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Ham v. State10/5/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Missouri Court of Appeals Western District
Appeal From: Circuit Court of Andrew County, Hon. Weldon Clare Judah
Citation:
Opinion Vote: AFFIRMED. Lowenstein, P.J. and Hanna, J., concur.
Opinion:
Appellant Paul Ham appeals denial of his Rule 29.15 motion for post-conviction relief from his convictions for first degree murder and armed criminal action. He seeks relief on two grounds. First, Mr. Ham claims he was denied effective assistance of counsel at trial when his trial counsel failed to use a peremptory strike against venireperson Olyve Huffman after the Judge refused to strike her for cause. Second, Mr. Ham claims that his appellate counsel was ineffective on his direct appeal because she failed to brief the issue whether the trial court erred in refusing to strike Ms. Huffman for cause.
We find no merit in either contention. If the trial court did not err in denying the strike of Ms. Huffman for cause, she was qualified to sit as a juror, and no prejudice could have resulted from her service on the jury. This is true even if it would have been better strategy to exercise a peremptory strike against Ms. Huffman; the failure to do so could not have prejudiced Mr. Ham for he was entitled only to 12 fair and impartial jurors, not to the 12 jurors who, in hindsight, he believes would have been most favorable to the defense. To the extent that Mr. Ham uses this argument to reargue the alleged error in failing to strike Ms. Huffman for cause at trial, he is improperly attempting to raise trial error in a post-conviction motion.
Mr. Ham is permitted to raise Ms. Huffman's alleged bias in this post-conviction proceed-ing in support of his second point, that appellate counsel was ineffective in failing to appeal the trial court's denial of his strike of Ms. Huffman for cause. Even assuming that counsel should have raised that issue on appeal, Mr. Ham is not entitled to post-conviction relief unless we find that he was prejudiced by the failure to do so because, had it been raised, his conviction would have been reversed and his case remanded for a new trial. For the reasons discussed below, we find that the decision of the trial court not to strike Ms. Huffman for cause was not an abuse of discretion, although it would have been better practice to have granted the motion. Accordingly, the failure to raise this issue on direct appeal did not effect the outcome of the appeal, and the trial court properly denied his motion for post-conviction relief. Affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Ham was sentenced by Judge Weldon C. Judah to consecutive terms of life imprisonment without the possibility of parole on his conviction of first degree murder, and 50 years on his conviction of armed criminal action. The facts giving rise to his convictions, con-sid-ered in the light most favorable to the verdict, are as follows:
On September 14, 1995, Mr. Ham attended a party at Robin Lovelady's house. Also attending the party were Brandon Juarez and the victim, Ronnie Munsterman. Mr. Juarez was unhappy with the attention that Mr. Munsterman paid to Ms. Lovelady at the party. He and Mr. Ham nonetheless left the party with Mr. Musterman, and they all went to a store. While at the store, Mr. Ham and Mr. Juarez decided to beat up Mr. Munsterman, and drove him to a rock quarry for that purpose.
According to Mr. Ham's initial statement to police, he initially hit the victim with a bottle and punched him, but, ultimately, both he and Mr. Juarez decided to "go for it.
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