Abbott v. State

769 S.W.2d 462, 1989 Mo. App. LEXIS 580, 1989 WL 40869
CourtMissouri Court of Appeals
DecidedApril 27, 1989
DocketNo. 15732
StatusPublished
Cited by4 cases

This text of 769 S.W.2d 462 (Abbott v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbott v. State, 769 S.W.2d 462, 1989 Mo. App. LEXIS 580, 1989 WL 40869 (Mo. Ct. App. 1989).

Opinion

FLANIGAN, Presiding Judge.

Movant John Abbott appeals from the trial court’s order, entered after evidentia-ry hearing, overruling his Rule 27.261 motion to set aside a judgment and sentence for first degree murder. The conviction, based on a jury verdict, was affirmed by this court. State v. Abbott, 571 S.W.2d 809 (Mo.App.1978).

Movant contends that he was entitled to relief on his motion, and the trial court erred in ruling otherwise, because movant did not receive effective assistance of counsel at the jury trial. Movant claims that his trial counsel was ineffective in the following respects:

(1) Counsel failed to object to testimony given by Trooper Plunkett at the jury trial to the effect that a boot print at the scene of the murder was made by a boot owned by movant.

(2) Counsel failed to have movant’s boots examined to determine the source of the dirt found on the boots.

(3) Counsel failed to impeach Deputy Sheriff McDonald, to whom movant gave an oral confession to the murder, by showing that the day following the confession McDonald sought a warrant charging mov-ant with conspiracy to commit robbery rather than murder.

(4) Counsel failed to advise movant fully about his right to testify and the need for his testimony.

Appellate review in this proceeding is limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous. Rule 27.-26(j); Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984).

“In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced.”

Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

In support of the foregoing proposition, the court in Sanders relied upon Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979).

In its discussion of the “performance prong,” the Court in Strickland said, 104 S.Ct. at 2065: “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy-’ ”

In its discussion of the “prejudice prong,” the Court in Strickland said, at 2068: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” The Court also said, at 2069: “[A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.”

Criticisms (1) and (2) of counsel’s conduct will be considered together. At the evidentiary hearing, movant produced witness David Warren, who claimed to be an expert on footprint identification. War[464]*464ren had reviewed the testimony given by Trooper Plunkett at the jury trial and was critical of Plunkett’s testimony. Although the instant record is unclear, apparently Plunkett testified at the jury trial that a boot print found at the scene of the murder was made by one of a pair of boots owned by movant and found in movant’s possession shortly after the murder. Warren challenged the reliability of Plunkett’s testimony by testifying that he, Warren, saw only “class characteristics” rather than “individual characteristics” in two photographs of boot prints which were admitted during Plunkett’s testimony. Movant argues that trial counsel was ineffective in failing to require the state to establish that Plunkett was an expert in footprint identification and in failing to ask Plunkett whether his testimony was based on class characteristics rather than individual characteristics.

Movant testified that he had not worn the boots since he had been in Indianapolis some time prior to the murder. Movant asserted that trial counsel was ineffective by not comparing the soil found on the boots, at the time they were seized by the officers during the investigation, with soil found at the scene of the murder. Movant described the soil at the scene as “natural sandy soil, and black gumbo dirt,” and he also said, “There is no such dirt on the streets of Indianapolis.”

Although movant did not testify at the jury trial, a defense witness, Loal Joiner, told the jury that defendant was present when the murder was committed. At the motion hearing movant testified that Joiner “was one of the guys that was convicted as a result of this murder,” that Joiner had testified because movant wanted him to do so, and that he, movant, had asked trial counsel “to be sure and put [Joiner] on the witness stand.” On cross-examination at the motion hearing movant testified:

“Q. And Mr. Joiner I believe in essence testified that yeah, you were along the night that Mr. Holder was shot and this murder occurred.
A. Yes.
Q. So there never really was any question about whether or not your footprints might have been around that building somewhere, was there?
A. There never was no question about that, no.”

At the motion hearing the state called movant’s trial counsel as a witness. He testified that “there was never any contention about [movant] not being physically present at the scene [of the murder.]” The following testimony was then elicited from movant’s trial counsel:

“Q. Okay. So really, in relation to footprint evidence of boots that being matched up to footprints, was that ever a part of anything that you wanted to prevent the jury hearing or seeing?
A. No. He, he was there at, at the scene, and Mr. Joiner testified to that.”

On cross-examination at the motion hearing David Warren admitted that he did not know when the two photographs of the boot prints were taken with respect to the time when the boot prints were made in the soil. He admitted that an inspection of the boot print itself, as distinguished from a photograph taken three days after the boot print was made, would be a better basis for identification, and he also admitted that it was “quite possible” that Plunkett might have seen “the actual print in the ground.”

Although the two photographs were introduced into evidence at the motion hearing, movant’s boots were neither offered nor admitted. Movant makes no claim that the boots were not available for admission at the motion hearing.

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207 S.W.3d 228 (Missouri Court of Appeals, 2006)
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877 S.W.2d 682 (Missouri Court of Appeals, 1994)
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Cite This Page — Counsel Stack

Bluebook (online)
769 S.W.2d 462, 1989 Mo. App. LEXIS 580, 1989 WL 40869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-v-state-moctapp-1989.