Glover v. State

7 S.W.3d 526, 1999 Mo. App. LEXIS 2213, 1999 WL 1032602
CourtMissouri Court of Appeals
DecidedNovember 16, 1999
DocketNo. WD 56579
StatusPublished
Cited by2 cases

This text of 7 S.W.3d 526 (Glover 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
Glover v. State, 7 S.W.3d 526, 1999 Mo. App. LEXIS 2213, 1999 WL 1032602 (Mo. Ct. App. 1999).

Opinion

JAMES M. SMART, Jr., Judge.

Appellant Galen Glover was convicted of first degree robbery and armed criminal action after a jury trial. His Rule 29.15 motion for post-conviction relief was denied by the trial court. Appellant appeals this denial of his 29.15 motion, claiming that the motion court clearly erred because he was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 18(a) of the Missouri Constitution. Glover argues that his attorney’s failure to fully cross-examine witnesses as to possible collusion in identifying a photograph of Glover constituted ineffective assistance of counsel. We hold that the motion court’s ruling was not clearly erroneous and affirm the motion court’s denial of Glover’s Rule 29.15 motion.

Factual Background

On the evening of May 23, 1995, at approximately 9:30 p.m., Brad and Cheryl Williams were robbed at gunpoint while they were out for a walk in their neighborhood in Gladstone, Missouri. A man approached the couple from behind, stopped in front of them and told them to give him their money. They told him that they did not have any money on them. At that point, another man drove up behind them, stopped the car (leaving the headlights on), got out and approached the three of them. He had a gun and appeared to be with the other man. He told Mr. Williams to give him his wallet, and Mr. Williams eventually did. The two men told Mr. and Mrs. Williams to run in the opposite direction.

The next day, the appellant, Galen Glover, along with two other men, attempted to use Mr. Williams’ Montgomery Wards credit card at a Montgomery Wards store in Overland Park, Kansas. Upon determining that the credit card had been stolen, the loss prevention manager at the store detained Glover and one of his companions, Galen Horton, and called the Overland Park Police Department. Glover had several of Mr. Williams’ credit cards in his possession, along with other items such as insurance cards.

A few days after Glover’s arrest, a Gladstone police officer prepared two separate photo lineups for Mr. and Mrs. Williams to use in the identification of the perpetrators of the robbery. Both photo lineups contained six photographs. One included a photograph of Glover, and the other included a photograph of Horton.

Mr. and Mrs. Williams were shown the two photo lineups at different locations and at different times. Mr. Williams identified Horton from the second photo line-up, but did not identify Glover in the first photo lineup. Instead, he identified a photograph of a man named Michael Franklin as one of the participants. Mrs. Williams, on the other hand, tentatively identified Glover from his photo lineup, but was unable to identify Horton.

At Mr. Williams’ deposition, eleven months later, Mr. Williams was again shown the photo lineup with Glover’s photograph. At that time, he identified the photograph of Glover as one of the men who had robbed him. Both Mr. and Mrs. Williams identified Glover at trial.

At trial, Glover’s defense attorney asked Mr. Williams why he was able to identify Glover’s photograph eleven months after the robbery when he was unable to do so a few days after the robbery. Mr. Williams answered that it was because of the “size of the person’s lips.”

After Glover’s conviction, Glover filed a Rule 29.15 post-conviction motion. In that motion, he contended that counsel failed to question Mr. or Mrs. Williams about the possibility that Mrs. Williams had told Mr. Williams which photograph she had correctly identified as the suspect’s photograph. Appellant argued that because of his attorney’s failure to cross-examine the Williamses on this point, he suffered from ineffective assistance of counsel. The motion court denied Glover’s motion. The motion court ruled that the failure to [528]*528cross-examine could be regarded as acceptable trial strategy.

Glover appeals the motion court’s determination on this issue.

Standard of Review

In order to defeat a motion court’s denial of a Rule 29.15 motion for post-conviction relief, the appellant has the burden of proving by a preponderance of the evidence that the trial court’s ruling was “clearly erroneous.” Rule 29.15(k), State v. Nolan, 872 S.W.2d 99, 104 (Mo. banc 1994). In order to find the trial court’s ruling clearly erroneous, this court must be under the “definite and firm impression that a mistake has been made.” State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).

Ineffective Assistance of Counsel

Glover’s sole point on appeal is that he was denied effective assistance of counsel because of his trial attorney’s failure to cross-examine the Williamses on the issue of whether they discussed their photographic identifications of Glover with each other. In order to prove ineffective assistance of counsel, Glover must meet the two prongs of the Strickland test originally set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Missouri Supreme Court in Sanders v. State, 738 S.W.2d 856, 857-58 (Mo. banc 1987). A movant 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 this failure resulted in prejudice to the defendant. State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991). Should a movant fail to satisfy either prong of the test, the other need not be considered. State v. Whitfield, 939 S.W.2d 361, 369 (Mo. banc 1997).

Glover contends that his attorney did not display the customary skill and diligence that a reasonably competent attorney would exercise because he did not question the witnesses at trial with regard to whether they discussed the identification photographs. He argues that since the witnesses are husband and wife, it should have occurred to counsel that they may at some point have discussed their individual viewings of the photo lineups. He further asserts that because Mrs. Williams had been told by police, that she had successfully identified one of the persons in custody, it is conceivable that Mrs. Williams told Mr. Williams which photograph she had picked from Glover’s lineup. Glover’s argument is that a reasonably competent attorney would have cross-examined on this point.

At the motion hearing, Glover’s counsel testified that his failure to ask during the trial whether Mr. and Mrs. Williams discussed the photographs was a mistake on his part. Glover’s motion attorney also questioned Mr. and Mrs. Williams at the motion hearing as to whether they had discussed the photo lineup identifications between themselves. Both denied that they had done so. Mr. Williams also denied having ever discussed the facts of the case with his wife in any detail.

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Bluebook (online)
7 S.W.3d 526, 1999 Mo. App. LEXIS 2213, 1999 WL 1032602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glover-v-state-moctapp-1999.