Haslip v. State

717 S.W.2d 533, 1986 Mo. App. LEXIS 4668
CourtMissouri Court of Appeals
DecidedSeptember 11, 1986
DocketNo. 14428
StatusPublished
Cited by10 cases

This text of 717 S.W.2d 533 (Haslip 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
Haslip v. State, 717 S.W.2d 533, 1986 Mo. App. LEXIS 4668 (Mo. Ct. App. 1986).

Opinion

PREWITT, Presiding Judge.

Following jury trial movant was convicted of first-degree murder and sentenced to life imprisonment. His conviction was affirmed on appeal. See State v. Haslip, 583 S.W.2d 225 (Mo.App.1979). Movant then filed a motion under Rule 27.26, seeking to vacate that conviction. Following an evi-dentiary hearing, the trial court made findings of fact, conclusions of law, and entered judgment denying the motion. Mov-ant appeals.

On appeal the review of a decision on a 27.26 motion is “limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous.” Rule 27.26(j). Only when we are left with a firm conviction that a mistake has been committed are such findings clearly erroneous. Covington v. State, 600 S.W.2d 186, 187 (Mo.App.1980). Movant has the burden of establishing his grounds for relief by a preponderance of the evidence. Rule 27.26(f).

Movant’s counsel has briefed and presented eight points for our consideration. Movant’s “pro se” brief filed thereafter presents three additional points. We discuss the points in the order presented, considering first those points in the brief prepared by movant's counsel.

Point one of the brief filed by movant’s counsel contends that the trial court erred because movant received ineffective assistance of counsel because his trial counsel “failed to file a timely motion for new trial, thereby precluding appellant’s right to a thorough and meaningful review of all issues on appeal.”

“To sustain a claim of ineffective assistance of counsel movant must establish that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability being a probability sufficient to undermine confidence in the outcome.” Tatum v. State, 693 S.W.2d 903, 904 (Mo.App.1985).

No motion for a new trial was filed by movant’s trial counsel following his conviction. As indicated by the record and mentioned in this district’s opinion affirming that conviction, State v. Haslip, supra, 583 S.W.2d at 226-227, this apparently occurred because following the verdict, mov-ant’s trial counsel no longer represented movant.

We have reviewed the record here and in the criminal case appeal and there is no [535]*535indication that the result in the trial court or here would have been different had a motion for new trial been filed. Based on the contentions raised on appeal in the criminal case and in this matter, the result would have been the same. This point is denied.

The second point presented in the brief filed by movant’s counsel states:

The hearing court clearly erred in finding that there was no evidence of subornation of perjured testimony by the prosecuting attorney in that testimony deliberately elicited at trial by the state from state’s witnesses Herb Weston, who stated no deal had been made for his testimony, was false; in actuality, an unrelated charge against Herb Weston was dismissed in exchange for his testimony. Said misconduct by the prosecuting attorney prejudiced appellant’s rights to due process and is contrary to the state’s ethical obligation to not offer false evidence.

The argument portion of the brief asserts that a charge in Greene County was to be dismissed in exchange for Weston’s testimony.

The facts on which movant’s point is premised do not exist. The record reflects that the prosecuting attorney asked whether a “deal” was made on a Newton County charge. The testimony regarding this was as follows:

Q. In addition to those convictions, Herb, you have been arrested in Newton County, haven’t you?
A. Yes.
Q. You have been charged with burglary and stealing in Newton County?
A. Yes, Sir.
Q. Has that charge been dismissed?
A. No.
Q. Is there any deal that you know of to dismiss that charge?
A. No.
Q. There is no deal?
A. No.

Later during the witness’ testimony he was asked about “deals” in a more general way. The transcript reveals the following:

“Q. Now, have any deals ever been offered to you in any way?
A. One.
Q. By whom?
A. Well, I don’t know who offered it. It was in Greene County.”

As a part of movant’s case at the criminal trial, an assistant prosecuting attorney of Greene County testified that a criminal case involving Weston pending in Greene County had been continued until after Weston’s testimony in the trial against movant.

The record does not show that the prosecutor brought out any false statement regarding any arrangements on charges against Weston. This point is denied.

In the third point stated in the brief filed by movant’s attorney, movant asserts that he was denied due process because evidence was admitted in the criminal trial regarding his intention to escape from jail. Assuming that this evidence was inadmissible, perhaps due to the hearsay manner in which it was presented or otherwise, it would be trial error and not of sufficient significance to be now raised in a motion to vacate the conviction. See Rule 27.26(b)(3).

It is sometimes difficult to distinguish “mere trial errors” from “trial errors affecting constitutional rights” as the magnitude of the error may be the factor which controls. Covington v. State, supra, 600 S.W.2d at 188. An issue which could have been raised on appeal, even though a constitutional claim, should only be allowed in a post-conviction motion in rare and exceptional circumstances when required by fundamental fairness. Id. Fundamental fairness does not require this issue to be raised here. This point is denied.

In the fourth point presented in the brief filed by movant’s counsel, it is stated that movant did not receive effective assistance of counsel as his trial counsel in the criminal matter failed to fully investigate a potential alibi defense.

[536]*536The record does not support this contention. To show ineffective assistance of counsel in failing to interview witnesses or otherwise investigate, it must be shown that such reasonable efforts would have aided movant’s position. Remington v. State, 682 S.W.2d 177, 179 (Mo.App.1984). The record does not establish that an investigation into the alibi defense would have aided movant’s defense. This point is denied.

Point five contained in the brief filed by movant’s counsel states that mov-ant was denied due process because the verdict directing instruction was erroneous. Ordinarily, instructional error is not properly raised in 27.26 motions and labeling it as constitutional error does not change that. Worthon v. State,

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Bluebook (online)
717 S.W.2d 533, 1986 Mo. App. LEXIS 4668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haslip-v-state-moctapp-1986.