Jones v. State

778 S.W.2d 408, 1989 Mo. App. LEXIS 1462, 1989 WL 119674
Procedural entryThis page is a short order in Jones v. State. Read the opinion of the Court — 1989 Mo. App. LEXIS 583
Missouri Court of Appeals·Decided October 13, 1989·No. No. 15949·Published

Opinion

CROW, Presiding Judge.

Tommy Everett Jones (“movant”) appeals from a judgment denying his second amended motion under Rule 27.26, Missouri Rules of Criminal Procedure (18th ed. 1987),1 to vacate his conviction, per jury trial, of stealing a chain hoist of the value of $150 or more, for which he was sentenced as a persistent offender to ten years’ imprisonment. The conviction was affirmed on direct appeal. State v. Jones, 708 S.W.2d 775 (Mo.App.1986).

Relief was denied in the 27.26 proceeding after the circuit court, henceforth referred to as “the motion court,” conducted a hearing at which movant and the State presented evidence.

Movant’s brief presents two points; each maintains movant received ineffective assistance of counsel at the jury trial.

The evidence on which the guilty verdict was based is synopsized in this Court’s opinion in the direct appeal. 708 S.W.2d at 776. A reading of that synopsis is essential in understanding movant’s contentions here. In this opinion we summarize only the evidence at the 27.26 hearing pertinent to the issues we must decide.

Movant testified in the motion court that prior to the jury trial he told his appointed lawyer, Nancy Hentig Narrow, that he wanted Phyllis Barks and Bill Hunsperger called as “alibi witnesses.” According to movant, Barks and Hunsperger could have testified movant was at a bar the night the hoist was stolen and he had no chain hoist with him and no vehicle in which to put one. Narrow did not call Barks or Hun-sperger as witnesses at movant’s trial.

On cross-examination at the 27.26 hearing, movant conceded he left the bar at some point the night the hoist was stolen, and the only question was when. Movant admitted Barks and Hunsperger did not accompany him when he departed.

Barks, presented by movant as a witness in the motion court, testified she was with movant at a Dexter tavern — the Paper Doll — the night the hoist was stolen. She avowed they were together “the whole night,” even after the tavern closed. According to Barks, movant had no chain hoist with him and nothing to carry one in. Barks maintained no one contacted her about being a witness for movant before his trial.

On cross-examination Barks admitted movant left the tavern alone, but she did not recall what time. She remained there and did not see where movant went or [410]*410what he did while he was gone. She acknowledged that the place where the hoist was stolen was “right there close” to the tavern.

Hunsperger, presented by movant as a witness in the motion court, testified he (Hunsperger) was at the tavern about four or five hours the night the hoist was stolen. Movant, according to Hunsperger, was at the tavern with Barks when Hunsperger left “around 10:30 or 11:00.” Movant had no chain hoist with him and was not driving a vehicle. Hunsperger conceded he did not know when movant left or where movant went once he left. Hunsperger confirmed that the place where the hoist was stolen was “right across the railroad tracks from the bar.” Hunsperger denied that anyone contacted him about what he knew prior to movant’s trial.

Lawyer Narrow, called by the State as a witness in the motion court, testified Barks was contacted twice prior to movant’s trial. One contact was by Richard Chronister, an investigator for Narrow’s office. Chronis-ter reported Barks said she and movant were at the tavern the night the hoist was stolen, that she did not “really know” whether movant left, that he may have but she “really couldn’t say for sure.”

The other contact with Barks was by Dwayne Simons, an investigator for a public defender who withdrew from representing movant prior to trial. A report by Simons quoted Barks as saying she and movant were “drinking on credit,” that they had no money, and that movant “left for a period of about 45 minutes to get some money.”

Narrow testified that Hunsperger was contacted by the same two investigators prior to movant’s trial. Simons’ report quoted Hunsperger as saying he “had no story” and did not know anything about movant and the arrest. Referring to Chronister’s contact with Hunsperger, Narrow testified: “The report from ... Chron-ister ... said that they were at the Paper Doll at the same time that night. That they were drinking. That he, Mr. Hunsper-ger, left at 8:30, and Tommy Jones was still there at that time.”

Narrow recalled she discussed with mov-ant the results of the investigators’ contacts with Barks and Hunsperger. There was “some disagreement” between her and movant as to whether to call Barks and Hunsperger as witnesses. Narrow felt it would not be proper trial strategy to do so. She explained:

“Basically, there were two things that were our major concerns: One is that [movant] had informed me that he did not want a conviction of anything, a misdemeanor or a felony, based on the fact that he was on parole and felt that even a misdemeanor conviction could cause his parole to be revoked.
He also had another pending charge at the time and felt like another conviction could affect that other pending charge if it was pursued beyond the pending stage.
Our strategy, basically, was to try to disprove the testimony that he was involved in, both through his co-defendant and through another witness, who, initially, gave his name as being seen in the area.”

Narrow recounted that at movant’s trial she developed on cross-examination of the latter witness that he was unable to make any “firm identification” of movant. As to the co-defendant, Narrow conducted an extensive cross-examination, using a “prior inconsistent statement” to impeach him.

Asked on cross-examination about the decision to not use Barks as a witness, Narrow replied:

“Ms. Barks was not called because: number one, she gave conflicting statements about when Tommy was there, or at least, what could be considered as inconsistent statements, felt that to call an alibi witness, who was an imperfect alibi witness would make it look like he was trying to hide something.”

The motion court, with commendable diligence, made comprehensive findings of fact and conclusions of law. They included this:

“The testimony of [Barks and Hun-sperger] would not have provided an alibi [411]*411for movant because it did not demonstrate that he could not have been at the scene of the crime. The testimony could be taken as damaging to the defense of the criminal case because it placed mov-ant at a tavern near where the chain hoist was stolen. The testimony that movant left the tavern and then came back tends to corroborate the testimony of the accomplice and shows that movant had the opportunity to commit the crime. The testimony would not have exonerated or helped movant nor provided a viable defense. There is no showing that the trial strategy as to these witnesses was erroneous, and no showing that mov-ant was prejudiced by the failure to call them. Therefore, the refusal to call these two potentially damaging witnesses did not constitute ineffective assistance of counsel.”

Movant’s first point on appeal reads:

“The [motion] court erred ...

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Jones v. State, 778 S.W.2d 408, 1989 Mo. App. LEXIS 1462, 1989 WL 119674 (Mo. Ct. App. 1989).

778 S.W.2d 408 (Jones v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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