Burton v. State

68 S.W.3d 490, 2001 WL 1543501
CourtMissouri Court of Appeals
DecidedDecember 4, 2001
DocketNo. ED 78861
StatusPublished
Cited by3 cases

This text of 68 S.W.3d 490 (Burton 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
Burton v. State, 68 S.W.3d 490, 2001 WL 1543501 (Mo. Ct. App. 2001).

Opinion

SHERRI B. SULLIVAN, Presiding Judge.

Introduction

Johnnie Burton (Movant) appeals from a judgment denying his request for post-conviction relief under Rule 29.151 following a limited evidentiary hearing.2 Mov-ant claims ineffective assistance of trial and appellate counsel. We affirm.

Factual and Procedural Background

In May 1997, Movant was charged by indictment with first-degree robbery, a class A felony in violation of Section 569.020,3 first-degree assault, a class B felony in violation of Section 565.050, and two counts of armed criminal action, a felony in violation of Section 571.015. The charges stemmed from an incident that [493]*493occurred at a Stop & Save store on December 2, 1996. In November 1997, after a three-day trial in which Movant’s primary defense was alibi, the jury convicted Movant as charged. The trial court sentenced Movant to ten years’ imprisonment for the first-degree robbery conviction, fifteen years’ imprisonment for the first-degree assault conviction, and three years’ imprisonment for each of the armed criminal action convictions, with the sentences to run concurrently. This Court affirmed Movant’s conviction and sentence in a per curiam order. State v. Burton, 982 S.W.2d 820 (Mo.App. E.D.1998).

Subsequently, Movant filed a motion for post-conviction relief under Rule 29.15, claiming ineffective assistance of trial and appellate counsel. The motion court issued findings of fact and conclusions of law and denied the motion after a limited evi-dentiary hearing. The motion court entered its Order and Judgment (Judgment) on October 5, 2000. Movant appeals from this Judgment.

Standard of Review

Appellate review of the motion court’s action on a post-conviction motion filed under Rule 29.15 is limited to a determination of whether the findings of fact and conclusions of law of the motion court are clearly erroneous. Rule 29.15(k). The motion court’s findings and conclusions are clearly erroneous if a review of the entire record leaves us with the impression that a mistake has been made. State v. Storey, 901 S.W.2d 886, 900 (Mo. banc 1995). The findings and conclusions of the motion court are presumed to be correct. Huth v. State, 976 S.W.2d 514, 516 (Mo.App. E.D.1998).

The Sixth Amendment to the United States Constitution, applicable to the states by the Fourteenth Amendment, guarantees an accused in a state criminal proceeding not only the right to the assistance of counsel, but the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Luckett v. State, 845 S.W.2d 616, 617 (Mo.App. E.D.1992).

To obtain post-conviction relief on a claim of ineffective assistance of counsel, a movant must prove by a preponderance of the evidence that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Sidebottom v. State, 781 S.W.2d 791, 795 (Mo. banc 1989). We need not address both components of the inquiry if the mov-ant makes an insufficient showing on one. Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Sidebottom, 781 S.W.2d at 796.

To prove deficiency, a movant must show that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances. Strickland, 466 U.S. at 690, 104 S.Ct. 2052; Sidebottom, 781 S.W.2d at 795. Counsel is presumed competent. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Sidebottom, 781 S.W.2d at 796. Counsel’s challenged acts or omissions are presumed to be proper and reasonable trial strategy. Strickland, 466 U.S. at 690, 104 S.Ct. 2052; Sidebottom, 781 S.W.2d at 796. We evaluate the challenged conduct from counsel’s perspective at the time. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

To prove prejudice, a movant must show that, but for counsel’s deficient performance, there was a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Sidebottom, 781 S.W.2d at 796. A reasonable probability is a probability sufficient to [494]*494undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

In addition to the requirements for proving ineffective assistance of counsel set out in Strickland, to specifically prove ineffective assistance of appellate counsel, a movant must show that strong grounds exist showing that appellate counsel failed to assert a claim of error that (1) would have required reversal if it had been asserted and (2) was so obvious from the record that a competent and effective appellate attorney would have 'recognized and asserted it. State v. Edwards, 983 S.W.2d 520, 522 (Mo. banc 1999).

Discussion

In his point on appeal, Movant argues that the motion court clearly erred in denying his Rule 29.15 motion because both trial counsel and appellate counsel were ineffective. Movant claims that trial counsel was ineffective for failing to object to (1) the State’s cross-examination of Ja-Don Hancock (Hancock) regarding Mov-ant’s failure to ask Hancock to tell the police that Movant was with Hancock at the time of the offense and (2) the State’s closing argument reiterating Movant’s failure to ask Hancock to tell the police that Movant was with Hancock at the time of the offense. Movant claims that appellate counsel was ineffective for failing to raise as plain error the State’s use of Movant’s silence about his alibi defense to discredit and to impeach that defense.4

Hancock was Movant’s “good friend.” Hancock visited Movant at the Gumbo Correctional Center four times after Mov-ant’s arrest,5 as well as spoke with Movant on the telephone once. After cross-examining Hancock about his failure to tell the police that Movant was allegedly with him at his house at the time of the offense, the prosecutor continued with the following:

Q. So you knew when you went out to Gumbo on January 8th of 1997 that one of your best friends here was being held for that offense that he was arrested for the last time you were with him; correct?
A. Yes.
[[Image here]]
Q. Was he ever yelling and screaming at you saying “I was with you. Why don’t you go tell somebody”? On January 8th when you visited him was he just yelling and screaming at you saying, “You go tell someone I was with you because I couldn’t have been there doing that robbery”? Was he doing that?
A. No.
Q. He didn’t say anything?
A.

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Related

Dorsey v. State
113 S.W.3d 311 (Missouri Court of Appeals, 2003)
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86 S.W.3d 153 (Missouri Court of Appeals, 2002)
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88 S.W.3d 105 (Missouri Court of Appeals, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
68 S.W.3d 490, 2001 WL 1543501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burton-v-state-moctapp-2001.