Lee v. State

770 S.W.2d 724, 1989 Mo. App. LEXIS 691, 1989 WL 51660
CourtMissouri Court of Appeals
DecidedMay 17, 1989
DocketNo. 15824
StatusPublished
Cited by2 cases

This text of 770 S.W.2d 724 (Lee 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
Lee v. State, 770 S.W.2d 724, 1989 Mo. App. LEXIS 691, 1989 WL 51660 (Mo. Ct. App. 1989).

Opinion

HOGAN, Judge.

In this proceeding for postconviction relief under former Rule 27.26, now replaced by Rule 29.15, Vincent X. Lee (hereinafter defendant) sought to set aside two convictions of first-degree murder in violation of former § 559.010, RSMo 1969 (now repealed), and two convictions of first-degree robbery in violation of former § 560.120, RSMo 1969 (since repealed). The defendant’s punishment was originally fixed at four concurrent terms of life imprisonment and his convictions were affirmed on appeal. State v. Lee, 556 S.W.2d 25 (Mo.banc 1977). The decision of our Supreme Court was vacated by the United States Supreme Court because of the underrepresentation of women in the jury venire. Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed. 2d 736 (1979). Upon remand a new indictment charging the same crimes was filed against the defendant. Upon change of venue to Greene County, defendant was tried and found guilty on all four counts. The trial court, under the Second Offender Act, fixed defendant’s punishment at four concurrent life terms. The judgments of conviction were affirmed on appeal. State v. Lee, 617 S.W.2d 398 (Mo.1981).

Thereafter and on October 4, 1983, defendant filed a pro se motion pursuant to former Rule 27.26. The motion was denied without a hearing and on appeal this court reversed and remanded the cause so the provisions of former Rule 27.26 could be complied with. Lee v. State, 729 S.W.2d 647 (Mo.App.1987). Thereafter appointed counsel for the defendant filed an amended motion. The amended motion incorporated the defendant’s pro se motion by reference and other and additional grounds for relief were averred. After a hearing, the trial (motion) court denied relief. Inasmuch as sentence was pronounced prior to January 1, 1988, and this proceeding was pending before the effective date of present Rule 29.15, the appeal is governed by the law applicable to former Rule 27.26. Rule 29.-15(m). We affirm the judgment of the motion court.

In his motion for postconviction relief and in this court, the defendant claims he [726]*726was denied the effective assistance of counsel. Several grounds for relief were pleaded in the postconviction motion; only one subdivided assignment of error has been briefed here. The defendant’s other grounds are deemed abandoned. O’Neal v. State, 766 S.W.2d 91 (Mo.banc 1989). The general observations concerning a postcon-viction claim of ineffective assistance of counsel which were set forth in O’Neal are appropriate here:

“ ‘The Sixth Amendment guarantees the right to effective assistance of counsel. And, while this allegation is commonly found in proceedings attacking both guilty pleas and trial convictions, a movant is faced with what has often been called a “heavy burden.” Not only must the movant prove his allegation by a preponderance of the evidence, but the “heavier burden” arises from a presumption that counsel is competent. In determining the issue of ineffective assistance of counsel, the trial court is free to believe or disbelieve evidence — contradicted or undisputed. And, appellate review of the trial court’s decision in ruling a Rule 27.26 proceeding is expressly “limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous.” Such findings and conclusions are deemed clearly erroneous only if, after a review of the entire record, the appellate court is left with the “definite and firm impression that a mistake has been made.”
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced. A criminal defendant must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim. In reviewing such a claim, courts are not required to consider both prongs; if a defendant fails to satisfy one prong, the court need not consider the other. And, a court need not determine the performance component before examining for prejudice. If it is easier to dispose of the claim on the ground of lack of sufficient prejudice, the reviewing court is free to do so.’ ”

O’Neal v. State, 766 S.W.2d at 91-92 (citations omitted) (emphasis in original).

The defendant’s first specific assignment of error — if it can be called specific — is that he was denied the effective assistance of counsel because “trial counsel failed to exercise ... customary skill and diligence ... by objecting to Juror No. 39, -, even though he thought she would be a favorable defense juror, and by failing to make a specific objection which would preserve any error for review.” The defendant also maintains that his trial counsel should have requested a change of venue or should have moved to strike the entire panel.

To reiterate, the defendant contends that his trial counsel was ineffective: 1) “by objecting to Juror No. 39,-, even though he thought she would be a favorable defense juror,” and 2) “[in] failing to make a specific objection which would preserve any error for review.” In order to understand this apparently inconsistent assignment of error, it is necessary to consider that part of the voir dire conducted by the trial court itself. The incident to which the defendant refers was discussed by our Supreme Court on direct appeal, 617 S.W. 2d at 399-400:

“Appellant’s first assignment of error is based upon the trial court’s excusing a venire person upon voir dire. This claim of error arose from the trial court’s questioning of the panel members, in which he asked whether any of the members of the panel were disqualified for statutory reasons (§ 494.020.1, RSMo 1978), including conviction for a felony without restoration of civil rights or conviction for a misdemeanor involving moral turpitude. One panel member responded that she was ‘caught shoplifting once’ two years earlier.
The court stated: ‘-No. 39 was convicted of shoplifting. Do you have any objections?
[727]*727‘MR. STERLING (defense counsel): I object to that. She has not had her civil rights restored.
‘THE COURT: She said she was convicted two years ago.
‘MR. STERLING: I want my objection noted. It has been overruled.
‘THE COURT: Overruled.’
The court then struck venireperson No. 39 from the jury panel.
In his motion for new trial, the error asserted in the trial court’s ruling was in the trial court’s striking the venireperson from the panel ‘without permitting counsel to inquire as to the nature of a conviction, if any.’ In this Court, the assignment is that the court erred because the venireperson’s response that she had been ‘caught shoplifting’ did not demonstrate that she had been convicted of a felony or of a misdemeanor involving moral turpitude.

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Related

State v. Franklin
854 S.W.2d 438 (Missouri Court of Appeals, 1993)
State v. Turner
810 S.W.2d 92 (Missouri Court of Appeals, 1991)

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Bluebook (online)
770 S.W.2d 724, 1989 Mo. App. LEXIS 691, 1989 WL 51660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-state-moctapp-1989.