Hannah v. State

816 S.W.2d 1, 1991 Mo. App. LEXIS 1028, 1991 WL 113990
CourtMissouri Court of Appeals
DecidedJune 28, 1991
DocketNo. 58685
StatusPublished
Cited by8 cases

This text of 816 S.W.2d 1 (Hannah 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
Hannah v. State, 816 S.W.2d 1, 1991 Mo. App. LEXIS 1028, 1991 WL 113990 (Mo. Ct. App. 1991).

Opinion

PUDLOWSKI, Presiding Judge.

The facts of this case have been fully developed in State v. Hannah, 691 S.W.2d 345 (Mo.App.1985); thus we need address only the necessary procedural facts as follows. Appellant, David Hannah, (hereinafter Hannah), was found guilty in a jury trial of sodomy, § 566.060.1 RSMo cum. supp. 1984; forcible rape, § 566.030.1 RSMo cum supp. 1984; felonious restraint, § 565.120 RSMo 1978; and armed criminal action, § 571.015 RSMo 1978, on May 10, 1984. Appellant was sentenced to three years imprisonment for felonious restraint, a concurrent three years for armed criminal action, a consecutive thirty years for sodomy> and life imprisonment for rape to be served concurrently with the thirty years for sodomy, but consecutively to the other terms of imprisonment. This court affirmed. Hannah’s conviction and sentence in State v. Hannah, 691 S.W.2d 345 supra.

On August 17, 1987, Hannah filed a pro se Rule 27.26 motion to vacate, correct or set aside the judgment and sentence. On August 19, 1987, the Office of the Special Public Defender appointed James McKay (hereinafter McKay) to represent Hannah. On May 22, 1989, McKay filed an amended motion for post-conviction relief under 27.26 and requested an evidentiary hearing on behalf of Hannah.

On October 6, 1989, an evidentiary hearing was held. On June 5, 1990, findings of fact, conclusions of law and an order denying Hannah’s Rule 27.26 motion were filed. Subsequently, Hannah filed this appeal.

In the first point on appeal, Hannah contends that the motion court erred in not finding ineffective assistance of counsel because Hannah’s trial counsel permitted suppressed prejudicial evidence to be intro[3]*3duced and commented upon without objection or without proper preservation of the point on appeal. Specifically, Hannah contends that his defense counsel failed to object to a police officer’s testimony that the police officer failed to execute and secure a search warrant, thus permitting the prosecutor to comment upon it in his closing argument and that as a result of this failure this court on direct appeal failed to find any prejudice or error in the prosecutor’s opening and closing arguments. Even though this court on direct appeal stated that Hannah’s defense counsel’s failure to object to the police officer’s testimony waived any valid objections by Hannah to the prosecutor’s argument based on that testimony, this court, nevertheless, expressed additional reasons for finding that this information had not caused Hannah prejudice sufficient to warrant a mistrial. State v. Hannah, 691 S.W.2d 345, supra at 349. We stated, first, that neither the opening statement or the closing argument indicated that the police officer had entered the apartment; second, that Hannah’s objections were sustained and as to the closing argument the jury was instructed to disregard the remark; and, third and moreover, that Hannah “was arrested outside of his apartment and it is equally possible that the jury would conclude that the police never entered the apartment.” Id.

Thus, circuitously, we are back to the same point addressed on direct appeal. This court has already considered the prejudicial effect of this information on Hannah’s trial and found that he did not suffer prejudice to warrant a mistrial. State v. Hannah, supra 691 S.W.2d 345, supra at 349. An issue previously considered on direct appeal cannot be relitigated in a post-conviction proceeding under Rule 27.26 and this is true even if the litigant has a different theory to suggest. Windle v. State, 669 S.W.2d 44, 46 (Mo.App.1984); Medley v. State, 639 S.W.2d 401, 404 (Mo.App.1982). See also O’Neal v. State, 766 S.W.2d 91, 92 (Mo. banc 1989). Further, the Missouri Supreme Court has held that “a claim raised and determined adversely to appellant on direct appeal cannot be re-litigated by attempting to transform the claim of ineffective assistance of counsel.” Clemmons v. State, 785 S.W.2d 524, 530 (Mo. banc 1990); Sidebottom v. State, 781 S.W.2d 791 (Mo. banc 1989). Point denied.

Hannah also contends that his defense counsel failed to object to specific evidence of a knife which had by agreement been suppressed, thus allowing the jury to hear prejudicial references to facts not properly in evidence. However, prior to this appeal, Hannah had failed to object to his defense counsel’s failure to object to this testimony. Hannah did not raise this claim in his pro se motion, in his amended motion, nor at this evidentiary hearing. Hannah’s failure to preserve this claim precludes appellate review. Boliek v. State, 755 S.W.2d 417, 418 (Mo.App.1988); cert. denied, 479 U.S. 903, 107 S.Ct 302, 93 L.Ed.2d 276 (1986); Williams v. State, 712 S.W.2d 404, 411 (Mo.App.1986). Thus, Hannah’s claim is procedurally barred and is hereby denied.

Hannah charges that the trial court erred in not finding ineffective assistance of counsel where his defense counsel failed to fully inform him of the possible severe consequences of the jury hearing of his prior convictions and thereafter elicited those convictions into evidence when Hannah testified. Hannah contends that he was prejudiced by the fact that one conviction, a juvenile conviction, which would not have been admissible against him was elicited before the jury and that he was prejudiced thereby.

However, in response to Hannah’s claims, the motion court found:

24. That prior to [Hannah’s] testifying [his defense attorney, Mary Dames Fox, hereinafter Fox] informed [Hannah] that if he did testify all his prior convictions would be elicited from him before the jury and that it would damage his credibility. That after weighing the options of testifying or not testifying movant chose to testify.
25. That [Hannah] informed [Fox] that among others he had a conviction from Tennessee but that he did not know if it was a juvenile or an adult. [Fox] [4]*4brought out the Tennessee convictions and all other convictions in her direct examination of [Hannah] because she was afraid that if it was an adult conviction and if she didn’t bring it out the prosecution would and movant would appear to be concealing a prior from the jury.

Generally, appellate review of a motion court’s decision in a Rule 27.26 proceeding is expressly limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 27.26(j); Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986).

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Bluebook (online)
816 S.W.2d 1, 1991 Mo. App. LEXIS 1028, 1991 WL 113990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hannah-v-state-moctapp-1991.