State v. Leivan

103 S.W.3d 425, 2003 Mo. App. LEXIS 625, 2003 WL 1970327
CourtMissouri Court of Appeals
DecidedApril 30, 2003
Docket24889
StatusPublished
Cited by3 cases

This text of 103 S.W.3d 425 (State v. Leivan) 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
State v. Leivan, 103 S.W.3d 425, 2003 Mo. App. LEXIS 625, 2003 WL 1970327 (Mo. Ct. App. 2003).

Opinion

’ NANCY STEFFEN RAHMEYER, Chief Judge.

Richard A. Leivan (“Defendant”) appeals his conviction for manufacturing a controlled substance, a violation of § 195.211, 1 and possession of a controlled substance, a violation of § 195.202. He was sentenced, as a prior drug offender pursuant to § 195.285, to ten years imprisonment for each charge with the sentences to inn concurrently.

Defendant raises four points on appeal. Defendant’s first point claims trial court error by overruling Defendant’s motion for judgment of acquittal and motion for new trial because of the ineffective assistance of trial counsel. Defendant’s second point assigns error to the trial court in overruling Defendant’s objection to the admission of an audiotape and in allowing an officer to testify as to the contents of that audiotape. Defendant’s third point asserts the convictions were against the weight and sufficiency of the evidence. Defendant’s fourth point alleges trial court error in overruling Defendant’s objections to remarks made in the State’s closing arguments. Because of the disposition of the points presented on appeal, only a limited number of facts are necessary and will be discussed with each point. Finding no reversible error, we affirm the conviction.

Defendant’s first point claims the trial court erred in overruling Defendant’s motion for judgment of acquittal and motion for new trial because of the “constitutionally ineffective assistance of [Defendantj’s appointed counsel[J” Defendant then includes six allegations regarding the ineffective assistance of counsel. 2

Rule 29.15(a) 3 provides as follows:

A person convicted of a felony after trial claiming that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel ... may seek relief in the sentencing court pursuant to the provisions of this Rule 29.15. This Rule 29.15 provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated.

*428 0emphasis added). Under this rule, it is clear the only means of addressing Defendant’s claims of ineffective assistance of counsel are through a Rule 29.15 motion in the sentencing court. Therefore, Defendant’s first point is not reviewable by this court. Point one is dismissed.

Defendant’s second point alleges that the trial court erred in overruling defense counsel’s objection to the admission of an audiotape and in allowing Corporal Thomas Stevens (“Stevens”) testimony explaining the contents of the audiotape. At trial, defense counsel attempted to prove the elements of the entrapment defense to show Defendant was not guilty. Defense counsel, during the cross-examination of Stevens, introduced into evidence an audiotape of a conversation that occurred between Defendant and a confidential informant for the law enforcement officers. Defense counsel asked Stevens about the contents of the audiotape and offered alternative explanations for what was heard on the audiotape. 4 During redirect, the State also elicited Stevens’ testimony as to what was on the audiotape without any objection by defense counsel.

Defense counsel offered the audiotape into evidence. It is well-established “that a defendant may not take advantage of self-invited error of his own making.” State v. Mayes, 63 S.W.3d 615, 632 n. 6 (Mo. banc 2001). Defendant’s claim of error regarding the admission of the audiotape must fail.

Regarding Stevens’ testimony about the contents of the audiotape, defense counsel failed to make any objection at trial and, in fact, elicited a considerable amount of testimony from Stevens on the topic of the audiotape’s contents. Because Defendant failed to object at trial, Defendant has failed to preserve this claim for appeal and this Court may only review for plain error. State v. Barnum, 14 S.W.3d 587, 592 (Mo. banc 2000); Rule 30.20. Plain error review is to be used sparingly, and its application is limited to those cases where there is a strong, clear demonstration of manifest injustice or a miscarriage of justice. State v. Varvera, 897 S.W.2d 198, 201 (Mo.App. S.D.1995). Given the circumstances described above, we are unable to find manifest injustice or a miscarriage of justice. Point two is denied.

Defendant’s third point reads as follows:

The trial court erred in overruling [Defendant’s motion for judgment of acquittal or, in the alternative, for new trial raised at the close of the state’s evidence, and, once again, raised at the close of all of the evidence, because the convictions were against the weight and sufficiency of the evidence presented at trial or, alternatively, contrary to the weight and sufficiency of the evidence which should have been presented at trial absent the erroneous evidentiary rulings of the trial court, in that the evidence clearly established the entrapment defense raised by [Defendant], the evidence failed to establish payment of the sum of $225.00 dollars in exchange for drugs and otherwise due to the numerous trial errors raised by [Defendant].

Defendant argues that the “trial court failed to recognize the nature and quality of the evidence, which originally established the entrapment defense raised by [Defendant] and, further, on the additional basis of the trial errors which occurred before the end of the State’s case, which *429 separately compels setting aside of the judgment....”

We are at a loss to ascertain the meaning of Defendant’s point. Further, the argument in support of this point is totally inadequate and fails to enlighten us as to the meaning of the point relied on. The argument consists of a subheading and two brief paragraphs, which are then repeated in their entirety. Neither the subheading nor the two paragraphs attempts to explain the issues raised. Defendant offers no additional support and fails to cite a single case, beyond the applicable standard of review, supporting this point. Consequently, this justifies a decision the point has been abandoned. Koenig v. State, 17 S.W.3d 911, 911-12 (Mo.App. W.D.2000). Point three is denied.

Defendant’s fourth point contends that the trial court erred in overruling trial counsel’s objections to remarks made in the State’s closing arguments because certain remarks were an impermissible comment on Defendant’s post-Miranda 5 silence and other remarks constituted improper personal vouching for the police officer. During closing arguments, the State made reference to the fact that Defendant did not present the entrapment defense at the time of his arrest but several months later.

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Related

State v. Tipton
314 S.W.3d 378 (Missouri Court of Appeals, 2010)
State v. Edberg
185 S.W.3d 290 (Missouri Court of Appeals, 2006)
State v. Gilbert
121 S.W.3d 341 (Missouri Court of Appeals, 2003)

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Bluebook (online)
103 S.W.3d 425, 2003 Mo. App. LEXIS 625, 2003 WL 1970327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-leivan-moctapp-2003.