State v. Martin

775 S.W.2d 196, 1989 Mo. App. LEXIS 860, 1989 WL 62845
Missouri Court of Appeals·Decided June 13, 1989·No. Nos. 53827, 55315·Published·Cited by 1 cases

Opinion

KAROHL, Judge.

Defendant, Charles Martin, was convicted by jury of burglary first degree, in violation of § 569.160 RSMo 1986, and sentenced as a class “X” offender under § 558.019 RSMo 1986, to twenty-five years imprisonment. The appeal from his convic[197]*197tion was stayed because defendant filed a motion for post conviction relief pursuant to Rule 29.15. On direct appeal, defendant claims the trial court erred in: (1) applying § 558.019 RSMo 1986 retroactively and sentencing defendant as a class “X” offender in violation of constitutional provisions prohibiting ex post facto laws; and, (2) overruling defendant’s challenge for cause of a venireperson. In his Rule 29.15 motion defendant claims ineffective assistance of counsel for trial counsel’s failure to investigate and call a witness. We affirm.

In the early morning of December 17, 1986, two police officers responded to a burglar alarm at a lounge in north St. Louis. The officers saw defendant climbing out a broken window at the lounge. The officers apprehended defendant and one of the officers conducted a pat down search of defendant. The officer found a knife with a five-inch blade inside one of defendant’s pockets. The officers arrested defendant. Defendant had $24.45 in his possession, consisting of a ten dollar bill, a five, and a one, thirty quarters and nineteen nickels. The owner of the lounge stated a “ten and a five and some ones and some change” was stolen from the lounge during the burglary.

Defendant denied burglarizing the lounge. He contended that while he was walking to a bus stop he saw two men climbing out the lounge window. He claimed he frightened the two men off, went up to the broken window to look inside the lounge and at that point the police officers arrived.

Defendant’s first claim of error on direct appeal is the trial court erred in sentencing him as a class “X” offender under § 558.019 RSMo 1986. He claims the statute, as applied to him in this case, is an ex post facto law in violation of the U.S. Const., Art. I, § 10, and the Mo. Const., Art. I, § 13. An ex post facto law is one which enlarges the penalty for a crime after the date of violation or declares acts as criminal which did not constitute crimes when they were committed. State v. Hillis, 748 S.W.2d 694, 697 (Mo.App.1988). To establish an ex post facto violation, a law must be retrospective and disadvantage the offender affected by it. Id. Section 558.-019 RSMo 1986 provides enhanced sentencing for repeat offenders. It requires a class “X” offender to serve at least eighty percent of his sentence before becoming eligible for parole. The burglary occurred on December 17, 1986. The statute did not go into effect until January 1, 1987.

The Supreme Court of Missouri has determined § 558.019 RSMo 1986 disadvantages a defendant and cannot be applied retroactively. State v. Lawhorn, 762 S.W.2d 820, 824-26 (Mo. banc 1988). See also, State v. West, 766 S.W.2d 103, 112-13 (Mo.App.1989); State v. Hillis, 748 S.W.2d at 697-98 (Mo.App.1988). Section 558.019 RSMo 1986 requires a defendant to serve more time in jail before becoming eligible for parole than was required before the statute went into effect. This change in parole eligibility operates to the disadvantage of a defendant, and applying the statute retroactively violates the ex post facto clause of the United States and Missouri Constitutions. See, Lawhorn, 762 S.W.2d at 826. The trial court erred in sentencing defendant as a class “X” offender under § 558.019 RSMo 1986. We remand for sentencing.

Defendant’s second claim of error on direct appeal is the trial court erred in failing to strike venireperson O’Brien for cause. Defendant contends O’Brien could not fairly evaluate police officer testimony because during voir dire she stated she believed a police officer would not lie while testifying unless personally involved in a case. We find the court did not err in failing to strike venireperson O’Brien for cause.

A trial court has wide discretion in determining whether a juror is qualified. State v. Griffin, 756 S.W.2d 475, 481 (Mo. banc 1988). The critical question is whether a venireperson’s responses indicate an ability to evaluate evidence fairly. State v. Lingar, 726 S.W.2d 728, 734 (Mo. banc 1987), cert. denied, 484 U.S. 872, 108 S.Ct. 206 98 L.Ed.2d 157. Defendant claims O’Brien’s responses during voir dire indicate she could not fairly judge the credibili[198]*198ty of a police officer as compared to other witnesses. Her responses during voir dire were as follows:

Mr. Jamieson. [Prosecutor] Would you have any problem judging the credibility of a policeman?
A. No.
Mr. Jamieson. Would you judge a policeman as you would any other witness that was testifying from the stand?
A. Yes.
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Ms. Moss. [Defense Counsel] Do you think a police officer can take the stand and lie?
A. Not really.
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Mr. Jamieson. We’re not asking whether you necessarily believe that all police officers are liars, okay, just because they’re policemen, and we don’t expect you to believe that all police officers necessarily tell the truth just because they’re police officers, okay?
A. Right.
Mr. Jamieson. But do you believe first of all that given the right set of circumstances or wrong set of circumstances anybody could lie about a certain thing? Would that be a fair statement that anyone is capable of lying?
A. Right. Yeah.
Mr. Jamieson. Would you believe that anybody whether it be a policeman or any other job could lie about something? Do you believe that possibility exists? A. I think anybody can lie but I think it all depends on the circumstances of what you can believe that person is or not. ******
Ms. Moss. Ma’am, I asked you that earlier and you said that you didn’t think a police officer could lie on the stand.
A. I said not really but to me it would all depend on the case, you know, if they’re personally involved I feel that they can lie, but if they’re not personally involved then I think that they would not.
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The Court. So that I understand that in response to a question there are circumstances under which you believe that a police officer would tell a lie, is that what you’re saying?
A. Right.
The Court. You would be able to judge his credibility as to whether or not he was lying?
A. Yes.

O’Brien’s answers indicate she could fairly evaluate police officer testimony. She agreed a police officer may lie in some instances.

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State v. Martin, 775 S.W.2d 196, 1989 Mo. App. LEXIS 860, 1989 WL 62845 (Mo. Ct. App. 1989).

775 S.W.2d 196 (State v. Martin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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