Millican v. State

733 S.W.2d 834, 1987 Mo. App. LEXIS 4405
CourtMissouri Court of Appeals
DecidedJuly 20, 1987
StatusPublished
Cited by3 cases

This text of 733 S.W.2d 834 (Millican 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
Millican v. State, 733 S.W.2d 834, 1987 Mo. App. LEXIS 4405 (Mo. Ct. App. 1987).

Opinion

CROW, Chief Judge.

Benjamin Clifford Millican (“movant”) appeals from an order denying his motion per Rule 27.261 to vacate his conviction of the class C felony of stealing a diamond valued at more than $150, § 570.030, RSMo 1978, for which he was sentenced as a persistent offender, § 558.016, RSMo Cum. Supp.1981, to 12 years’ imprisonment. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Millican, 641 S.W.2d 144 (Mo.App.1982).

In separate trials, two other individuals, Donald Ray James and Shirley D. James, were convicted for their participation in the theft. The conviction of Donald Ray James was affirmed on direct appeal, number 12353, by order of this Court June 24,1982. Thereafter, a motion by Donald Ray James to vacate his conviction was denied, and the denial was affirmed on appeal. James v. State, 694 S.W.2d 890 (Mo.App.1985).

[836]*836The conviction of Shirley D. James was affirmed on direct appeal. State v. James, 641 S.W.2d 146 (Mo.App.1982).

Movant was represented at trial by retained attorney W_, who also represented the Jameses at their respective trials. As explained more fully infra, movant maintains that prior to his trial, a conflict developed between his interest and that of the Jameses, and that the conflict adversely affected W_’s representation of mov-ant. Movant asserts he did not learn of the conflict until 1985, some four years after his trial.

The evidence on which movant was convicted is summarized in Millican, 641 S.W.2d 144, and James, 641 S.W.2d 146, and we need not repeat those summaries here. For the purpose of the instant appeal, it is sufficient to state that the James-es entered a Springfield jewelry store; Donald James asked a clerk to see a diamond; the clerk handed Donald James the diamond; Shirley James directed the clerk’s attention to some jewelry in a showcase and asked about it; Donald James turned his back to the clerk and made movements arousing the clerk’s suspicion; the clerk approached Donald James to see what he was doing; Donald James placed an ostensible diamond on the counter, asking the clerk whether the store would accept a ring in trade for it; the clerk noticed that the stone did not appear to be the one she had earlier handed Donald James; the clerk and Donald James exchanged words; the Jameses started hurriedly toward the entrance; the clerk took the stone Donald James had placed on the counter to the store's jeweler, who recognized it was not the store’s diamond, but was an imitation; the clerk alerted two male employees and they pursued the Jameses, who by this time were running across the parking lot toward a Cadillac; the Cadillac’s engine was running and a man was occupying the driver’s seat; the Jameses entered the rear of the Cadillac and it began moving; one of the pursuers placed himself in its path to block its departure; he was knocked to the pavement.

A short time later, a Cadillac with three occupants drove onto the parking lot of a convenience store some distance from the jewelry store; the Cadillac’s occupants were identified as movant and the Jameses. Some 15 minutes later, the trio appeared at a house about two blocks from the convenience store, and Shirley James asked to use the telephone to call a taxicab. The abandoned Cadillac, owned by and licensed to movant’s mother, was searched at the convenience store parking lot; the search yielded another large fake diamond. Mov-ant and the Jameses, known associates of each other, were subsequently arrested in Texas. At movant’s trial, witnesses at the scene of the theft identified him as the Cadillac’s driver.

Movant did not testify at his trial, but he did testify at the evidentiary hearing on his motion to vacate. In that testimony, mov-ant stated that “at the very early stages” of his representation by W_, movant told W_he was not present at the scene of the theft. Movant added, however, that he did not supply W_the names of any “alibi witnesses” who would testify he was not in Springfield that day.

Regarding the defense strategy at mov-ant’s trial, movant’s testimony was:

“Q ... Didn’t [W_] inform the three of you that the basic attack should be the same in all three cases, that is that the identification by the State’s witnesses was inadequate? Do you recall that?
A It seems like that was the case in Donald’s trial, I’m almost sure.
Q Well, wasn't that the case in your trial?
A I believe so, yeah.
Q Wasn’t the—
A Yes, I believe that’s right.
[[Image here]]
Q And, in fact, hadn’t [W_] filed a motion to suppress the State’s witnesses on the basis that their identification had been induced by suggestions by the State on behalf of yourself and the other two defendants, do you recall that motion to suppress?
A Yes, I do.
[837]*837[[Image here]]
Q ... [W_] grilled [the pursuer struck by the Cadillac] about his identification of you?
A That’s true.
Q Because [W_] tried to point out that this guy couldn’t have seen you?
A That’s true.
Q Because of the glare on the windshield and I believe — wasn’t there also testimony that [the pursuer] at the preliminary hearing might have said that he only saw your facial — the outline of your facial features, do you recall that?
A That’s true.
Q And do you recall [W ] cross-examining him about that at the trial?
A Yes.”

Movant recounted that Donald Ray James was the first of the trio to be tried.2 Movant testified he learned in 1985 that after Donald James’ trial, Shirley James had told W_she wanted to testify for movant. Movant’s testimony:

“Mrs. James wanted to testify in my behalf, but [W_] advised her that since she hadn’t been to trial yet, that she would be incriminating herself.
[[Image here]]
[W-] advised Shirley James not to take the stand in my behalf because she’d be incriminating herself, because she hadn’t been to trial yet, and so Mr. James said, ‘Well, I’ve been to trial, I’ll take the stand in his behalf’, and he says, ‘You can’t do that, either, or you’ll be incriminating yourself in any type of appeal later on'.”

Asked at the evidentiary hearing to tell the court “what really happened on the date of this theft from the jewelry store,” movant responded:

“I was present in the car.

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Related

Hickson v. State
901 S.W.2d 868 (Court of Appeals of Arkansas, 1995)
State v. Howard
896 S.W.2d 471 (Missouri Court of Appeals, 1995)
Millican v. State
752 S.W.2d 443 (Missouri Court of Appeals, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
733 S.W.2d 834, 1987 Mo. App. LEXIS 4405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millican-v-state-moctapp-1987.