State v. Johnson

BARDGETT, Chief Justice,

dissenting.

I respectfully dissent.

I disagree with the holding of the principal opinion which, following State v. Williams, 595 S.W.2d 378 (Mo.App.1980), holds that every defendant who was convicted in a jury-tried criminal case in Jackson County from the date of State v. Duren, 556 S.W.2d 11 (Mo.banc Sept. 27, 1977), to Du-ren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), is entitled to a new trial. The principal basis for my position is that the issue of the extent of retroactivity to be afforded Duren v. Missouri, supra, was considered and decided in Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979), and in Harlin v. Missouri, 439 U.S. 459,99 S.Ct. 709, 58 L.Ed.2d 733 (1979), and neither case mandates the retroactivity required by the principal opinion in this case.

In Hariin v. Missouri, supra, the United States Supreme Court held the petitioner was entitled to the benefits of Duren. Har-lin did not raise the objection in timely fashion but the trial court did consider and reject the contention on the merits in connection with petitioner’s motion for new trial and, on appeal, this Court reviewed the issue under our “plain error” rule and rejected the contention on the merits for the reasons stated in State v. Duren, supra. This rendered our decision subject to review by the United States Supreme Court and resulted in reversal. 439 U.S. at 459-460, 99 S.Ct. at 709-710.

In Lee v. Missouri, supra, the United States Supreme Court held Duren to be applicable to petitioner Lee and other-named petitioners noting that in each case the trial court denied a timely motion to quash the jury panel, and on appeal the convictions were affirmed on the basis of State v. Duren, 556 S.W.2d 11. With respect to the retroactivity of Duren, the Court stated, 439 U.S. at 462, 99 S.Ct. at 711:

... The State of Missouri has urged that our decision in Duren not be applied retroactively to petitioners or appellants other than Duren himself. However, because that decision does not announce any “new standards” of constitutional law not evident from the decision in Taylor v. Louisiana, the considerations that have led us in other cases to depart from full retroactive application of constitutional holdings, see, e. g., Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), are inapplicable to juries sworn after the decision in Taylor v. Louisiana. Compare Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), holding Taylor v. Louisiana inapplicable to cases in which the jury was sworn prior to the date of that decision.
We note 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 rejected on direct review or in state collateral proceedings because of the defendant’s failure to assert the claim in timely fashion, relief is unavailable under 28 U.S.C. § 2254 unless the petitioner can *628show cause for having failed to raise his claim properly in the state courts. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). (Emphasis added.)

In the instant case there was no objection to the venire or the jury at the outset of the trial or in the motion for new trial. The point has been raised for the first time on appeal. I would reject the point on this direct review because of defendant’s failure to assert the claim in timely fashion. Under Lee v. Missouri, supra, the holding of Duren v. Missouri, supra, is not applicable to this case.

Further adhering to Lee v. Missouri, supra, I would overrule State v. Williams, 595 S.W.2d 378 (Mo.App.W.D. 1980), to the extent that it exceeds the bounds of retroac-tivity required of Duren v. Missouri, supra, by Harlin and Lee.

Nor do the issues decided in Duren v. Missouri, supra, require retroactivity beyond that required by Harlin and Lee. Retroactive application of a rule is required where the rule goes to the integrity of the fact-finding process. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). See also Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The underrepresentation of women on jury venires does not go to the integrity of the fact-finding process. Persons convicted by juries in Jackson County prior to 1979 were not unfairly convicted because of the underrepresentation of women on jury venires. The refusal of the United States Supreme Court in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), to apply Taylor retroactively attests to this view.

In Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), the United States Supreme Court stated at 32-33, 95 S.Ct. at 705:

... In Taylor, as in Ducan, we were concerned generally with the function played by the jury in our system of criminal justice, more specifically the function of preventing arbitrariness and repression. In Taylor, as in Duncan, our decision did not rest on the premise that every criminal trial, or any particular trial, was necessarily unfair because it was not conducted in accordance with what we determined to be the requirements of the Sixth Amendment.... Here, as in Ducan, the requirement of retrying a significant number of persons were Taylor to be held retroactive would do little, if anything, to vindicate the Sixth Amendment interest at stake and would have a substantial impact on the administration of criminal justice in Louisiana and in other States whose past procedures have not produced jury venires that comport with the requirement enunciated in Taylor. (Emphasis added.)

The Court nevertheless afforded a limited retroactive effect to Duren in Lee, as set forth supra in the quotation from Lee. As indicated, in view of the nature of the issues as described in Daniel, I would not expand retroactivity beyond that required by Lee and Harlin. In my opinion, the retrial of all cases in Jackson County, which includes the second largest city in Missouri, for the period indicated in the principal opinion is not warranted, Daniel v. Louisiana, supra, but to the extent required by Lee and Harlin will be afforded.

I would reject the Duren point in this case as one not preserved for review and not constituting plain error and would not consider the point “on the merits”.

In view of the foregoing I regard the impact retroactivity would have on the judicial system in cases where the challenge was not timely made is unjustifiable and not required by the controlling decisions of the United States Supreme Court except to the extent set forth in Lee and Harlin.

I therefore dissent but do not reach the other points on appeal at this time.