Garrison v. State

992 S.W.2d 898, 1999 Mo. App. LEXIS 573, 1999 WL 262054
CourtMissouri Court of Appeals
DecidedMay 4, 1999
DocketNo. 74486
StatusPublished
Cited by4 cases

This text of 992 S.W.2d 898 (Garrison 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
Garrison v. State, 992 S.W.2d 898, 1999 Mo. App. LEXIS 573, 1999 WL 262054 (Mo. Ct. App. 1999).

Opinion

KENT E. KAROHL, Judge.

Movant appeals denial of Rule 29.15 post-conviction relief after an evidentiary hearing. We affirmed conviction and sentencing on two related felonies. State v. Garrison, 943 S.W.2d 847 (Mo.App. E.D.1997).

We adopt the statement of facts reviewed in the direct appeal. Movant’s first three claims of motion court error relate to allegations his trial counsel was ineffective: (1) because he failed to present testimony of available witnesses, movant’s brother and sister, to support an allegation movant was arrested as a result of a warrantless, non-consensual entry; (2) because he failed to make an offer of proof to demonstrate that a hearsay objection by the state was erroneously sustained; and, (3) because he failed to effectively impeach the state’s primary witness by use of a prior inconsistent statement. These points are without merit.

Movant alleged in paragraph 7(c) of his amended motion that trial counsel was ineffective for failing to present testimony from witnesses which would have “impeached” state’s evidence and provided movant with a defense. Movant’s trial counsel filed a motion to suppress because the police entered without a warrant and without permission. The state offered the testimony of arresting officers to support a finding they entered the home where defendant was arrested with permission of an occupant. Defendant was found hiding in a closet. Subsequently, his shoes were seized. During the trial, the state had the benefit of an inference of guilt from his conduct and incriminating evidence obtained from his shoes. Counsel offered no witnesses in support of the allegation that the police entered without permission. Defendant’s brother and sister were known and available to testify in support of the allegation, but not called to testify at the pre-trial hearing.

Movant has overlooked the fact that the conduct of trial counsel at the suppression hearing is not the subject of the allegations of ineffective assistance of counsel in the Rule 29.15 motion. The post-conviction motion alleges trial counsel was ineffective “because the jury failed to hear evidence [which] would have contradicted the testimony of the state’s witnesses.” The trial court refused trial counsel’s request to reopen the suppression hearing at the time of trial. Ineffectiveness in handling a motion to suppress is cognizable as a post-conviction issue. Adams v. State, 677 S.W.2d 408, 411-12 (Mo.App.1984). However, the issue in the present case is not ineffective assistance of counsel during the suppression hearing. We review the decision of the Rule 29.15 motion court. Counsel was not ineffective during the trial. Moreover, the testimony of movant’s brother and sister in support of the motion to suppress would have created a legal dispute for the trial court, and not a matter for the jury as alleged in the motion. The testimony would only present a question of fact for the trial court based upon the opposing evidence offered by the arresting officers and contradicted by movant’s relatives. It is unlikely the result would have been different.

We conclude the finding of the motion court was not clearly erroneous. State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996), cert. denied, 519 U.S. 933, 117 S.Ct. 307,136 L.Ed.2d 224 (1996); Rule 29.15(k). [901]*901The evidence presented at the Rule 29.15 hearing will not support a finding the conduct of counsel denied movant a fair trial and, thus, prejudiced the result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Point denied.

During cross-examination of the state’s eyewitness, Tyrone Tipton, trial counsel obtained his testimony that, when interviewed by a police officer, he formed the belief that movant made him a suspect in the murder. Counsel then asked Tipton what the officer told him about movant’s statement that accused him. The state objected on hearsay grounds. The trial court sustained the objection. The purpose of the inquiry was to show that Tip-ton had a motive to be untruthful because the interviewing police officer told him that movant was accusing him of the crimes. The question was directed at offering evidence of the witness’ state of mind and his motive to testify against mov-ant in retaliation for impheating him. For that purpose, the question would not call for hearsay. State v. Chambers, 891 S.W.2d 93,104 (Mo. banc 1994). However, we rejected this matter as error on the direct appeal because movant failed to make an offer of proof “to establish how Tipton’s statement would demonstrate his motive to lie.” Garrison, 943 S.W.2d at 851. Movant did not offer evidence on the nature of Tipton’s statement if he were permitted to answer. Movant argues his trial counsel was ineffective for failure to make the offer of proof.

We reject this claim of error for several reasons. First, there was no evidence offered to the motion court to support a finding that Tipton’s excluded answer could, have or would have, changed the outcome of the trial. Movant must offer evidence to support a finding that he was prejudiced by the failure to make the offer of proof. The burden is upon mov-ant. State v. Tucker, 866 S.W.2d 932, 934 (Mo.App. E.D.1993). On the contrary, there is a basis for finding that trial counsel’s failure to make the offer of proof had no prejudicial effect. Prior to the hearsay objection and the failure to make an offer of proof, the answer which movant sought was previously given. Tipton already testified the officer told him why he was a suspect, that movant told the officer Tip-ton was at the scene of the crimes, not movant. The ruling of the trial court and the conduct of counsel did not deprive movant of an opportunity to argue to the jury that Tipton had a motive to testify untruthfully against movant. Point denied.

Third, movant argues that his trial counsel was ineffective for failing to impeach Tipton by utilizing conflicting statements on one issue. Tipton testified he could not remember what movant did with the pillowcase full of bloody items. Mov-ant alleged, and argues, his counsel was ineffective for failing to impeach Tipton with a prior inconsistent statement where he said movant' deposited the pillowcase with the body when it was dumped. Mov-ant argues, as a preliminary matter, that the trial court made insufficient findings to permit a review of this issue, a violation of Rule 29.15(j). The motion court found, generally, that trial counsel effectively cross-examined Tipton regarding his deposition and prior oral and tape-recorded statements.

The finding is sufficient to cover an allegation that counsel was ineffective because he failed to impeach Tipton on one of many conflicting prior statements. Counsel used Tipton’s prior recorded statements and deposition to highlight numerous inconsistencies in his statements. When later questioned, counsel could not recall if he effectively impeached Tipton at trial with statements regarding the pillowcase. However, counsel testified “[tjhere were so many inconsistencies in his statements.

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Bluebook (online)
992 S.W.2d 898, 1999 Mo. App. LEXIS 573, 1999 WL 262054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrison-v-state-moctapp-1999.