Parcel v. State

687 S.W.2d 621, 1985 Mo. App. LEXIS 4370
CourtMissouri Court of Appeals
DecidedFebruary 14, 1985
DocketNo. 13435
StatusPublished
Cited by9 cases

This text of 687 S.W.2d 621 (Parcel 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
Parcel v. State, 687 S.W.2d 621, 1985 Mo. App. LEXIS 4370 (Mo. Ct. App. 1985).

Opinion

FLANIGAN, Judge.

Movant Ralph E. Parcel appeals from a denial, after evidentiary hearing, of his Rule 27.26, V.A.M.R. motion to set aside a judgment and sentence for felony murder (§ 559.010 RSMo 1969). This court affirmed the conviction in State v. Parcel, 546 S.W.2d 571 (Mo.App.1977). The motion alleged that defendant’s trial counsel in the murder case, attorney Richard Franks, rendered him ineffective assistance of counsel in several respects. On this appeal movant asserts that counsel was ineffective and the trial court erred in ruling otherwise. Appellate review of the trial court’s order denying the motion is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j).

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 104 St.Ct. at 2068.

Movant’s first point is that attorney Franks inadequately represented movant during voir dire examination by failing to [624]*624object to the prosecutor’s questions directed to veniremen Meade, Gibbs, Sharp, Williams, Womack, Powell, McCoy and Vermillion, and failing to object to the prosecutor’s motion to excuse those veniremen.

This court has examined the transcript of the voir dire examination of the named veniremen. Both the prosecutor and attorney Franks participated in that examination. Each of the veniremen was properly excused by the court. None of the prosecutor’s questions was objectionable. Attorney Franks may not be faulted for failure to make an invalid objection to those questions or to the prosecutor’s motion to excuse those veniremen. The trial court found that attorney Franks was not incompetent with respect to the manner in which he conducted voir dire examination. That finding is fully supported by the record and is not clearly erroneous. Movant’s first point has no merit.

Movant’s second point is that attorney Franks was ineffective in failing to object to inadmissible evidence offered by the state and admitted by the trial court.

The statement of facts portion of movant’s brief, which does not set forth the challenged evidence, refers this court to three pages of the murder trial transcript where it purportedly appears. This court has made a gratuitous examination of those pages. They contain statements attributed to state’s witness Teitsworth which are in essence consistent with and cumulative of testimony of Teitsworth himself given earlier in the trial. The trial court found that the evidence was admissible as a statement of a co-conspirator and that attorney Franks had no duty to object to it. That finding is supported by the record and is not clearly erroneous.

Movant’s brief also states: “[Attorney Franks] failed to assert that the search and seizure of items introduced into evidence resulted from an unconstitutional search by Trooper Behrns. The trial transcript is somewhat unclear on this point, but it appears as though movant was not a suspect on the day he was arrested and searched and, therefore, the items seized from his person were inadmissible at trial.”

At the motion hearing movant testified that Trooper Behrns arrested movant “but not on this charge.” The trial transcript, which movant says is “unclear,” tends to indicate that the search and seizure were incident to a lawful arrest and that a motion to suppress would have been unavailing. Moreover, during cross-examination of the trooper, attorney Franks developed evidence of a written report, inconsistent with the trooper’s testimony on direct examination, which tended to incriminate a third person. The failure to object to the evidence could well have been a matter of trial strategy. The trial court found that the evidence was admissible and that counsel had no duty to challenge same. That finding is not clearly erroneous. Movant’s second point has no merit.

Movant’s third point is that attorney Franks was ineffective in failing to object to a statement made by the prosecuting attorney during the course of his closing argument to the jury. The prosecutor said, “Even if you believe the defendant, which I don’t, and which I believe the evidence overwhelmingly shows was not what happened, he is guilty of first degree murder in connection with the burglary.” Movant argues that it was improper for the prosecutor to argue that he personally did not believe the defendant.

“The law is well settled that the prosecuting attorney may not express his private opinion or knowledge of a defendant’s guilt but where it is apparent that his opinion is based solely on the evidence in the case he may properly argue that, in his opinion, defendant is guilty.” State v. Groves, 295 S.W.2d 169, 173 (Mo.1956).

The trial court found that the prosecutor’s statement “does not show that the prosecutor was expressing his personal belief on anything other than what was covered in evidence and that his belief was based on the evidence.” The trial court also found “there was no error and trial counsel had no duty to raise the issue and even if it [625]*625were error which he should have raised, his non-action was trial tactics_” Those findings are not clearly erroneous. Moreover, as stated in Fitzpatrick v. State, 578 S.W.2d 389, 341 (Mo.App.1979), “Even if it be assumed that the prosecutor’s argument exceeded permissible limits, mere failure of defense counsel to preserve the issue on appeal is not a basis to grant relief under Rule 27.26. An error or mistake in trial strategy or judgment must, to justify vacating judgment of conviction, have been of such character as to deprive movant substantially of his right to a fair trial. McConnell v. State, 530 S.W.2d 43 (Mo.App.1975). Such is not demonstrated to have been the effect in this case.” Mov-ant’s third point has no merit.

Movant’s fourth point is that attorney Franks inadequately investigated witness Raymond Hoover who testified as a character witness for the defense. Movant argues that Hoover “gave testimony harmful to the defense.” This court has reviewed the testimony of Hoover and its general tenor was favorable to the defense. Some portions of that testimony which may have been unfavorable had previously been elicited during the testimony of movant, who had testified earlier in his own defense.

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Cite This Page — Counsel Stack

Bluebook (online)
687 S.W.2d 621, 1985 Mo. App. LEXIS 4370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parcel-v-state-moctapp-1985.