Mercer v. State

ON ALTERNATIVE MOTION FOR REHEARING OR FOR TRANSFER

PER CURIAM:

The defendant has filed a vigorous motion for rehearing, or alternatively, for transfer to the Supreme Court, as provided by Rule 84.17. As anticipated, counsel has renewed his complaint that the trial court failed to comply with 27.26(i) by making “specific findings of fact and conclusions of law” as required by Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978). In Fields, our Supreme Court held:

“In ruling on the motion, whether with or without an evidentiary hearing, the court shall follow rule 27.26Q and make findings of fact and conclusions of law on all issues presented. Only if that is done can the appellate court make the kind of review contemplated by rule 27.-26(j).”

Id., 572 S.W.2d at 483.

It is readily apparent from the quoted language that our Supreme Court did not intend to require a trial court to erect a strawman at which counsel may throw bricks at some second-guessing stage of the proceeding, and indeed counsel for defendant has not suggested wherein the non-specificity of the findings consists. Our inspection of the findings discloses that the trial court considered and ruled each ground properly cognizable in a proceeding for postconviction relief. The rule consistently followed by the Court of Appeals in these cases is that when the trial court has made findings on all issues sufficient to enable the reviewing court to review the movant’s contention, the requirements of Rule 27.26(i) have been satisfied. Jones v. State, 604 S.W.2d 607, 609 (Mo. App.1980), and see Thomas v. State, 512 S.W.2d 116, 121 (Mo. banc 1974). Moreover, remand is not required for further findings and conclusions if those that appear in the record are sufficient for the reviewing court to determine the correctness of the trial court’s action. Jones, 604 S.W.2d at 609. Further, as in other court-tried actions, the fact that the trial court may have assigned incorrect or erroneous reasons for its decision is immaterial if the correct result was reached. Id., 604 S.W.2d at 609; Durham v. State, 571 S.W.2d 673, 677 (Mo.App.1978).

The other point which we did not reach in the principal opinion was the defendant’s attempt to raise a point unmistakably raised on direct appeal, in a slightly sufficient guise. Citing Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976), which applied the rule stated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Defendant now attempts to attack the jury composition by saying that counsel was ineffective because he did not “object to questioning on voir dire that exceeded the proper scope of voir dire in order to ascertain *948whether veniremen were irrevocably committed to vote against the death penalty regardless of the facts and circumstances in evidence.”

It is obvious that the composition of the jury as being prosecution-prone or irrevocably committed against the death penalty was considered at length on the direct appeal. See Part III.A. of State v. Mercer, 618 S.W.2d 1, 6-8 (Mo.banc 1981). Whatever objection defendant now claims his trial counsel should have made during the voir dire examination of the veniremen, the opinion of our Supreme Court shows no prejudice resulted. Defendant must establish prejudice to establish ineffective assistance of counsel. Burton v. State, 641 S.W.2d 96, 100 (Mo. banc 1982); Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979). Because it has been conclusively adjudicated that the composition of the jury did not violate the Witherspoon principle, defendant cannot establish prejudice. The point is without merit. The motion for rehearing is denied; the alternative motion for transfer is denied.

All of the Judges concur.