Pogue v. State

750 S.W.2d 497, 1988 Mo. App. LEXIS 519, 1988 WL 23425
CourtMissouri Court of Appeals
DecidedMarch 22, 1988
DocketNo. WD 39488
StatusPublished
Cited by2 cases

This text of 750 S.W.2d 497 (Pogue 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
Pogue v. State, 750 S.W.2d 497, 1988 Mo. App. LEXIS 519, 1988 WL 23425 (Mo. Ct. App. 1988).

Opinion

PER CURIAM:

James D. Pogue filed a Rule 27.26 motion following his conviction of burglary in the first degree and his sentencing of 30 years’ imprisonment as a persistent offender. Pogue’s conviction and sentence were affirmed on direct appeal by a per curiam order and an unpublished memorandum opinion. State v. Pogue, 690 S.W.2d 819 (Mo.App.1985). Pogue now appeals the denial, after an evidentiary hearing, of his Rule 27.26 motion, claiming ineffective assistance of counsel.

The order of the circuit court denying appellant’s Rule 27.26 motion is affirmed.

Appellant was tried and convicted of burglary in the first degree, in violation of Sec. 569.160, RSMo 1978, and was sentenced to 30 years’ imprisonment as a “persistent offender” under Sec. 558.016, RSMo Supp. 1984. The State’s principal witness was the victim of the burglary, who was a resident of the top floor of a Kansas City [498]*498apartment building. The victim testified that she was awakened at around 3:00 a.m. by someone knocking at her door. When she ignored the knocking, she heard the noise of one or more persons on the roof of the building, and then the sound of someone breaking into her apartment through a balcony door.

At this point, testified the victim, she ran out of. her apartment and knocked at the door of an apartment down the hall. The victim testified that, as she knocked on her neighbor’s door, she saw appellant come out of her apartment. When she saw appellant, she screamed, and the appellant ran out the fire escape door. Appellant was apprehended by police a short time later in the parking lot of the apartment complex.

Appellant, on the other hand, testified that he was not coming out of the victim’s apartment, but out of the apartment across the hall when appellant was knocking on her neighbor’s door. According to appellant, he ran from the scene because he was on probation and did not want to be in any way involved in the incident.

Also arrested at the scene was Steven Daniels, an acquaintance of appellant who was staying in an apartment across the hall from the victim’s apartment. It was Daniels’ apartment that appellant claimed that he stepped out of when he saw victim in the hallway. At the trial, appellant testified that it was Daniels who committed the burglary, and that appellant knew nothing of the burglary at the time.

Police Detective Donald Mansell appeared at the trial and testified as to statements made by appellant and Daniels while they were in police custody. According to Mansell, Daniels initially told police that appellant "was the one in the apartment.” Appellant, on the other hand, initially told police that he knew nothing about the burglary of the apartment. Then, according to Mansell, the two men conversed alone together for a few minutes, after which they told Mansell that they wanted to tell him “the truth of what really happened.” Then, both Daniels and appellant told Man-sell that it had been Daniels who had entered the victim’s apartment. In addition, appellant now told Mansell that he knew the burglary was going to occur, and that he intended to assist Daniels in disposing of the stolen property.

Following the testimony, appellant was convicted of burglary in the first degree, and this conviction was followed by appellant’s filing of a 27.26 motion. In his motion, appellant claimed that his trial attorney had been ineffective in several respects, including a failure to call Daniels as a witness at appellant’s trial.

At the Rule 27.26 hearing, appellant testified that prior to trial he had told his trial attorney that he wanted Daniels subpoenaed to testify on his behalf. Appellant claimed that he continued to request Daniels’ testimony even on the day of the trial, but that his attorney refused to subpoena or call Daniels as a witness.

Appellant’s trial attorney, James Brown, also testified at the hearing. Brown recalls discussing the issue of Daniels’ possible testimony with appellant, but Brown did not recall that appellant demanded or insisted on Daniels’ appearing at the trial. Brown also testified that his decision not to call Daniels as a witness was a matter of trial strategy.

At the conclusion of the hearing, appellant’s Rule 27.26 motion was overruled by the court. Appellant now argues that the trial court erred in overruling his Rule 27.-26 motion because, in the underlying criminal proceeding, he was denied effective assistance of counsel.

In support of his claim, appellant argues that Brown was ineffective because he failed to produce or even interview Daniels as a trial witness on appellant’s behalf. Daniels had appeared at appellant’s Rule 27.26 hearing and had testified that, if Brown had requested his presence at trial, he would have appeared and testified on behalf of appellant. Daniels also testified that he was the one who entered the victim’s apartment, and that appellant knew nothing about it at the time. Daniels further testified that, at his own guilty plea proceeding, he had told the judge that ap[499]*499pellant was in no way involved with the burglary.

Daniels also stated that he was drunk when he made his first statement to the police, implicating appellant. He claimed that he made the first statement because the police told him they would let him go if he implicated appellant. According to Daniels, he then made a second statement to Detective Mansell, indicating that appellant was not involved in the burglary. Daniels said he made this second statement “because there wasn’t no use in putting Jimmy into something he didn’t do.”

Daniels also claimed that Brown never contacted him to ask him about his potential testimony. Daniels’ remark was corroborated by Brown himself, who conceded at the Rule 27.26 hearing that he had never spoken to Daniels.

Appellant now argues that, given these facts, the instant case is controlled by Poole v. State, 671 S.W.2d 787, 788 (Mo.App.1983), and Thomas v. State, 516 S.W.2d 761, 766-767 (Mo.App.1974). These cases hold that when a criminal defendant informs his attorney of witnesses who may offer exculpatory testimony, and that attorney fails to even investigate the matter by contacting said witnesses about the testimony, said inaction can amount to ineffective assistance of counsel.

In response to appellant’s argument, the State claims that the attorney’s refusal to produce Daniels as a witness was a matter of trial strategy and was thereby effectively immune to appellate review. As noted in the cases cited by the State, the choice of witnesses is a matter of trial strategy and will not support a claim of ineffective assistance of counsel. Jackson v. State, 729 S.W.2d 253, 255 (Mo.App.1987); Fletcher v. State, 710 S.W.2d 928, 930 (Mo.App.1986).

In support of its argument that Brown’s conduct was a matter of trial strategy, the State refers to testimony presented at the Rule 27.26 hearing.

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Related

State v. Suarez
867 S.W.2d 583 (Missouri Court of Appeals, 1993)
Wolford v. State
785 S.W.2d 580 (Missouri Court of Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
750 S.W.2d 497, 1988 Mo. App. LEXIS 519, 1988 WL 23425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pogue-v-state-moctapp-1988.