Noble v. State

647 S.W.2d 174, 1983 Mo. App. LEXIS 4381
CourtMissouri Court of Appeals
DecidedFebruary 1, 1983
DocketNo. 12856
StatusPublished

This text of 647 S.W.2d 174 (Noble 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
Noble v. State, 647 S.W.2d 174, 1983 Mo. App. LEXIS 4381 (Mo. Ct. App. 1983).

Opinion

HOGAN, Judge.

In April 1977, a jury found Jack Lee Noble guilty of robbery in the first degree as defined and denounced by § 560.120, RSMo 1969, now repealed, but found itself unable to agree on a punishment. The trial court accordingly assessed appellant’s punishment at imprisonment for a term of 50 years, as authorized by § 560.135, RSMo (Supp.1975), now repealed, and former Rule 27.03. On appeal this court affirmed the judgment. State v. Noble, 591 S.W.2d 201 (Mo.App.1979). Appellant thereafter sought postconviction relief under the provisions of Mo.R.Crim.P. 27.26, asserting he was denied the effective assistance of counsel upon the trial of the original criminal action. After a hearing, the trial court denied relief. Noble appeals.

There is no doubt that a criminal appellant’s Sixth Amendment right to counsel includes the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449, n. 14, 25 L.Ed.2d 763, 773, n. 14 (1970). This right was recognized by former Rule 29.01, in effect when the appellant was tried, and the standard by which effectiveness of counsel is to be measured in this proceeding was set forth in Seales v. State, 580 S.W.2d 733, 735[3] (Mo. banc 1979). We must therefore determine whether trial counsel’s performance conformed to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances.

The appellant asserts he was prejudiced by counsel’s failure to interview and call a witness who would have corroborated another witness who testified that appellant was elsewhere when the offense charged was committed. Upon trial, the appellant testified he had not gone to the convenience store which was robbed, as follows:

“At the Shop ’N Go Market, no. We went and bought food right after I got off work, ate supper, and went to a new store that they had opened then, it was a cut-rate store. I am not real familiar with the streets of Joplin, but it is on beyond Schifferdeeker some distance on where they advertise you to join a club for $2.00 a month and you can trade there at their prices.” (Our emphasis.)

At the postconviction hearing, appellant’s estranged wife testified that had she been called as a witness she would have testified that at or shortly prior to the robbery:

“We were looking for this street and I didn’t know for sure where it was at and we turned and it was a dead end street and I seen this car parked at the side of the road, this man standing by the side of it. We went down to the corner and turned around and stopped on the opposite side of the street. [A female companion] went over to the man to ask him the street that we were looking for and I recognized the man as [the appellant] standing beside the car with his headlights on.”

So, in essence, appellant premises ineffective assistance of counsel upon failure to call an alibi witness who was admittedly lost when she saw him. We are unable to perceive how the estranged wife’s testimony would establish appellant was “on beyond Schifferdeeker some distance on where they advertise you to join a club for $2.00 a month,” but the trial court found that counsel “may well have determined that this witness was not of sufficient credibility to call as a witness” and we most cordially agree.

The appellant further asserts that trial counsel failed to interview some or all of the State’s witnesses prior to trial, thereby rendering ineffective any attempted cross-examination or rebuttal of their testimony. The trial court found as a fact that the parts of the transcript relied on did not establish a failure to interview all the State’s witnesses. Our review of the trial court’s finding generates no firm belief that it is wrong, or that the court erroneously declared the law or misapplied the law to the facts before it. The point is based on an incident which occurred at the beginning of the trial. Having filed an information on March 17, 1977, the prosecuting attorney filed an amended information on April 29, having given notice the previous day that [176]*176he intended to endorse the amended information by adding the names of a number of witnesses. Before the trial commenced, appellant’s counsel addressed the court as follows:

“MR. HAMILTON: Your Honor, before we start, the State yesterday endorsed a witness — approximately twelve witnesses, my client has requested me to ask for a continuance in this matter.
[THE PROSECUTING ATTORNEY]: The witnesses were all witnesses within the police reports formerly furnished to Mr. Hamilton, and I believe all familiar to Mr. Hamilton.
THE COURT: Mr. Hamilton, are you saying the endorsements of any one of these witnesses, the fact that they are witnesses is a surprise to you?
MR. HAMILTON: Your Honor, I cannot honestly say I am surprised by these witnesses.
THE COURT: They are not witnesses that you had no knowledge about beforehand?
MR. HAMILTON: That’s correct.
THE COURT: Have you in fact discussed or talked to any of these witnesses?
MR. HAMILTON: Several of them, I have read statements.
THE COURT: Unless you can show the Court that your client would be harmed by the continued trial of this case or going to trial today, I can see no reason to grant a continuance for that reason.” (Our emphasis.)

Asserting very expansively that counsel’s failure to interview all the State’s witnesses made it impossible to cross-examine those witnesses, appellant cites us to McQueen v. Swenson, 498 F.2d 207 (8th Cir.1974), a case in which hastily appointed defense counsel had made no effort whatever to investigate the State’s case. The United States Court of Appeals for the Eighth Circuit found the appellant had been denied effective assistance of counsel. In a subsequent habeas corpus proceeding, that court found itself dissatisfied with the district court’s action on remand, and ordered appellant discharged, subject to the State’s right to retry the appellant within 90 days. McQueen v. Swenson, 560 F.2d 959 (8th Cir.1977).

We have no such situation here. The appellant draws the conclusion that counsel made no investigation on the basis of counsel’s statement italicized above, which read “Several of them, I have read statements.” This conclusory allegation vividly demonstrates the fallaciousness inherent in drawing sweeping conclusions from bits or fragments of a record, taken in isolation. See Garrard v. State Dept. of Public Health & Welfare, 375 S.W.2d 582, 592-593[25][26] (Mo.App.1964). Upon direct examination, the owner of the convenience store was asked what the robber wore at the time of the robbery.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

McMann v. Richardson
397 U.S. 759 (Supreme Court, 1970)
New York v. Belton
453 U.S. 454 (Supreme Court, 1981)
Roger Lee McQueen v. Harold R. Swenson, Warden
498 F.2d 207 (Eighth Circuit, 1974)
Sanford Thomas v. Donald Wyrick
535 F.2d 407 (Eighth Circuit, 1976)
Garrard v. State Department of Public Health & Welfare
375 S.W.2d 582 (Missouri Court of Appeals, 1964)
State v. Noble
591 S.W.2d 201 (Missouri Court of Appeals, 1979)
Seales v. State
580 S.W.2d 733 (Supreme Court of Missouri, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
647 S.W.2d 174, 1983 Mo. App. LEXIS 4381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noble-v-state-moctapp-1983.