Cardona-Rivera v. State

33 S.W.3d 625, 2000 Mo. App. LEXIS 1672, 2000 WL 1678423
CourtMissouri Court of Appeals
DecidedNovember 9, 2000
DocketNo. 23118
StatusPublished
Cited by6 cases

This text of 33 S.W.3d 625 (Cardona-Rivera 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
Cardona-Rivera v. State, 33 S.W.3d 625, 2000 Mo. App. LEXIS 1672, 2000 WL 1678423 (Mo. Ct. App. 2000).

Opinion

PER CURIAM.

Jairo Cardona-Rivera (“Movant”) appeals from a judgment of the Circuit Court of New Madrid County denying his Rule 29.15 motion to vacate, set aside or correct a prior judgment and sentence for trafficking in the first degree as a prior offender. He received a prison term of 30 years without eligibility for probation or parole.1 § 195.222.2(2), RSMo Cum.Supp.1993; see State v. Cardona-Rivera, 975 S.W.2d 200, 202 (Mo.App.1998). Movant raises two points of motion court error. He first contends that the motion court erred in overruling his post-conviction relief motion because his trial counsel was ineffective for failing to object, pursuant to the Vienna Convention on Consular Relations (“Vienna Convention”), to the use of Movant’s “statements.” He contends he was prejudiced by his trial counsel’s purported failure because without these “statements” he “would probably have been acquitted.” In his second point, Movant contends the motion court erred in overruling his Rule 29.15 motion because his trial counsel was ineffective at trial for failing to object to the admission of the “unlawfully seized cocaine.” Movant asserts he was thereby prejudiced because absent the cocaine evidence his case would have been dismissed or he likely would have been acquitted.

We do not disturb a motion court’s judgment denying post-conviction relief unless we determine its findings and conclusions are clearly erroneous. Sitton v. State, 17 S.W.3d 917, 920 (Mo.App.2000). “[W]e will find the motion court’s determination clearly erroneous only if a review of the entire record leaves a definite and firm impression that a mistake has been made.” Id. Movant must demonstrate that there is a reasonable probability that, absent the alleged error, the jury would have had a reasonable doubt as to guilt. Id.

In our review of Movant’s first point, he appears to argue that inculpating statements made to state troopers, at the scene of his arrest and when bundles of cocaine were found in a suitcase in the trunk of his car, should be suppressed because he was not warned of his alleged rights under Article 36(l)(b) of the Vienna Convention to have the Columbian consulate notified of his arrest.2 Even assuming arguendo that at the time of the arrest Movant met the foundational requirements showing that he, indeed, was a citizen of Columbia, we nevertheless find that Mov-ant’s first point has no merit.3

[627]*627As best we can ascertain, the contention asserted by Movant in his first point of motion court error is a matter of first impression in the State of Missouri.4 We note that “[t]he [United States] Supreme Court has treated the issue of whether [the Vienna Convention] creates any judicially enforceable rights as an open question. ...” U.S. v. Lomberar-Camorlinga, 206 F.3d 882, 885 (9th Cir.2000). Lomb-era-Camorlinga, supra, involved similar facts and contentions as those found in the instant case. In Lomberar-Camorlinga a Mexican national charged with drug offenses moved to suppress evidence of his post-arrest statements, on the basis that he had not been informed of his rights under the Vienna Convention to notification of his consulate. After his motion was denied, and after his conviction on drug charges, he appealed to the 9th Circuit Court of Appeals. The court en banc observed that “the treaty does not link the required consular notification in any way to the commencement of police interrogation.” Id. at 886. “Nor does the treaty, as Miranda does, require law enforcement officials to cease interrogation once the arrestee invokes his right.” Id. The court noted that “while the rights to counsel and against self-incrimination are secured under the Fifth and Sixth Amendments to our own Constitution and are essential to our criminal justice system, they are by no means universally recognized or enforced.” Id. “[E]ven today European countries typically afford no right to counsel during police questioning.” Id. (citing Gordon Van Kessel, “European Perspectives on the Accused as a Source of Testimonial Evidence,” 100 W. Va. L.Rev. 799, 810 (1998)). The court en banc also observed that “[t]here is no reason to think the drafters of the Vienna Convention had [unique] American rights in mind, especially given the fact that even the United States Supreme Court did not require Fifth and Sixth Amendment post-arrest warnings until it decided Miranda in 1966, three years after the treaty was drafted.” Lomberar-Camorlinga, 206 F.3d at 886. The court en banc concluded: “assuming that some judicial remedies are available for the violation of Article 36, the exclusion in a criminal prosecution of evidence obtained as the result of post-arrest interrogation is not among them.” Id.; accord U.S. v. Li 206 F.3d 56, 60 (1st Cir. 2000) (“We hold that irrespective of whether or not the treaties create individual rights to consular notification, the appropriate remedies do not include suppression of evidence or dismissal of the indictment.”).

While we recognize that the foregoing federal authorities are generally not binding on Missouri state courts, Futrell v. State, 667 S.W.2d 404, 407 (Mo. banc 1984); State v. Common, 959 S.W.2d 469, 473 (Mo.App.1997), their analysis and conclusions are particularly compelling in the context of our review of Movant’s claim of error. Accordingly, we adopt their rationale. Movant suffered no prejudice by not having been informed of the provisions of Article 36 of the Vienna Convention after his arrest. Point denied.

In his second point, Movant posits that his trial counsel was ineffective for failing to object at trial to the admission of the seized cocaine found in a suitcase in the trunk of Movant’s vehicle.

“In order to prevail on a claim of ineffective assistance, appellant must prove by a [628]*628preponderance of the evidence that counsel was ineffective by failing to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances, and that appellant was prejudiced as a result State v. Clay, 975 S.W.2d 121,135 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999); see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). “There are two, separate requirements embodied in this analysis. Counsel must have been ineffective and, in addition, the ineffectiveness must have prejudiced the appellant. If either of these requirements is not met, then a claim for ineffective assistance will fail.” Clay, 975 S.W.2d at 135.

“To prove prejudice, the movant must show a ‘reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.’ ” Shum, 866 S.W.2d at 468(quoting State v.

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Bluebook (online)
33 S.W.3d 625, 2000 Mo. App. LEXIS 1672, 2000 WL 1678423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cardona-rivera-v-state-moctapp-2000.