Hanes v. State

825 S.W.2d 633, 1992 Mo. App. LEXIS 225, 1992 WL 25353
CourtMissouri Court of Appeals
DecidedFebruary 18, 1992
DocketNo. 58764
StatusPublished
Cited by8 cases

This text of 825 S.W.2d 633 (Hanes 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
Hanes v. State, 825 S.W.2d 633, 1992 Mo. App. LEXIS 225, 1992 WL 25353 (Mo. Ct. App. 1992).

Opinion

CRANE, Judge.

Movant William Hanes appeals from the order of the Circuit Court of St. Louis County following an evidentiary hearing which denied his Rule 27.26 motion for post-conviction relief. He asserts that he was denied effective assistance of counsel. We affirm.

Movant was convicted by a jury of capital murder in violation of § 565.001 RSMo 1980 [repealed]. The trial court sentenced him to life without the possibility of parole for fifty years. This sentence was vacated upon stipulation of the parties that mov-ant’s trial counsel was ineffective for failing to file a timely motion for new trial and notice of appeal. Movant was subsequently resentenced and filed a direct appeal. We affirmed the judgment of the trial court in State v. Hanes, 729 S.W.2d 612 (Mo.App.1987). Movant subsequently moved for relief under Rule 27.26 [repealed], alleging ineffective assistance of counsel. After an evidentiary hearing, the motion court filed its Findings of Fact, Conclusions of Law and Order denying relief. Movant appeals from this order.

Our review of an order denying post-conviction relief is limited to determining if the findings, conclusions and judgment of the motion court are clearly erroneous. Rule 27.26(j); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). The order is clearly erroneous only if a review of the entire record leaves this court with a definite and firm impression that a mistake has [635]*635been made. Jones v. State, 773 S.W.2d 156, 157-158 (Mo.App.1989); Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986).

In this appeal movant challenges the motion court’s rulings denying his several claims of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a movant must show, by a preponderance of the evidence, both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To prove deficient performance a movant must show that counsel’s acts or omissions were outside the range of professionally competent assistance. Id. In determining whether counsel’s performance was deficient, the inquiry must be whether, in light of all the circumstances, counsel’s assistance was reasonable. Jones, 773 S.W.2d at 158. In order to show prejudice, a movant must show there was a reasonable probability that, but for the errors by movant’s attorney, the jury would have had a reasonable doubt respecting movant’s guilt. State v. Childers, 801 S.W.2d 442, 447 (Mo.App.1990).

For his first point movant contends that he received ineffective assistance of counsel because his counsel failed to file a motion in limine to exclude evidence of a plot by movant to kill his wife in order to collect insurance proceeds. Movant further claims that his counsel was ineffective for failing to request a corrective instruction or a mistrial after the prosecutor repeatedly attempted to elicit this evidence.

These contentions were not raised in movant’s 27.26 motion and were not addressed by the motion court in its findings. Although at the evidentiary hearing trial counsel did testify that he had not filed a motion in limine, this testimony standing alone did not raise the issue for consideration by the trial court. Because the motion court did not have an opportunity to consider this contention we decline to review it. Mallett v. State, 716 S.W.2d 902, 905 (Mo.App.1986).

In addition, the relevancy and prejudicial effect of this evidence was raised on direct appeal. Hanes, 729 S.W.2d at 619. We found that movant’s trial counsel objected successfully to most of this evidence and, in any event, the line of questioning was relevant to establish motive. We held that no manifest injustice resulted from the prosecuting attorney’s questions and the elicited answers. An issue previously considered on direct appeal cannot be relitigated in a post-conviction proceeding by transforming it into a claim of ineffective assistance of counsel. Hannah v. State, 816 S.W.2d 1, 3 (Mo.App.1991). A finding that a defendant has not suffered manifest injustice under the plain error rule serves to conclusively establish a finding of no prejudice under the test for ineffective assistance of counsel. Clemmons v. State, 785 S.W.2d 524, 530 (Mo. banc 1990). Point one is denied.

Movant next claims he was denied effective assistance of counsel because his trial counsel failed to call his mother as a witness. Movant contends that his mother's testimony would have impeached that of Clayton police captain James Humphrey. Humphrey testified that while movant was in police custody he telephoned his mother, told her where to find some stolen property and told her to give it to the police. He testified that movant also stated “No, mom, that is not all. It’s worse. Please tell Allison to bring my medication and please send my prayerbook and pray for me.” Humphrey further testified that that was the extent of the conversation. In closing argument the state characterized this conversation as a confession and pointed out that movant did not tell his mother that he did not do it. At the motion hearing movant’s mother testified:

Bill had asked me on the phone, “Will you please bring my medicine or have Allison bring my medicine and my prayer book to the County Jail,” and I said, “Yes.” Then I said Bill, I said, “Is that all?” And Bill says, “Oh, Mom, Mom,” and he says, “They’re accusing me.”

Movant contends his counsel was ineffective in not calling his mother at trial [636]*636to testify to her version of that conversation. To demonstrate ineffectiveness in failing to call a witness to testify, a movant must establish that the attorney’s failure to call the witness was something other than reasonable trial strategy. Terry v. State, 770 S.W.2d 723, 724 (Mo.App.1989). In addition, a movant must establish that the witness could have been located through reasonable investigation, that he would have testified if called and that his testimony would have provided a viable defense. Childress-Bey v. State, 779 S.W.2d 697, 699 (Mo.App.1989). Movant cannot demonstrate that trial counsel’s failure to call movant’s mother was something other than reasonable trial strategy. Trial counsel had had numerous conversations with the mother, and told her to remain outside the courtroom in case he decided to call her to testify. The choice of witnesses and defense tactics are ordinarily matters of trial strategy and will not support a claim of ineffective assistance of counsel. Hannah, 816 S.W.2d at 4. A decision not to call a witness is virtually unchallengeable. Childress v. State,

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Bluebook (online)
825 S.W.2d 633, 1992 Mo. App. LEXIS 225, 1992 WL 25353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanes-v-state-moctapp-1992.