State v. Davis

900 S.W.2d 649, 1995 Mo. App. LEXIS 1080, 1995 WL 351518
Missouri Court of Appeals·Decided June 8, 1995·No. Nos. 17669, 19496·Published·Cited by 3 cases

Opinion

CROW, Judge.

A jury found Appellant, Ivory Joe Davis, guilty of robbery in the first degree, § 569.020,1 and armed criminal action, § 571.015, and assessed punishment at imprisonment for fifteen years and ten years, respectively. The trial court imposed those sentences, running them consecutively. Appellant brings appeal 17669 from that judgment.

While that appeal was pending, Appellant filed a motion to vacate the judgment and sentences per Rule 29.15.2 Following an evi-dentiary hearing, the motion court entered an order denying relief. Appellant brings appeal 19496 from that order.

We consolidated the appeals, Rule 29.15(1), but address them separately in this opinion.

Appeal 17669

Neither of Appellant’s two points relied on assigns error regarding the judgment from which appeal 17669 is taken. Consequently, Appellant has abandoned appeal 17669. State v. Gongora, 866 S.W.2d 172, 174[5] (Mo.App.S.D.1993); State v. Berry, 798 S.W.2d 491, 493—94[1] (Mo.App.S.D.1990). The judgment referred to in the first paragraph of this opinion is affirmed.

Appeal 19496

Both of Appellant’s points relied on aver the motion court erred in denying posteonviction relief in that the lawyer who represented Appellant at trial (“defense counsel”) rendered ineffective assistance. These claims require a brief account of the State’s evidence at trial.

The robbery occurred December 15, 1989, at Security Locksmith and Service Station in Sikeston. Michael Tinnin, an employee, was on duty that evening.

The chain of events began when Lonnie Ruff, a customer whom Tinnin had seen on 25 to 30 previous occasions, entered the station and asked Tinnin whether he (Ruff) could charge a pack of cigarettes. Ruff departed after four or five minutes.

Another man came into the station. He was alone. Tinnin had never seen him before. The stranger told Tinnin his car broke down and asked to use the telephone. Tin-nin conversed briefly with the stranger, who departed after some five minutes.

The stranger returned about 8:30 p.m., and sat on a stool beside the door. Tinnin thought the stranger was “acting real funny.” A customer pulled up; Tinnin and the stranger went outside.

[652]*652Tinnin saw the stranger again about 8:55 p.m. Tinnin was “bent over” at the gas pumps writing down a number. The stranger was standing beside Tinnin. Simultaneously, Tinnin saw Ruff enter the station.

The stranger said, “I have a gun.” The stranger “pulled out” a pistol, grabbed one of Tinnin’s arms, and took Tinnin into the station.

Holding the pistol against Tinnin, the stranger told Tinnin to open the register. Tinnin complied. The stranger and Ruff took between $150 and $160.

Ruff told the stranger, “Come on.” The stranger pulled Tinnin outside and demanded his wallet. The stranger and Ruff then departed.

Tinnin ran inside the station, locked the door, and called police.

Tinnin looked at “two books of pictures” at the Sikeston Department of Public Safety that night, but was unable to identify a suspect.

The next morning, Ruff learned police were looking for him. He turned himself in.

That night (December 16), Appellant was arrested in Sikeston. He was fingerprinted and photographed.

Detective William E. Stokes, Jr. of the Sikeston Department of Public Safety showed Tinnin a “photo lineup” consisting of Appellant’s photograph and four other photographs. Tinnin identified Appellant’s photograph as a photograph of the stranger who, jointly with Ruff, committed the robbery.

Tinnin identified Appellant in person at the preliminary hearing. Appellant was the only person there in an orange jail uniform.

On the morning of trial, before voir dire, defense counsel filed a “Motion to Suppress Identification,” praying the trial court to suppress any evidence that Tinnin had previously identified Appellant, either by photograph or in person, and to suppress “any future in-court identification” of Appellant by Tinnin. The motion averred the five-photograph display from which Tinnin identified Appellant was “so unduly suggestive as to give rise to a substantial likelihood of irreparable misiden-tification.” The motion also complained that when Tinnin identified Appellant at the preliminary hearing, Appellant was the only person in the courtroom in a jail uniform.

The trial court asked defense counsel whether he wanted to present evidence. Defense counsel told the trial court that the State “has a copy of the five photographs.” The prosecutor told the trial court that the police officers would have the photographs when the officers arrived.

The trial court announced:

“Counsel, since this motion really doesn’t address me at this time, I will take it under advisement, and I presume — will he be identifying in the courtroom? It becomes a moot question, so I will take it under advisement for you.”

During presentation of the State’s evidence, without further mention of the motion by the trial court and without objection by defense counsel, Tinnin, in the jury’s presence, identified Appellant as the stranger who, jointly with Ruff, committed the robbery.

Ruff, testifying as a State’s witness pursuant to a plea agreement, identified Appellant as the man with whom he (Ruff) committed the robbery.

The averment of ineffective assistance of counsel in Appellant’s first point is that defense counsel was derelict in “failing to request a continuance in order to better prepare for trial and enable him to interview witnesses; depose witnesses; investigate the case; prepare, file and request hearings on motions; and present evidence in support of said motions.” We glean from the argument following the point that Appellant’s specific complaints are that defense counsel failed to present Karen Sue Dockins as a witness, failed to present Roger Crites as a witness, and failed to challenge the legality of Appellant’s arrest.

The motion court’s findings do not address those complaints individually. The only findings arguably pertinent to them are:

“The court further finds that petitioner was not prejudiced in his defense and did not receive ineffective assistance of counsel [653]*653because his attorney visited with petitioner a few days before the actual trial.
The court further finds that petitioner’s trial counsel’s decision not to present certain items of evidence ... did not prejudice petitioner and did not affect the outcome of the trial.... The court finds that petitioner did not receive ineffective assistance of counsel.”

Our review of the motion court’s findings and conclusions is limited to a determination of whether they are clearly erroneous. Rule 29.15(j); State v. Starks, 856 S.W.2d 334, 336[1] (Mo. banc 1993). We brand them clearly erroneous only if a review of the entire record leaves us with a definite and firm impression that a mistake has been made. State v. Vinson, 800 S.W.2d 444

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State v. Davis, 900 S.W.2d 649, 1995 Mo. App. LEXIS 1080, 1995 WL 351518 (Mo. Ct. App. 1995).

900 S.W.2d 649 (State v. Davis) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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