Shive v. State

784 S.W.2d 326, 1990 Mo. App. LEXIS 147, 1990 WL 4115
CourtMissouri Court of Appeals
DecidedJanuary 22, 1990
DocketNo. 16016
StatusPublished
Cited by2 cases

This text of 784 S.W.2d 326 (Shive 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
Shive v. State, 784 S.W.2d 326, 1990 Mo. App. LEXIS 147, 1990 WL 4115 (Mo. Ct. App. 1990).

Opinion

FLANIGAN, Presiding Judge.

Movant Lyndall Shive appeals from an order of the trial court denying, without an evidentiary hearing, his Rule 29.151 motion to set aside a judgment and sentence for stealing. The conviction, based on a jury verdict, was affirmed by this court, State v. Shive, 620 S.W.2d 412 (Mo.App.1981).

Movant asserts that the contents of his motion entitled him to an evidentiary hearing, and the trial court erred in ruling otherwise, because his motion “alleged suf[327]*327ficient facts not refuted by the record entitling movant to relief in that [the motion] sufficiently alleged that [movant] received ineffective assistance of counsel prior to and at trial, that he received ineffective assistance of counsel on direct appeal, and that he was convicted through the use of perjured testimony by [the state].” Specifically, movant contends that his motion sufficiently alleged that his trial counsel at the jury trial was ineffective in the following respects: (1) “failing to object to the prejudicial testimony of state’s witness Greene”; (2) failing “to sufficiently argue on appeal all eleven points of error that were properly preserved in movant’s new trial motion.” Movant also claims that his motion sufficiently alleged “that he was convicted at trial through the use of perjured testimony knowingly elicited by the state.”

This court’s review is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. State v. Taylor, 779 S.W.2d 636, 644 (Mo.App.1989); Rule 29.15(j). To entitle movant to an evidentiary hearing on the issue of ineffectiveness of counsel, the motion must plead facts, not conclusions, which if true would warrant relief, and the matters complained of must have resulted in prejudice to movant. State v. Taylor, supra, at 644.

The underlying criminal trial involved two automobiles which were stolen from Reliable Chevrolet in Springfield, “some time between closing Saturday and Monday morning.” State v. Shive, supra, at 412. On Monday the two stolen vehicles, driven by accomplices, and a third vehicle driven by movant, arrived at a warehouse in Bates County. Sgt. Viessman and Trooper Hill of the Missouri State Highway Patrol had established an undercover “sting operation” at the warehouse, where they “bought” stolen merchandise. Id. At the warehouse movant participated in the “sale” of these stolen vehicles to the officers.

Movant’s first point claims that his trial counsel at the jury trial was ineffective in failing to object to the testimony of state’s witness Greene. The two stolen vehicles, one of which was a Thunderbird, arrived at the warehouse on March 26, 1979. At the jury trial Greene testified that “in early March 1979” he and his wife owned the Thunderbird and on March 3, 1979, they ordered a new car from Reliable Chevrolet. Greene delivered the Thunderbird to Reliable on March 3 and never saw it again. He identified Exhibit 3 as his order for the new car. He identified Exhibit 4 as a power of attorney executed by him and his wife on March 6, 1979 which “would allow Reliable to execute the title, whatever documentation needed to be executed on our behalf so we wouldn’t have to go back and mess with it anymore.” He identified Exhibit 5 as a Missouri title certificate showing him and his wife as owners of the Thunderbird. Greene testified that in March 1979 he did not know movant and did not give movant permission to remove the Thunderbird from Reliable’s lot. Mov-ant’s trial counsel made no objection to Greene’s testimony or to the introduction of the exhibits.

The statement of facts portion of mov-ant’s brief, contrary to the requirement of Rule 84.04(c), makes no mention of witness Greene or any of his testimony or of any portion of the motion mentioning same. Movant’s first point has not been preserved. Rule 84.13(a). The argument portion of his brief states that the testimony of Greene “was irrelevant, prejudicial, and improperly admitted to bolster the state’s case in chief against movant.” The brief also states: “Witness Greene improperly testified without objection from movant’s counsel that he did not give movant permission to drive the [Thunderbird] when in fact witness Greene did not own the automobile at the time it was allegedly stolen. The testimony of witness Greene severely prejudiced movant because the state could infer (sic) to the jury through his testimony that since witness Greene did not give permission to movant to take the motor vehicle that movant must have stolen the vehicle.”

At the jury trial state’s witness Joe Good, used car sales manager of Reliable Chevrolet, testified that on Saturday, March 24, 1979, at 6:00 p.m., the Thunder[328]*328bird was on the Reliable used car lot. The vehicle was locked and the keys were “in the used car building.” On the following Monday the Thunderbird and the other stolen vehicle were missing. He testified that the Thunderbird was “owned by Reliable Chevrolet.” He also testified that he did not give movant or anyone else permission to remove the Thunderbird from Reliable’s lot.

Also at the jury trial Jim Cassity, business manager of Reliable Chevrolet, referred to the various exhibits previously identified by witness Greene. He testified that, using the power of attorney, he signed Greene’s name on the back of Exhibit 5.

Movant seems to be arguing that his trial counsel was ineffective in failing to object, on the ground that Greene did not own the Thunderbird, to Greene’s testimony concerning lack of permission. Movant brands such testimony as “irrelevant.” If it was irrelevant, it is difficult to see how its presence could have prejudiced movant.

In view of the fact that the title to the Thunderbird was in the process of being transferred from Greene to Reliable, or perhaps later to a customer of Reliable, it is by no means clear that a valid objection could have been made to Greene’s testimony. Trial counsel cannot be faulted for failing to interpose an invalid objection.

Movant has failed to show, and has failed to point to any portion of his motion purporting to claim, that Greene’s testimony was both objectionable and prejudicial. Movant’s first point has not been preserved, and a gratuitous examination of it discloses no merit.

Movant’s second point is that his trial counsel at the jury trial was ineffective in failing to “argue” [brief and argue?], on the direct appeal from the conviction, “all eleven points of error that were properly preserved in movant’s new trial motion.”

No portion of movant’s brief sets forth any of the points which was allegedly not “argued.” Since the brief does not inform this court what any point was, it also fails to inform this court whether any unargued point was meritorious and why it was meritorious. Movant’s Rule 29.15 motion has the same deficiencies.

The predecessor of Rule 29.15 was Rule 27.26, which was repealed effective January 1, 1988, by order of the Supreme Court of Missouri. In Mallett v. State, 769 S.W.2d 77, 83, fn. 5 (Mo. banc 1989), the supreme court said:

“Generally claims of ineffective assistance of appellate counsel are not cognizable in 27.26 proceedings, but are more appropriately presented to the appellate court in the form of a motion to recall mandate.

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Related

Rayborn v. State
290 S.W.3d 123 (Missouri Court of Appeals, 2009)
State v. Dudley
819 S.W.2d 51 (Missouri Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
784 S.W.2d 326, 1990 Mo. App. LEXIS 147, 1990 WL 4115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shive-v-state-moctapp-1990.