Floyd v. State

77 S.W.3d 98, 2002 Mo. App. LEXIS 1356, 2002 WL 1286509
CourtMissouri Court of Appeals
DecidedJune 12, 2002
DocketNo. 24595
StatusPublished
Cited by3 cases

This text of 77 S.W.3d 98 (Floyd 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
Floyd v. State, 77 S.W.3d 98, 2002 Mo. App. LEXIS 1356, 2002 WL 1286509 (Mo. Ct. App. 2002).

Opinion

ROBERT S. BARNEY, Chief Judge.

Richard Dean Floyd (Movant) appeals from a judgment of the Circuit Court of Greene County denying, without an evi-dentiary hearing, his amended Rule 29.15 motion to vacate, set aside or correct a prior judgment and sentence for first degree murder, § 565.020.1 RSMo 1994.1 In his criminal trial, Movant received a life sentence without the possibility of parole for the strangulation death of his wife. See State v. Floyd, 18 S.W.3d 126 (Mo.App.2000).

Movant’s sole point on appeal asseverates that the trial court erred in dismissing his motion without an evidentiary hearing. He maintains he pled factual allegations not refuted by the record, which if proven, would warrant relief because he was preju-dicially denied assistance of counsel during the course of his trial. In particular, he complains that he received ineffective assistance of counsel when his attorney failed to object or request a mistrial in response to the prosecutor’s assumption of various facts not in evidence when three of his character witnesses were cross-examined. Rule 29.15(h)2 states that an evi-dentiary hearing is not required when “the motion and the files and records of the case conclusively show that the movant is entitled to no relief ....” “No evidentiary hearing will be required unless the motion meets three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters of which movant complains must have resulted in prejudice.” State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997); State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993).

The judgment of the motion court denying post-conviction relief will not be disturbed by this Court unless we determine that its finding and conclusions are clearly erroneous. Salazar v. State, 66 S.W.3d 755, 758 (Mo.App.2001); Cardona-Rivera v. State, 33 S.W.3d 625, 626 (Mo.App.2000). The motion court’s ruling is determined to be clearly erroneous only if review of the entire record leaves us with a definite and firm impression that a mistake has been made. Salazar, 66 S.W.3d at 758; Sitton v. State, 17 S.W.3d 917, 920 (Mo.App.2000).

In reviewing claims of ineffective assistance of counsel, the appellate court examines “whether appellant has established below that his counsel’s performance failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney, and that the defendant was thereby prejudiced.” Honeycutt v. State, 54 S.W.3d 633, 639 (Mo.App.2001). In order to prevail on a claim of ineffective assistance of counsel, a movant must show: (1) that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and (2) counsel’s deficient performance prejudiced the defense. See id.; Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). Under the analysis set forth in Strickland, prejudice is shown where there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Honeycutt, 54 S.W.3d at 639-40 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Moore v. State, 827 S.W.2d 213, 215 (Mo.[101]*101banc 1992) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). There is a strong presumption that trial counsel was competent. Galindo v. State, 30 S.W.3d 900, 902 (Mo.App.2000).

If it is easier to dispose of an ineffective assistance of counsel claim on the ground there was not sufficient prejudice, a court should follow that course. Sidebottom v. State, 781 S.W.2d 791, 796 (Mo.banc 1989). There is no reason for a court to address both components of the test if the Movant fails to make a sufficient finding on one. Id.

“[T]o establish a claim of ineffective assistance of counsel for failing to object, a Movant must show that the objection would have been meritorious and that the failure to object resulted in a substantial deprivation of Movant’s right to a fair trial.” Dodds v. State, 60 S.W.3d 1, 5 (Mo.App.2001) (emphasis added).

Movant argues that it is improper and prejudicial for a prosecutor to phrase questions on cross examination so as to assume facts which are not in evidence. He maintains there is a general requirement of fairness in cross-examination, and if there is no basis of fact for a question on cross-examination, it should not be asked. He cites State v. Creason, 847 S.W.2d 482 (Mo.App.1993), for the proposition that there are limits on a prosecutor’s right of cross-examination and that a prosecutor crosses the line “when the questions are asked merely for the ... purpose of going into collateral details.” Id. at 486.

He points to the following colloquy on cross examination of one of his character witness by the prosecutor, where his trial counsel should have posed objections based on the prosecutor’s illegal assumption of facts. Movant contends that had his trial counsel objected to the questions posed, such objections would have been meritorious, to-wit:

Elizabeth Bock [prosecutor]: Did you know that Mr. Floyd was unhappy in his marriage?
Mr. Wampler [defense counsel]: I’ll object to the form of the question, Your Honor, did you know that, assuming that it is true. It’s an improper question.
The Court: The objection will be sustained as to that form.
Prosecutor: You’ve testified that you observed Mr. Floyd and it was your opinion that he was very loving and attentive to his wife; is that correct?
Mr. James Robert Stalnaker [character witness]: Yes
Prosecutor: Would your opinion change if you knew that he was unhappy in his marriage and he’d told people he was unhappy in his marriage?
Witness: Based upon what I had observed, just in seeing Sherri and Richard together, no, that would not change my opinion.
Prosecutor: My question was, though, would your opinion change, not on your observations, but if you knew that he’d told people he was unhappy in his marriage, not ever having discussed that with him?
Witness: I never discussed that with him, and I never had any knowledge as to him being unhappy, so I — I can’t say that would change my opinion of Richard.

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Related

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99 S.W.3d 571 (Missouri Court of Appeals, 2003)
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99 S.W.3d 21 (Missouri Court of Appeals, 2003)

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Bluebook (online)
77 S.W.3d 98, 2002 Mo. App. LEXIS 1356, 2002 WL 1286509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/floyd-v-state-moctapp-2002.