Turnbough v. Wyrick

¶6PER CURIAM.

¶7Gerald Turnbough, a Missouri state prisoner, appeals from the denial of a writ of habeas corpus. Turnbough was convicted in March of 1972, in the Circuit Court of the City of St. Louis, Missouri, of assault with the intent to kill with malice, in violation of Mo.Rev.Stat. § 559.180. Turnbough had pleaded guilty to a charge of burglary on November 21, 1962, in Greene County, Missouri. This prior conviction was offered outside the presence of the jury in the 1972 trial under the Missouri second offender statute, Mo.Rev.Stat. § 556.280. The jury returned a guilty verdict and, under § 556.-280, the trial judge sentenced Turnbough to 25 years imprisonment. His conviction was affirmed on appeal. State v. Turnbough, 497 S.W.2d 856 (Mo.App.1973). Thereafter Turnbough sought relief under Mo.Sup. Ct.R. 27.26 to vacate his sentence. This was denied and again his conviction was affirmed. Turnbough v. State, 533 S.W.2d 609 (Mo.App.1975).

¶8In his petition for a writ of habeas corpus Turnbough asserts that his conviction under § 556.280 must be set aside since his November 21, 1962, conviction was illegal in that his sentence was imposed at a time when he was not represented by counsel.1 The federal district court, the Honorable John K. Regan, held that Turnbough was not entitled to relief since he had shown no prejudice by reason of the uncounseled conviction. Alternatively the court held that by failing to object in his 1972 trial and appeal Turnbough had effectively waived his right to make this challenge. We affirm the denial of the writ.

¶9The district court found that proof of the prior conviction under § 556.280 required the defendant to be sentenced by the trial court rather than the jury and did not result in a mandatory enhancement of this sentence. The district court held that the petitioner did not have a constitutional right to assessment of his punishment by a jury. See Payne v. Nash, 327 F.2d 197 (8th Cir. 1964). See also James v. Twomey, 466 F.2d 718 (7th Cir. 1972). We agree.2

¶10*204Furthermore, in 1972 when the petitioner was tried under § 556.280, proof of the 1962 Greene County burglary conviction was placed before the jury by his counsel. The federal district court found this was a tactical move and that neither petitioner nor his counsel objected to its admission. Petitioner did not raise the admission of this evidence as error in the state trial court nor did he complain of it on direct appeal from his conviction.3 Under the circumstances we find petitioner is estopped to raise the question now. Cf. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). We are not confronted with a question of whether petitioner made a “deliberate bypass" by failing to object**to a denial of constitutional rights under the principles of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Cf. Gates v. Henderson, No. 76-2065 (2d Cir., filed Jan. 12, 1977). Here petitioner did not merely fail to object, he openly offered the earlier conviction as part of his case in chief. He thereafter did not complain of any prejudice on appeal. Thus where the constitutional right is well known, and is a “trial-type” right, and where petitioner not only fails to object but proceeds affirmatively with proof, regardless of his reason for doing so, we do not feel he can openly invite error and then later rely on the error to reverse his conviction. Cf. Estelle v. Williams, supra; Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).

¶11The judgment of the district court is affirmed.4