Ricks v. State

774 S.W.2d 157, 1989 Mo. App. LEXIS 1088, 1989 WL 82294
CourtMissouri Court of Appeals
DecidedJuly 26, 1989
DocketNo. 15947
StatusPublished

This text of 774 S.W.2d 157 (Ricks 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
Ricks v. State, 774 S.W.2d 157, 1989 Mo. App. LEXIS 1088, 1989 WL 82294 (Mo. Ct. App. 1989).

Opinion

GREENE, Judge.

Movant, Danny Ricks, appeals the denial, after evidentiary hearing, of his motion to vacate his second degree murder conviction and resulting sentence of 45 years’ imprisonment. We affirm.

The murder conviction was affirmed on direct appeal. State v. Ricks, 642 S.W.2d 375 (Mo.App.1982). That opinion cited the following facts. Johnny Ricks, who was Danny’s brother, was the murder victim. Johnny shot Danny’s wife, Vickie, in the leg. Danny was not present at the time of the shooting. Shortly thereafter, Johnny was in or near his automobile when he was confronted by Danny. There was evidence that Johnny told Danny the shooting of Vickie was accidental and then raised his [158]*158hands. Danny then shot Johnny five times, with two of the bullets entering Johnny’s left chest area. Johnny died as a result of the wounds. Danny claimed his actions in shooting Johnny were in self-defense because Johnny was lying on the front seat of his car, reaching for a pistol in the glove compartment when Danny shot him. The jury rejected the defense, and returned a verdict of guilty of second degree murder.

After the conviction was affirmed on appeal, Danny filed a motion to vacate his conviction, which motion, after amendment by court-appointed counsel, alleged, among other things not relevant here since court rulings regarding such issues are not presented here as grounds for appeal, ineffective assistance of trial counsel. He claimed his counsel rendered ineffective assistance in failing to subpoena as witnesses at trial persons who would establish by their testimony that Danny acted in self-defense when he shot his brother. An evi-dentiary hearing was held at which time Danny introduced the testimony of witnesses in support of his ineffective assistance of counsel claim, the most notable being Terry Loman and Willie Harris.

After the hearing, the motion court made written findings of fact and conclusions of law and entered an order denying the motion to vacate. In regard to the ineffective assistance of trial counsel issue that has been preserved on appeal, the motion court, in its findings, stated:

Movant states his trial counsel failed to subpoena for a trial certain persons to testify on Movant’s behalf, which Movant states that he provided the address of points of contact for his trial attorney, but that his trial attorney failed to contact them. As to these witnesses, the Court finds that their testimony would have been either immaterial or cumulative. Further, the Court finds that Mov-ant failed to show that these witnesses would have aided Movant in his trial or that the failure to call these witnesses resulted in a prejudice to Movant.

In its conclusions, the motion court stated:

It is the conclusion of this Court that Movant’s Motion and evidence adduced contain no facts warranting relief; that all facts alleged by Movant are refuted by the files, records and testimony adduced in this case; in any matters complained of do not result in prejudice to Movant.
The Court, therefore, hereby orders, judges and decrees that Movant’s Motion be and is hereby ordered overruled.

In his sole point relied on in his appeal from the order denying relief, the attorney for Danny Ricks contends the trial court erred in finding that the testimony of potential witnesses, who were not subpoenaed by Rick’s trial attorney and did not testify at trial, would have been immaterial and cumulative, and further finding that Ricks had failed to show at the evidentiary hearing that those witnesses testimony would have aided Ricks, or that failure of his lawyer to use those witnesses resulted in prejudice to Ricks because:

[t]he appellant alleged his trial attorney rendered ineffective assistance of counsel for failing to subpoena for trial to testify on behalf of appellant Terry Lo-man, Willie Harris and Jesse Foreman, because appellant testified that he provided the names and addresses or points of contact for his trial attorney to contact these persons and that their testimony would have provided a viable defense which was Mr. Ricks acted in self-defense, and the appellant was prejudiced thereby because at the appellant’s jury trial, Terry Loman, Willie Harris and Jesse Foreman did not testify and because at trial, appellant’s trial attorney called Ricky Carter to testify that he heard a shot from outside the house of Danny Ricks on May 20, 1981, and upon hearing the shot he entered into the Ricks’ house, saw a pistol laying on the bed and saw Vickie Ricks bleeding, and because the trial attorney called Jo Ann Jackson who testified she was a guest at the Ricks’ home on May 20, 1981, and that she saw Johnny Ricks display a gun and the trial attorney called Paul Isom, who said he was Danny Ricks’ father-in-law, who testified he saw his daughter, Vickie, was bleeding from a gun shot in her right leg, and at jury trial the appel[159]*159lant testified his brother reached into the glove compartment of his brother’s car to get his gun and that the appellant acted in self-defense.

We gather from this that defense counsel is contending that the testimony of Terry Loman, Willie Harris, and Jesse Foreman would have corroborated alleged trial testimony of Danny Ricks that he shot his brother in self-defense.

Since Danny Ricks’ sentence of 45 years was pronounced, and his post-conviction motion was filed before January 1, 1988, his claim requesting post-conviction relief is governed by the provisions of Rule 27.26, which was in effect on the date the post conviction motion was filed. Rule 29.15(m). Our review under that rule is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 27.26(j) (repealed January 1, 1988).

Since the only point of claimed error preserved by Ricks is ineffective assistance of trial counsel, we apply the two-part test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to see if the facts and law on this issue entitle Ricks to the relief he requests. Strickland holds that a movant must not only prove that his lawyer’s representation fell below an objective standard of reasonableness, but must also prove that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the trial could have been different. Id. 104 S.Ct. at 2066. Our State has reiterated the Strickland test in Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

Here, Ricks proved neither. According to the opinion of State v. Ricks, which is the only record we have as to what happened at trial, since movant’s counsel has not filed the trial transcript or legal file as a part of the record in this case, Danny Ricks testified that Johnny was lying on the front seat of his car while he and Danny were discussing the earlier shooting of Danny’s wife by Johnny, at which time Johnny reached for a pistol in the glove compartment after which Danny shot him five times. The jury either did not believe Danny’s story, or, if they did, did not believe that he shot his brother in self-defense.

At the evidentiary hearing on the motion to vacate, Danny’s trial attorney testified as follows:

Q. Mr.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Sanders v. State
738 S.W.2d 856 (Supreme Court of Missouri, 1987)
State v. Ricks
642 S.W.2d 375 (Missouri Court of Appeals, 1982)

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Bluebook (online)
774 S.W.2d 157, 1989 Mo. App. LEXIS 1088, 1989 WL 82294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ricks-v-state-moctapp-1989.