Gully v. State

81 S.W.3d 651, 2002 Mo. App. LEXIS 1166, 2002 WL 1052025
Missouri Court of Appeals·Decided May 28, 2002·No. Nos. 24558, 24559·Published·Cited by 2 cases

Opinion

NANCY STEFFEN RAHMEYER, Judge.

William 0. Gully (“Movant”) was convicted of two counts of driving while intoxicated (“DWI”), with each count tried before a separate jury. In this consolidated appeal, Movant appeals the denial of two Rule 29.151 motions for post-conviction relief. Within the motions, which were consolidated for hearing purposes and addressed together by the motion court, Movant alleged that his trial counsel was ineffective for failing to call a particular witness at each of the trials. The motion court denied Movant’s claims of ineffective assistance of counsel. We affirm.

On August 27, 1998, Movant was charged by information with two counts of DWI in violation of § 577.010.2 Count I related to an incident that occurred on April 27, 1997, and Count II to an earlier incident on April 9, 1997. On Movant’s motion, the counts were severed and tried separately. Movant was represented by the same counsel (“Counsel”) at both trials.

Count II for the April 9, 1997 incident proceeded first to trial on December 8, 1998, and Officer Mark Sears of the Springfield Police Department was the sole witness to testify. Officer Sears testified that at approximately 1:30 a.m. on April 9, 1997, he encountered Movant and a woman arguing on the roadside along Kansas Expressway. During his fifteen to twenty-minute contact with the couple, Officer Sears noted several signs that Mov-ant was intoxicated. According to Officer Sears, Movant’s speech was slurred, he “almost reeked of alcohol,” he stumbled and nearly fell as he walked toward the officer, his balance was unsteady, and his eyes were bloodshot and glassy. In addition, Movant informed Officer Sears that he had been drinking beer at a local bar that evening.

Based on the officer’s determination that Movant’s level of intoxication would preclude him from safely operating a motor vehicle, as well as the couple’s decision not to share a cab, Officer Sears called separate cabs for them. Approximately twenty minutes later, while Officer Sears was in a nearby parking lot completing paperwork, he noticed Movant exit from a car that pulled up to the earlier scene, enter the vehicle that had been left at that scene, and begin to drive away. Officer Sears pulled over the vehicle and placed Movant under arrest. Officer Sears testified that, in addition to exhibiting the previously listed signs of intoxication, Movant failed the horizontal eye gaze nystagmus test. Officer Sears then transported Movant to the Springfield city jail, where Movant refused to submit to a chemical breath test.

The jury found Movant guilty of DWI, and he was sentenced as a prior and persistent offender to a term of seven years’ imprisonment. Movant’s conviction was affirmed following a direct appeal of the case.

In Movant’s Rule 29.15 motion to vacate, set aside, or correct his judgment/sentence following the first trial, he alleged that he received ineffective assistance of counsel because Counsel failed to call Patricia Gully, Movant’s mother, as an exculpatory witness. In particular, Movant claimed that Ms. Gully would have testified that he lived at her residence, that he was in and out of the residence several times on the evening in question, and that he arrived in a cab and borrowed $20 from her some[653] time between midnight and 1:00 a.m. on that night. Movant further claimed that Ms. Gully would have testified that she had seen him intoxicated on several occasions and that he exhibited no signs of intoxication when she saw him that evening. Movant also alleged that his mother was willing and available to testify and that Movant informed Counsel of her exculpatory testimony, but that no one from Counsel’s office ever contacted Ms. Gully.

Regarding calling Ms. Gully at the first trial, Counsel testified that Movant had not provided any information about his mother being a potential witness for this particular trial. Movant had mentioned his mother as a potential witness for an unrelated drug possession case, but Mov-ant also specifically told Counsel that he did not want his mother involved in that case. Ms. Gully testified that Movant kept coming in the house that night, waking her up each time as she was attempting to sleep on the couch, and that he had woken her up to ask for money to pay for a cab at some point. She also testified that she had seen Movant intoxicated on many occasions, but on that particular night she saw no signs of slurred speech, glassy eyes, or inability to keep his balance. Ms. Gully testified that she had not been contacted by Counsel’s office, but would have been willing and able to testify if someone had contacted her.

The second trial, which addressed Count I and the April 27, 1997 incident, took place in April of 1999. At this trial, Corporal Steve Kiser of the Springfield Police Department testified that at approximately 1:30 a.m. on April 27, 1997, he witnessed Movant driving erratically. After stopping Movant based on his suspicion that Movant might be intoxicated, Corporal Kiser testified that Movant immediately exited his vehicle, threw what appeared to be the keys to the vehicle over the top of the car, appeared agitated, and walked toward Corporal Kiser in “an aggressive manner.” Corporal Kiser repeatedly ordered Movant to get down on the ground, Movant finally complied, and he was handcuffed. Corporal Kiser testified that Movant appeared unsteady, emitted a strong odor of intoxicants, and exhibited slurred speech.

Officer Brad Boydston, a DWI enforcement officer for the Springfield Police Department, testified that he was dispatched to the scene and took over the investigation once he arrived. During Officer Boydston’s contact with Movant, the officer noticed Movant’s strong odor of intoxicants, slurred speech, and bloodshot and glassy eyes. Officer Boydston noticed the strong odor of intoxicants both on Mov-ant’s person and his breath. Movant also had difficulty standing still and maintaining his balance. When Officer Boydston requested that Movant take some field sobriety tests, Movant responded, “I ain’t taking any-test.” Movant was subsequently placed under arrest for DWI and transported to the Springfield city jail. Officer Boydston also testified that during the transfer of Movant to the jail, the odor of intoxicants emitting from Movant was so strong that the officer had to roll down the windows. Once at the jail, Movant refused to submit to a chemical breath test.

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Gully v. State, 81 S.W.3d 651, 2002 Mo. App. LEXIS 1166, 2002 WL 1052025 (Mo. Ct. App. 2002).

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