Henderson v. State

789 S.W.2d 498, 1990 Mo. App. LEXIS 722, 1990 WL 60810
Missouri Court of Appeals·Decided May 9, 1990·No. No. 56774·Published·Cited by 6 cases

Opinion

STEPHAN, Judge.

Thomas Henderson appeals from the judgment denying his Rule 29.15 motion without an evidentiary hearing. We affirm.

Movant was convicted by a jury of attempted kidnapping in violation of § 564.011, RSMo 1986, and was sentenced as a prior and persistent offender to fifteen years’ imprisonment. His sentence and judgment were affirmed on direct appeal in State v. Henderson, 743 S.W.2d 583 (Mo.App.1988).

Movant has raised thirteen points on appeal. Our review is limited to determining whether the findings, conclusions and judgment of the motion court are clearly erroneous. Rule 29.15(j); Taylor v. State, 782 S.W.2d 741, 743 (Mo.App.1989). In his first point movant contends the motion court’s finding that the substitute information in lieu of an indictment sufficiently charged him with the felony of attempt to kidnap was clearly erroneous. Such findings and conclusions are clearly erroneous only if, upon review of the entire record, an appellate court is left with the definite and firm impression that a mistake has been made. Taylor, 782 S.W.2d at 743.

The substitute information charged in pertinent part as follows:

That Thomas Henderson at the City of St. Louis, State of Missouri, aforesaid that, in violation of Section 564.011, RSMo, committed the class C felony of an attempt to commit the offense of kidnapping, punishable upon conviction under Section 558.011, RSMo, in that on the 1st day of September, 1985, the defendant followed Vadia Travis in his car, pointed a gun at her and ordered her to get into his car, and such conduct was a substantial step toward the commission of the crime kidnapping, and was done for the purpose of committing such kidnapping.

In challenging the sufficiency of the substitute information in his 29.15 motion, mov-[501]*501ant stated the substitute information “alleged no attempt to remove or confine Va-dia Travis and further alleged no required purpose for the removal or confinement”, and "Additionally, the mentioned elements in the information, namely, following, pointing a gun, and ordering into a car, do not by law amount to a ‘substantial step’ toward the commission of the object crime of kidnapping.”

The motion court cited Franklin v. State, 655 S.W.2d 561 (Mo.App.1983), as authority in deciding the merits of the attack on the sufficiency of the information. Franklin requires the indictment or information must be so defective that by no reasonable construction can it be said to charge the offense for which movant was convicted. Id. at 563. The motion court also noted that the evidence had been held sufficient to support the verdict in the direct appeal. The motion court found the information sufficient under the Franklin test.

The gist of appellant’s complaint is that the attempt statute requires an actual and specific attempt to make or perform each and every element of the completed crime. Movant misreads the attempt statute. Section 564.011 provides that “[a] person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense." (Emphasis added.) The information here clearly alleged conduct constituting a substantial step toward kidnapping. In charging the inchoate offense of attempt, the state may not need to be as explicit and specific as it must be in charging the complete crime. Jackson v. State, 760 S.W.2d 505, 506 n. 1 (Mo.App.1988).

Rule 23.01(e) provides that “[a]ll indictments or informations which are substantially consistent with the forms of indictments or informations which have been approved by this [Missouri Supreme] Court shall be deemed to comply with the requirements of this Rule 23.01(b)”, the rule governing indictments and informations. The information in this case tracked MACH-CR 18.02 approved by the Missouri Supreme Court. We agree with the motion courts ruling that the information was sufficient under Franklin. Point one is denied.

In point two, movant pronounces his trial counsel ineffective for not renewing at his retrial a motion to suppress identification previously denied in appellant’s first trial which had ended in a mistrial. The issue of identification, however, was raised and decided on its merits against movant in his direct appeal. 743 S.W.2d at 585-86. Even without the motion to suppress having been refiled, this court on direct appeal examined the validity of the identification. Thus, movant suffered no prejudice from his trial counsel’s failure to refile the motion to suppress. Despite counsel’s efforts in this proceeding, the attempt to obtain a second review of that same issue in mov-ant’s behalf under the claim of ineffective assistance of counsel is in vain. Accord, O’Neal v. State, 766 S.W.2d 91, 92 (Mo. banc 1989) cert. denied — U.S. -, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989). Point denied.

Movant’s third point declares the motion court erred in finding trial counsel was not ineffective for failing to use prior inconsistent statements given by victim in a deposition to impeach her trial testimony that movant pointed a gun at her and threatened her. Movant contends that in her deposition victim did not give the specific detail that appellant “pointed a gun or threatened to shoot her.” The motion court observed that the deposition reflected victim was not asked whether movant pointed a gun at her or threatened to shoot her. The motion court determined that victim did not make an inconsistent statement in her deposition. We have reviewed both the trial transcript and deposition and agree with the motion court. Point denied.

Movant’s fourth point raises two issues. He first challenges the motion court’s finding that counsel was not ineffective in impeaching victim’s identification of movant in the line-up photograph. In victim’s deposition, she identified her assailant as third from the left in the picture of the four-man physical line-up. At trial, she testified he was second from left. The [502]*502motion court reviewed the trial transcript, as we have, and found that counsel did, in fact, attempt to impeach victim concerning her line-up identification. Moreover, at trial victim freely admitted that she had given those answers at her deposition but explained during redirect examination that she had mixed up their left with hers during her deposition. The motion court correctly decided movant’s trial counsel was not ineffective in this regard.

The second prong of movant’s claim in his fourth issue argues that the motion court incorrectly found counsel was not ineffective for failing to request the trial court to give an oral cautionary instruction to the jury that they could consider as substantive evidence the subject matter impeached by the inconsistent statement. The motion court noted the Rule 29.15 motion failed to mention any cite for such instruction and the court found no such oral instruction in the MAI-CR3d series.

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Henderson v. State, 789 S.W.2d 498, 1990 Mo. App. LEXIS 722, 1990 WL 60810 (Mo. Ct. App. 1990).

789 S.W.2d 498 (Henderson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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