.1988). If the biased venireperson remains unchallenged and serves on the jury then prejudice is presumed. Presley v. State, 750 S.W.2d 602, 607 (Mo.App.1988). In the present case the biased venireperson was not a member of the jury. Hence, a very heavy burden remains upon defendant to prove prejudice. Sanders, 738 S.W.2d at 857.
“It is a well established rule in Missouri that a defendant in a criminal case has the right to a full panel of qualified jurors before he is required to make his preempto-ry challenges (citations omitted), and if he is required to exercise one of his preempto-ry challenges where a prospective juror should have been stricken for cause, the judgment of the trial court is to be reversed and the cause remanded for a new trial.” State v. Wraggs, 512 S.W.2d at 258. The court in Forshee recognized the general rule. However, in reviewing and affirming denial of post conviction relief after an evidentiary hearing, the court found this rule not applicable because Wraggs involved a venireperson whose “ ‘affiliation or connection with law enforcement is, standing alone, not reason enough to sustain a challenge for cause.’ ” (citation omitted). Forshee, 763 S.W.2d at 355. Here, venireperson Corkery was not merely an employee of the Department of Justice, a former employee of the Prosecuting Circuit Attorney and a former police officer, he acknowledged his employment history would make it difficult for him to give the defendant a fair trial. The rationale employed in Forshee to distinguish the rule recognized in Wraggs does not apply to the present circumstances.
But was defendant prejudiced by the failure of trial counsel to challenge venireper-son Corkery for cause? In the absence of an evidentiary hearing there is no basis to answer that question. All that is certain is defendant will never have an opportunity to prove prejudice from denial of a full panel of qualified jurors because his attor*466ney failed to make a motion to strike for cause where it is reasonably probable the motion would have been sustained.
The motion court concluded the Rule 29.15 issue was not properly before it and, therefore, the court lacked subject matter jurisdiction. Accordingly, it did not consider sufficiency of pleading or whether there was prejudice, more particularly whether the record forecloses a finding of prejudice. The majority opinion depends on matters never considered by the parties or the trial court. In this civil proceeding these are matters for the trial court.
The conviction on the charge is important, but a fair trial is also important. Allowing venireperson Corkery to remain on the venire panel without a challenge for cause would seem to fall well below the exercise of the customary skill and diligence of a reasonably competent attorney. The result of the failure was to deny defendant a constitutional right to a full panel of qualified jurors before exercise of preemp-tory challenges. On these facts defendant is entitled to an opportunity to prove prejudice at an evidentiary hearing.