Cornman v. State

779 S.W.2d 17, 1989 Mo. App. LEXIS 1408, 1989 WL 112163
CourtMissouri Court of Appeals
DecidedSeptember 29, 1989
DocketNo. 16116
StatusPublished
Cited by3 cases

This text of 779 S.W.2d 17 (Cornman 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
Cornman v. State, 779 S.W.2d 17, 1989 Mo. App. LEXIS 1408, 1989 WL 112163 (Mo. Ct. App. 1989).

Opinion

FLANIGAN, Presiding Judge.

Movant Chester Cornman appeals from the trial court’s denial, after evidentiary hearing, of his Rule 29.151 motion to set aside a conviction, based on a jury verdict, of conspiracy to commit murder and assault in the first degree. Movant’s punishment was assessed at 10 years for the conspiracy and 30 years for the assault, with the terms to run consecutively. On direct appeal the conviction was affirmed. State v. Cornman, 695 S.W.2d 443 (Mo. banc 1985).

Movant’s first point is that he was entitled to relief on his motion, and the trial court erred in ruling otherwise, because movant was denied effective assistance of counsel at the jury trial. Specifically mov-ant asserts that his trial counsel, Peter Sterling, was ineffective by failing to interview or call as witnesses at the trial “several alibi witnesses of whom movant had made attorney Sterling aware, including Debbie Ebbinger and Cathy Cain, in that [Debbie and Cathy] testified at the eviden-tiary hearing, without refutation by the state, that attorney Sterling had not interviewed them and that had they been called to testify they would have testified that movant had been in their presence at the time of the shooting of Davis Haas and therefore could not have been present at the shooting.”

In the trial court movant had the burden of proving his grounds for relief by a preponderance of the evidence. Rule 29.15(h). Appellate review of the trial court’s denial of the motion is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous. Rule 29.15®.

“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. Strickland [v. State], 466 U.S. [668] at 687, 104 S.Ct. [2052] at 2064 [80 L.Ed.2d 674 (1984)]; Seales [v. State], 580 S.W.2d [733] at 736 [Mo.1979], A criminal defendant must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim. In reviewing such a claim, courts are not required to consider both prongs; if a defendant fails to satisfy one prong, the court need not consider the other. And, a court need not determine the performance component before examining for prejudice. If it is easier to dispose of the claim on the ground of lack of sufficient prejudice, the reviewing court is free to do so. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 (emphasis added).”

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

At the hearing on the motion the mov-ant’s attorney, who is not the attorney representing movant on this appeal, asked the trial court to take judicial notice of the transcript of the jury trial, and the trial court agreed to do so. That transcript, however, has not been filed in this court, nor does movant’s brief direct this court’s attention to any portion of it.

In State v. Cornman, supra, the supreme court pointed out that movant was charged with conspiracy to commit murder by agreeing with others to kill one Sims. [19]*19Movant was also charged with assault for the shooting of one Haas, a neighbor of Sims. The state’s theory, said the supreme court, was that movant, accompanied by a fellow conspirator Jesse James Morgan, shot Haas, mistaking him for Sims. “Haas was shot October 28, 1981, near his home in rural Phelps County.” Cornman, at 445. The shooting occurred on “that fateful morning.” Id. The opinion contains no more specific information with regard to the time of the shooting. The opinion does state that the shooting took place near the intersection of Highway 72 and County Road 163.

At the hearing on the motion, movant testified that Debbie Ebbinger and Cathy Cain are his sisters. According to the testimony of Cathy Cain at the motion hearing, the three of them and other people were staying at her house which was “off V Highway in St. James.” St. James is in Phelps County.

At the motion hearing Debbie Ebbinger testified that she was at Cathy Cain’s house between 6:30 a.m. and 7:00 a.m. on October 28, 1981, and movant was there at that time. Debbie also testified that she never gave that information to anyone and that she had not been interviewed by defense attorney Sterling. She said she did not testify at the jury trial, nor was she subpoenaed to do so.

Debbie also gave the following testimony:

“Q. Mrs. Ebbinger, did you happen to be present with Jesse James Morgan and your brother, Chuck Cornman, after the shooting?
A. Yes, sir.
Q. And were you in a car with them, I believe, going to Arkansas or something?
A. Yes, sir.
Q. Did you hear any statement made by Chuck to James Morgan?
A. The only thing that was ever said about the whole thing, after we left Rol-la, was one of the girls had made a comment about money and Chuck had said — do you want me to state this just straight out?
Q. Yes, we’re all mature enough to take it, I think.
A. Chuck had said that Jesse would have money if he hadn’t of * * *ed up and shot the wrong guy.”

Debbie said that if she had been contacted by Sterling she would have told him of that conversation and would have related its contents at the jury trial.

Cathy Cain testified that movant was at her house at 6:45 a.m. on October 28, 1981, that she was not interviewed by Sterling, and that she did not testify at the jury trial. There was testimony that movant’s girl friend also knew that movant was at Cathy Cain’s house at 6:45 a.m. on October 28, 1981.

Movant testified that prior to the jury trial he told attorney Sterling that Debbie Ebbinger and Cathy Cain would testify that movant was at Cathy’s house between 6:30 a.m. and 7:00 a.m. on October 28,1981.

In its order denying the motion, the trial court said:

“Here, Movant has failed his burden in at least two (2) respects. First, despite that he now alleges the existence of alibi witnesses, in considering their testimony, it is highly improbable that Movant would have had what he calls a ‘viable defense.’ That is, when considering the likelihood of bias, interest or prejudice for the Movant, the blood relatives and girl friend of Movant would not likely have favorably influenced the jury who heard this case. Secondly, it is purely speculative for Movant to assume that a different outcome would have resulted had a jury [heard] what he now says are alibi witnesses.” (Emphasis added.)

The trial court was not required to believe the testimony of movant or any other witness at the motion hearing, and that is true although the testimony of mov-ant and his witnesses was unopposed. Milligan v. State, 772 S.W.2d 736, 738[1] (Mo. App.1989). Milligan was a proceeding under Rule 27.26, now repealed, the predecessor of Rule 29.15. The same principle applies to proceedings under Rule 29.15.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Van v. State
990 S.W.2d 683 (Missouri Court of Appeals, 1999)
State v. Tubbs
806 S.W.2d 746 (Missouri Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
779 S.W.2d 17, 1989 Mo. App. LEXIS 1408, 1989 WL 112163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cornman-v-state-moctapp-1989.