Richardson v. State

386 S.W.3d 803, 2012 WL 3768005, 2012 Mo. App. LEXIS 1061
CourtMissouri Court of Appeals
DecidedAugust 31, 2012
DocketNo. SD 31636
StatusPublished
Cited by4 cases

This text of 386 S.W.3d 803 (Richardson 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
Richardson v. State, 386 S.W.3d 803, 2012 WL 3768005, 2012 Mo. App. LEXIS 1061 (Mo. Ct. App. 2012).

Opinion

DON E. BURRELL, J.

Maurice Cornelius Richardson (“Mov-ant”) appeals the motion court’s denial, after an evidentiary hearing, of the portion of his amended 29.15 motion that sought to set aside his first-degree robbery conviction. See section 569.020.1 In a single [805]*805point relied on, Movant claims the motion court clearly erred because Movant proved that his appellate counsel was ineffective “by failing to assert on direct appeal that there was insufficient evidence to support [his] conviction for robbery in the first degree.” Finding no merit in the claim, we affirm the motion court’s denial of post-conviction relief.

Applicable Principles of Review

We review the motion court’s order denying post-conviction relief to determine whether its accompanying findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). Such findings and conclusions are clearly erroneous only if our review of the entire record leaves us with the definite and firm impression “that a mistake has been made.” Storey v. State, 175 S.W.3d 116, 125 (Mo. banc 2005); Moss, 10 S.W.3d at 511.

In reviewing the sufficiency of the evidence in a court-tried criminal case, the appellate court’s role is limited to a determination of whether the state presented sufficient evidence from which a trier of fact could have reasonably found the defendant guilty. “The Court examines the evidence and inferences in the light most favorable to the verdict, ignoring all contrary evidence and inferences.”

State v. Vandevere, 175 S.W.3d 107, 108 (Mo. banc 2005) (quoting State v. Niederstadt, 66 S.W.3d 12, 14 (Mo. banc 2002)).

Factual and Procedural Background

Following a November 2008 bench trial, the trial court found Movant guilty of robbery in the first degree and resisting arrest. It sentenced Movant as a prior and persistent offender to serve concurrent sentences of eighteen years for robbery and seven years for resisting arrest. We affirmed Movant’s convictions on direct appeal in State v. Richardson, 313 S.W.3d 696 (Mo.App. S.D.2010). The evidence adduced at Movant’s trial as viewed in the light most favorable to the verdict was as follows.

On August 30, 2006, at approximately two-o’clock in the morning, an African American man wearing a ski mask entered a convenience store and demanded all the money in the register. The clerk handed the man assorted $1, $5, and $10 bills from the register. After the man exited the store, the clerk called 9-1-1.

Police responded to the call in less than a minute. At the clerk’s direction, they proceeded down an alley in the direction the clerk said the robber had gone after leaving the store. From there, officers established a search perimeter. Within minutes, they located a vehicle traveling slowly on a road near the store with its headlights turned off. Officers pulled in behind the vehicle when it came to a stop. The driver exited — holding wads of cash in both hands — and began walking away from the officers, dropping money as he went.

The officers followed the driver, identified themselves, and ordered the man (later identified as Movant) to stop. At that point, Movant turned and began running away from the officers. Officers struggled to detain Movant, and they ultimately used a Taser to apprehend him. Through the window of the vehicle Movant had been driving, the officers saw clothing matching a description the store clerk had given them of clothing worn by the robber. They also observed a knife on the vehicle’s front floorboard.

[806]*806The money Movant had dropped was small-denomination currency, like that taken in the robbery. Movant had white residue on the soles of his shoes that matched the gravel in the alleyway by the convenience store. The tread on his shoes also matched a footprint found on a mat outside the convenience store.

Officers then transported the store clerk to the scene of Movant’s arrest, where he identified Movant as having the same physical build as the man who had robbed the store. He also identified the clothing and the knife found in Movant’s vehicle as those that had been used during the robbery.

Analysis

Movant’s sole point asserts that his appellate counsel was deficient for failing to claim on direct appeal that the State’s evidence was insufficient to support his first-degree robbery conviction.2 We disagree.

“In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced.” Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Because a movant must prove both deficient performance and resulting prejudice, “if he fails to satisfy either prong, we need not consider the other.” State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997).

“The standard of review for a claim of ineffective assistance of appellate counsel is essentially the same as that employed with trial counsel; movant is expected to show both a breach of duty and resulting prejudice.” Helmig v. State, 42 S.W.3d 658, 682 (Mo.App. E.D.2001) (citing Mallett v. State, 769 S.W.2d 77, 83 (Mo. banc 1989)). “Counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment.” State v. Jones, 979 S.W.2d 171, 180 (Mo. banc 1998).

To support a [Rule 29.15] motion due to ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it.

Moss, 10 S.W.3d at 514 (quoting Reuscher, III v. State, 887 S.W.2d 588, 591 (Mo. banc 1994)). Moreover, appellate counsel is not required “to raise every ‘colorable’ claim suggested by a clientf.]” Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); see also Lopez v. State, 300 S.W.3d 542, 552 (Mo.App. S.D.2009).

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

Related

Shannon J. Rollins v. State of Missouri
454 S.W.3d 380 (Missouri Court of Appeals, 2015)
Royer v. State
421 S.W.3d 486 (Missouri Court of Appeals, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
386 S.W.3d 803, 2012 WL 3768005, 2012 Mo. App. LEXIS 1061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-state-moctapp-2012.