Starr v. State

788 S.W.2d 549, 1990 Mo. App. LEXIS 719, 1990 WL 59430
CourtMissouri Court of Appeals
DecidedMay 9, 1990
DocketNo. 16497
StatusPublished
Cited by1 cases

This text of 788 S.W.2d 549 (Starr 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
Starr v. State, 788 S.W.2d 549, 1990 Mo. App. LEXIS 719, 1990 WL 59430 (Mo. Ct. App. 1990).

Opinion

CROW, Presiding Judge.

Ricky Starr (“movant”) appeals from the denial of his motion per Rule 27.26, Missouri Rules of Criminal Procedure (17th ed. 1986), to vacate his conviction of murder in the second degree and 25-year prison sentence. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Starr, 676 S.W.2d 311 (Mo.App.1984).

Movant’s 27.26 motion was denied by the circuit court (“the hearing court”) after an evidentiary hearing. In this appeal movant presents one point relied on; it reads:

“The hearing court clearly erred in denying appellant’s motion for postconviction relief ... because appellant was denied his right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, in that trial counsel refused to move for a change of venue despite appellant’s request, and despite the fact that there had been adverse pretrial publicity in the county, which was a county having less than seventy-five thousand inhabitants, so that a change of venue would have been ordered as of right merely by filing a timely motion, thereby insuring [sic] a jury panel untainted by adverse pretrial publicity.”

Movant testified in the hearing court that prior to the jury trial he asked his lawyer (“trial counsel”) to file a motion for change of venue. Movant quoted trial counsel as saying he would not do so because “it wouldn’t matter ... we would have the same jury panel there as we would here.”

The State presented trial counsel as a witness in the hearing court. Trial counsel’s testimony included this:

“Q. ... Mr. Starr also testified that he had requested that you file a change of venue.
A. No, he didn’t.
Q. Okay. Did you all discuss a change of venue?
A. I always discuss that.
Q. Do you always inform them of that—
A. Of their right to the change of venue. However, I would have recommended that he not take the change of venue.
Q. Okay. But you don’t remember that you did recommend it?
A. I don’t remember that, but Í would have—
Q. But if he’d have—
A. That would have been my policy on defending this lawsuit.
Q. All right, sir. If he had insisted on it, would you have filed it, sir?
A. If he had insisted on it, I would have filed it.
[551]*551Q. Okay. What was your reason for thinking that you didn’t need a change of venue?
A. Oh, I think I would have known the jurors better here in New Madrid County than anybody else, and his family was all from New Madrid County, and I think we’d have done better here than we would anywhere else in defending the lawsuit.
Q. You testified, also, that you discussed the change of venue with the Defendant because you always discuss the change of venue?
A. I always do that, yes.
Q. Is your statement here today that you discussed that with Mr. Starr based on your policy or your recollection of your conversation with Mr. Starr?
A. I’m sure Mr. Starr and I discussed that matter.
Q. And do you specifically recall doing that?
A. You mean, at the jail, do I recall whether I — what my conversation with him at that time was?
Q. Yes.
A. Word for word, no, I can’t do that.
Q. I’m not asking you for word for word ... just simply whether you specifically do recall doing that?
A. Oh, I’m — I—I’m sure I did it. Now, whether I can recall that specific instant or not, I can’t—
Q. So, you cannot—
A. —tell you.
Q. —specifically recall doing that. You’re just sure you must have; is that what you’re saying?
A. Well, I’m sure I did.
Q. Did you consider pretrial publicity in making a determination as to whether there should be a change of venue in this case?
A. Yes.
Q. Did you review any articles or newspaper coverage in this case?
A. I take the papers in the area, and I’d read them all.
Q. Okay. Do you recall whether there were any articles regarding this shooting?
A. Certainly.
Q. And do you know how many articles there were?
A. There were a number.
Q. Do you recall what that number was?
A. Oh, I can’t do that.
Q. Do you recall whether there was any coverage by radio station of this shooting?
A. Well, I don’t remember hearing any.
Q. Do you recall if there was any coverage by television station?
A. I don’t recall any.
Q. Did you check with the local television stations that are broadcast here in this — in New Madrid County to—
A. No,—
Q. —determine?
A. —I wouldn’t have done that.
Q. Would you have checked with the radio stations to determine whether—
A. No, I wouldn’t—
Q. —they had aired anything?
A. —have done that.
Q. Would you have checked with the newspaper to determine exactly how many articles had been printed — or published regarding this shooting?
A. I take most of the papers of the area and read them regularly.
Q. But you did not actually check with the publisher to determine how many had been published?
A. Oh, no, I wouldn’t do that.”

Trial counsel testified he had been a lawyer since 1940, had handled hundreds of criminal cases, and had defended over 40 murder cases before a jury. Trial counsel added that in preparing for movant’s trial he (counsel) went through the jury list and checked the jurors against files in his office “as to what previously those jurors had done in previous criminal cases.”

The hearing court found that “none of the allegations as to the failure to request [552]*552a change of venue ... were proved by a preponderance of the evidence.”

Our review is limited to a determination of whether the findings, conclusions, and judgment of the hearing court are clearly erroneous. Rule 27.26(j); Jones v. State,

Related

State v. Dunmore
822 S.W.2d 509 (Missouri Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
788 S.W.2d 549, 1990 Mo. App. LEXIS 719, 1990 WL 59430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/starr-v-state-moctapp-1990.