Armstrong v. State

983 S.W.2d 643, 1999 Mo. App. LEXIS 104, 1999 WL 38975
CourtMissouri Court of Appeals
DecidedJanuary 26, 1999
DocketNo. 22210
StatusPublished
Cited by5 cases

This text of 983 S.W.2d 643 (Armstrong 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
Armstrong v. State, 983 S.W.2d 643, 1999 Mo. App. LEXIS 104, 1999 WL 38975 (Mo. Ct. App. 1999).

Opinion

CROW, Judge.

Appellant, tried by jury, was convicted of murder in the first degree and armed criminal action. This court affirmed the conviction on direct appeal. State v. Armstrong, 930 S.W.2d 449 (Mo.App. S.D.1996).

Appellant thereafter filed a timely motion per Rule 29.151 to vacate the conviction, maintaining that the lawyer who represented him at trial (“Defense Counsel”) rendered ineffective assistance. The motion court denied relief after an evidentiary hearing.

Appellant brings this appeal from the motion court’s judgment. Appellant insists Defense Counsel was ineffective in three respects and the motion court erred in ruling otherwise. Specifically, avers Appellant, Defense Counsel was remiss in: (1) failing to move to disqualify Prosecuting Attorney Ray Lee Caskey, who had “previously served substantially and personally” as a judge in the case, (2) introducing evidence of Appellant’s “prior rape charge,” and (3) failing to “strike” two jurors.

This opinion addresses those complaints seriatim.

As reported in this court’s earlier opinion, Appellant shot the victim to death July 3, 1994. 930 S.W.2d at 450. The incident occurred in Oregon County.

On July 4, 1994, a two-count complaint was filed against Appellant in the Circuit Court of Oregon County.2 Oregon County is one of the four counties in Judicial Circuit 37. § 478.167, RSMo 1994.

On the date the complaint was filed, Ray Lee Caskey (the subject of Appellant’s first claim of error) was the circuit judge of Judicial Circuit 37. William R. Hass was the associate circuit judge of Oregon County.

The transcript of the motion court hearing (September 26, 1997) demonstrates that the “record” of the filing of the complaint (July 4, 1994) was shown to the motion court. Reading aloud from the record, the motion court said:

“I see here on 7/4/94 ... a docket entry, ‘Two count complaint filed in the absence of Judge Haas,’ [sic] from the county clerk, he says, ‘the Honorable Ray Lee Caskey upon said filing and a finding by the court,’ Judge Caskey, ‘that sufficient facts had been stated therein to show probable cause that a felony has been committed on each count. Court orders a warrant issued for the arrest of the defendant Arthur A. Armstrong on both Counts I and II. Warrant issued and placed in the hands of the sheriff for service. Court denies bail and directs that the defendant be held without bail.’ ”

Caskey told the motion court he (Caskey) was circuit judge “some eight months.”3 [645]*645Commenting on the entry of July 4, 1994 (above), Caskey remarked:

“I think ... Judge Haas [sic] was not available the day that the complaint was filed so the clerk contacted me. The complaint was read to me and I told them to issue a warrant and because of the crime that was committed there would be no bond.”

The motion court pursued its inspection of the record, announcing:

“I saw a July 5th entry of ’94 that says, ‘Defendant appears in custody with the public defender, the complaints are read to him. The matter of bail is considered by the court and he is ordered held without bail. Defendant is ordered held pending further proceedings.’ ”

As this court fathoms the transcript of the motion court hearing, the parties agreed that Judge Hass conducted the proceedings July 5, 1994 (chronicled in the entry above). In that regard, CasKey recalled: “I don’t even think ... the defendant ever appeared in front of me.”

According to the transcript of the motion court hearing, Caskey’s only other judicial act in Appellant’s case occurred when a “Motion to Disqualify Judge Haas” [sic] was filed September 15, 1994. Caskey, as presiding judge of Judicial Circuit 37, assigned another judge to the case.

Appellant pled in the motion court that Defense Counsel rendered ineffective assistance in failing to move the trial court “to disqualify ... Caskey from prosecuting [Appellant].” Appellant cited the motion court to Rule 4-1.12 of the Rules of Professional Conduct promulgated by the Supreme Court of Missouri effective January 1, 1986. Paragraph “(a)” of Rule 4-1.12 reads, in pertinent part:

“ ... a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge ... unless all parties to the proceeding consent after disclosure.”

A “Comment” following the above rule reads, in pertinent part:

“The term ‘personally and substantially1 signifies that a judge who was a member of a multi-member court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits.”

The motion court’s findings included these:

“It is the Movant’s position that ... [Defense Counsel] was ineffective for not moving to disqualify ... Caskey as prosecuting attorney in the case.
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It is the finding of this Court that the actions by ... Caskey as presiding judge in the case were ‘remote or incidental administrative responsibilities’ that did not affect the merits of the case. In addition, this Court is not persuaded by the argument made by Movant in connection with State v. Ross [, 829 S.W.2d 948 (Mo. banc 1992) ].
... had [Defense Counsel] made such a motion this would have been overruled. It was not ineffective assistance of counsel for [Defense Counsel] to do a useless act. This point is ruled against Movant.”

Appellant’s first point asserts the motion court erred in the above ruling. Appellant insists the “evidence” at the motion court hearing showed Caskey “had previously served substantially and personally as the judge on [Appellant’s] case, creating an impermissible conflict of interest and appearance of impropriety in violation of [Appellant’s] rights to due process, a fair trial, equal protection of the laws and effective assistance of counsel.”

As he did in the motion court, Appellant argues here that Ross, 829 S.W.2d 948, supports his position.

In Ross, the accused was charged with assault and armed criminal action. 829 S.W.2d at 949. The charges were filed by [646]*646one Klopfenstein, a “part-time” assistant prosecutor. Id. The alleged victim filed a civil suit against the accused based on the incident whence the criminal charges arose. Id. The accused retained a law firm to represent him in the civil suit. Id. Unbeknownst to the accused, Klopfenstein was associated with the firm. Id. Mowry, a lawyer in the firm, handled the defense of the civil suit for the accused. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
983 S.W.2d 643, 1999 Mo. App. LEXIS 104, 1999 WL 38975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-v-state-moctapp-1999.