Hightower v. State

1 S.W.3d 626, 1999 Mo. App. LEXIS 1948, 1999 WL 768345
CourtMissouri Court of Appeals
DecidedSeptember 28, 1999
DocketNo. 22975
StatusPublished
Cited by1 cases

This text of 1 S.W.3d 626 (Hightower 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
Hightower v. State, 1 S.W.3d 626, 1999 Mo. App. LEXIS 1948, 1999 WL 768345 (Mo. Ct. App. 1999).

Opinion

CROW, Presiding Judge.

In State v. Hightower, 951 S.W.2d 712 (Mo.App. S.D.1997), this court affirmed Appellant’s conviction, per jury trial, of robbery in the first degree, armed criminal action, and tampering in the first degree.

Appellant thereafter commenced an action for post-conviction relief under Rule 29.15,1 complaining that the lawyers who represented him at trial (“Trial Counsel”) rendered ineffective assistance in several respects. The motion court denied Appellant’s request for an evidentiary hearing and ultimately issued findings of fact and conclusions of law rejecting all of Appellant’s complaints. This appeal followed.

One of the questions this court faces is whether Appellant was entitled to an evidentiary hearing on any issue raised in this appeal. In that regard, this court notes a prisoner seeking post-conviction relief must meet three requirements to obtain an evidentiary hearing. State v. Starks, 856 S.W.2d 334, 336[2] (Mo. banc 1993). The requirements are: (1) the prisoner must allege facts, not conclusions, warranting relief, (2) the facts pled must raise matters not refuted by the files and records in the case, and (3) the matters complained of must have resulted in prejudice to the prisoner. Id.

The first of Appellant’s two points relied on avers Trial Counsel were remiss in failing:

“ ... to Move for an Automatic Change of Venue Under Rule 32.03, in Light of the Fact that the Trial was Held in a Small Town, Jurors Knew Each Other, Knew State’s Witnesses and Persons Employed by the Victim’s Business, had Favorable Feelings Toward the Prosecutor and had Heard About the Case, and Where Appellant Qualified Under the Rule for a Change of Venue Because the County had Less than 75,000 Inhabitants.”

In State v. Weaver, 912 S.W.2d 499, 518[54] (Mo. banc 1995), cert. denied, 519 U.S. 856, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996), a prisoner appealed from the denial of post-conviction relief, complaining that his lawyer rendered ineffective assistance in the trial court by failing to seek a change of venue due to pretrial publicity. The Supreme Court denied the complaint, holding that the record supported the motion court’s finding that the failure to seek a change of venue did not prejudice the prisoner. Id.

In Jones v. State, 824 S.W.2d 441 (Mo.App. E.D.1991), a prisoner sought post-conviction relief on the ground that his lawyer was ineffective by failing to seek a change of venue. Affirming the motion court’s denial of relief, the appellate court held the prisoner failed to prove the result of the trial would have been different had a change of venue been sought. Id. at 442[1],

Consistent with Weaver, 912 S.W.2d at 518[54], and Jones, 824 S.W.2d at 442[1], this court holds Appellant was not entitled to an evidentiary hearing on the ineffective assistance claim in his first point if the record shows he was not prejudiced by Trial Counsels’ failure to seek a change of venue. If the record demonstrates the result of the trial would not [628]*628have been different had a change of venue been sought, Appellant cannot show prejudice.

Appellant bases his first point on disclosures by certain venire members during voir dire. The disclosures are identified in the statement of facts in Appellant’s brief.

One of the disclosures was that venire member Summerfield was married to the sister of venire member Housman. Asked whether she could come to a different decision than Summerfield, Housman replied: “Sure. We don’t agree on a lot of things.”

Asked whether he could “hold [his] ground with [Housman,]” Summerfield answered: “Sure can.”

Furthermore, neither Housman nor Summerfield served on the jury, hence Appellant could not have been harmed by their presence on the venire. Finally, a change of venue would not have guaranteed that no member of the venire in the new venue was related to any other member.

This court holds Appellant’s complaint about Housman and Summerfield is merit-less, if not frivolous.

Another disclosure on which Appellant bases his first point is that venire members Cogdill and McClendon worked for the same employer. Asked whether she was Cogdill’s boss or he was her boss, McClendon answered: “No.” McClendon added that Cogdill could make a decision without consulting her.

Cogdill revealed McClendon was his fiance. Asked whether he could “look her dead in the eye and disagree with her,” Cogdill responded: “Yes, sir, for any reason.” McClendon agreed with Cogdill’s answer.

Although Cogdill and McClendon served on the jury — neither side challenged either of them for cause or peremptorily — the record refutes any notion that their relationship harmed Appellant. Furthermore, as with Summerfield and Housman, there is no assurance that a change of venue would have produced a venire in which no member worked with any other member or in which no member was betrothed to any other member.

This court finds no merit in Appellant’s complaint about Cogdill and McClendon.

Another basis for Appellant’s first point is that, according to Appellant, the prosecutor “was on a first-name basis with more than one panel member.”

The record refutes that allegation.

At the outset of voir dire, the prosecutor announced he saw no one in the room whom he knew. He continued: “Is there anybody here that knows me? I’m actually an assistant prosecutor down here without pay, and I’m also one that’s paid in Cape County.”

No venire member responded.

This court deduces from the statement of facts in Appellant’s brief that he assumes the prosecutor was on a “first-name basis” with some venire members because the prosecutor addressed venire member Vickie Pazdera as “Miss Vickie” and addressed venire member Cogdill by his forename, Jeff.

The prosecutor’s use of forenames in addressing venire members does not compel an inference that the prosecutor was on a “first-name basis” with them, particularly where neither Pazdera nor Cogdill indicated they knew the prosecutor. Furthermore, Pazdera did not serve on the jury, as the prosecutor challenged her for cause and Trial Counsel joined in the challenge, which the trial court granted.

This court holds the record refutes Appellant’s premise that he was prejudiced because the prosecutor was on a “first-name basis with more than one panel member.”

Another voir dire disclosure on which Appellant bases his first point is that veni-re member Whitney “was employed at Town & Country at the time of the robbery, though he knew nothing about it.” As detailed in this court’s opinion affirm-[629]*629mg Appellant’s conviction, the robbery victims were employees of Town & Country Grocery Store in Charleston, and the money taken from them at gunpoint belonged to the store. 951 S.W.2d at 713-14.

The prosecutor challenged venire member Whitney for cause on grounds that need not be set forth here, and the trial court granted the challenge.

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Related

Hightower v. State
43 S.W.3d 472 (Missouri Court of Appeals, 2001)

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Bluebook (online)
1 S.W.3d 626, 1999 Mo. App. LEXIS 1948, 1999 WL 768345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hightower-v-state-moctapp-1999.