Palmer v. State

791 S.W.2d 898, 1990 Mo. App. LEXIS 853, 1990 WL 71096
CourtMissouri Court of Appeals
DecidedMay 30, 1990
DocketNo. 16553
StatusPublished
Cited by2 cases

This text of 791 S.W.2d 898 (Palmer 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
Palmer v. State, 791 S.W.2d 898, 1990 Mo. App. LEXIS 853, 1990 WL 71096 (Mo. Ct. App. 1990).

Opinion

CROW, Presiding Judge.

Appellant Richard Lee Palmer appeals from the denial, after an evidentiary hearing, of his amended motion under Rule 27.261 to vacate his conviction, per jury trial, of robbery in the first degree and armed criminal action, for which he was sentenced as a prior offender to consecutive prison terms of 15 years and 5 years, respectively. The conviction was affirmed on direct appeal. State v. Palmer, 726 S.W.2d 810 (Mo.App.1987).

Appellant’s brief in the instant appeal presents one point:

“The hearing court clearly erred in denying appellant’s Rule 27.26 motion ... because appellant was denied his right to the effective assistance of trial counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 18(a) of the Missouri Constitution, in that appellant’s trial counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under the same or similar circumstances, by: 1) failing to move to reopen the evidence so that an essential defense witness could testify at trial, which prejudiced appellant by depriving him of the testimony of a witness who would have refuted the evidence of appellant’s participation in the charged offense; 2) failing to object to State’s evidence adduced in violation of the rule on the exclusion of witnesses, which prejudiced appellant and denied his right to due process of law by permitting the State’s witnesses [900]*900to compare and tailor their testimony in contravention of the spirit of the rule; and 3) failing to renew his motion to suppress physical evidence at the time the evidence was offered, because such failure permitted the State to introduce irrelevant but highly prejudicial evidence in the form of a shotgun unrelated to the charged offense.”

The evidence at the jury trial is summarized in the opinion on the direct appeal, 726 S.W.2d at 811-12. Only such evidence as is pertinent to the issues in the instant appeal will be mentioned in this opinion.

Kenneth Koster testified at the jury trial that he, Rick Banks and appellant participated in the robbery — Banks as the masked, shotgun-wielding bandit, appellant as the driver of the getaway car, and Koster as the lookout who cut the telephone line at the store where the robbery occurred. Koster avowed at the jury trial that the prosecutor had made him no promises in exchange for his testimony.

Koster was preceded on the stand by Beverly Johnson, who testified she was at an apartment on the evening of the robbery and saw Koster, Banks and appellant depart, taking appellant’s shotgun. Ms. Johnson recounted that the trio returned some four hours later. She quoted appellant as saying they had robbed the store; she saw him dump money on a bed.

At the outset of the trial the prosecutor had asked the trial court to invoke the rule excluding witnesses from the courtroom. The trial court granted the request, instructing the lawyers to be certain that their witnesses were not in the courtroom.

Ms. Johnson was the State’s third witness. Immediately after her testimony the trial court declared a recess. Koster was the first witness following the recess. During his redirect examination by the prosecutor the following exchange occurred:

“Q. Have you talked to Beverly Johnson about what you are going to testify to here today?
A. Yes, sir.
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Q. When did you talk to her?
A. A few minutes ago.
Q. That was while you were waiting to come in here?
A. Yes, sir.
Q. And that was after you had already told the same story to Mr. Lyons2?
A. Yes, sir.
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Q. And are you telling this jury the things that you have told them for any reason other than that is the truth?
A. No, sir, that is the truth.”

Recross examination by attorney Lyons produced this colloquy:

“Q. Do you remember talking to me over there [in jail]?
A. Yes, sir.
Q. Do you remember me asking you in any of the letters did you ever — did Richard Palmer ever discuss your testifying in this case, and your answer was ‘No’. Isn’t that true?
A. Yes, sir.
Q. And you also testified that you talked to Beverly Johnson right before you testified?
A. Yes, sir.
Q. But that was after you talked with me before you talked with Beverly Johnson, isn’t that true?
A. Yes, sir.”

At the hearing on appellant’s motion for new trial (some seven weeks after the trial) appellant presented Koster as a witness. Koster testified that his trial testimony was false, that he did not see appellant on the night of the robbery and was not with appellant on the date it occurred.

It is Koster’s trial testimony that is the subject of appellant’s second complaint of ineffective assistance. We address that complaint first.

Appellant maintains that attorney Lyons,3 henceforth referred to as “trial counsel,” rendered ineffective assistance [901]*901by failing to object to Koster’s testimony at trial and by failing to request that such testimony be stricken and that a mistrial be declared. Appellant asserts that Foster violated the “spirit” of the rule excluding witnesses from the courtroom “by tailoring his testimony to conform to that of another [Sjtate’s witness.” According to appellant, Foster gleaned the “facts” of his testimony “through conversations with others involved in the case.” Appellant directs our attention to the following excerpt from Foster’s testimony at the hearing on the motion for new trial:

“Q. How did you learn the details of the offense?
A. It had been over the last year.
Q. Would you tell us specifically how you learned about it?
A. Between conversations that I have had.... When I was first arrested on June 13th of last year I was appointed Mr. James Drese as my counselor. Upon two occasions we had talked and discussed the case and whether I was willing to testify for Rick or for a plea bargain, I guess you would call it.
Q. Were you at that time made aware of some of the facts of the robbery?
A. Yes, I was.
Q. Did you also learn some of the facts from Beverly Johnson?
A. Yes, about what was supposed to have taken place when we got back to the apartment.
Q. And she filled you in upon the details back in the conference room?
A. Yes.
Q. That was right before you testified?
A. Yes.”

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Related

Beal v. State
209 S.W.3d 542 (Missouri Court of Appeals, 2006)
State v. Norfolk
807 S.W.2d 105 (Missouri Court of Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
791 S.W.2d 898, 1990 Mo. App. LEXIS 853, 1990 WL 71096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmer-v-state-moctapp-1990.