State v. McCarter

820 S.W.2d 587, 1991 Mo. App. LEXIS 1634, 1991 WL 216065
CourtMissouri Court of Appeals
DecidedOctober 29, 1991
DocketNos. 55773, 59207
StatusPublished
Cited by9 cases

This text of 820 S.W.2d 587 (State v. McCarter) 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. McCarter, 820 S.W.2d 587, 1991 Mo. App. LEXIS 1634, 1991 WL 216065 (Mo. Ct. App. 1991).

Opinion

KAROHL, Judge.

This is a consolidated direct appeal and appeal from denial of defendant’s Rule 29.15 motion. The indictment charged felony murder in the first degree, § 565.020.1 RSMo 1986, and armed criminal action, § 571.015 RSMo 1986. The jury’s verdict convicted defendant of voluntary manslaughter in violation of § 565.023 RSMo 1986 and armed criminal action. The trial court sentenced defendant as a prior offender to a term of fifteen years imprisonment for voluntary manslaughter and consecutive life imprisonment for armed criminal action. We affirm.

Viewing the evidence in the light most favorable to the verdict the evidence is as follows. On December 8, 1987, Drumson Jones, and two others were leaving their home when defendant knocked on the neighbor’s door. As the three descended the front stairs defendant confronted Jones asking, “Don’t I know you?” Jones said “No.” Defendant replied “Ain’t you the guy who drove down on me on Natural Bridge?” Further words were exchanged. Defendant walked towards his car, Jones began to take off his sweater and walk towards his house. Defendant then said to Jones “Where are you going, Punk?” Defendant drew a gun and fired two shots at Jones. One shot hit him in the back which caused his death. Defendant drove away with another man, Jeff Cooley, who was standing near the car and witnessed the shooting.

On direct appeal, defendant claims the trial court abused its discretion in denying his motion for continuance. The motion was made orally on the morning of trial. It was grounded on the need for additional time to secure the testimony of a witness, the absence of which, denied him a fair trial because this witness’ testimony could have served to either corroborate the self-defense theory, or, enable defendant to refrain from testifying and thus keep his criminal record from the jury.

In the oral motion, defendant alleged Cooley, an eye witness to the shooting, has not been located, has left town and has no exact address at which he can be located. Furthermore, counsel stated “We are not sure if we can ... find this man.” Defendant also alleged Cooley could testify to the fact Jones threatened defendant. That testimony would corroborate testimony of defendant if he testified or alleviate the need to put defendant on the stand.1

The grant or denial of a motion for continuance rests within the sound discretion of the trial court. State v. Sweet, 796 S.W.2d 607, 613 (Mo. banc 1990). It will not be disturbed absent a strong showing of abuse. Id. Before refusal to grant a continuance will be construed an abuse of discretion defendant must demonstrate denial is prejudicial. State v. Edwards, 657 S.W.2d 343, 345 (Mo.App.1983).

Rule 24.09 requires, unless the adverse party consents to an oral motion, a written motion together with an affidavit setting forth the factual basis of the motion for continuance. When the ground for continuance is absence of a witness, the party requesting the continuance must state [589]*589facts showing the materiality of the testimony, due diligence upon the part of defendant to obtain the witness’s testimony, the particular facts the witness will prove, and reasonable grounds to believe the attendance or testimony of the witness can be procured within a reasonable time. Rule 24.10. All of these factual matters are essential to a proper consideration of the motion and to allow appellate review.

The record in this case indicates application for continuance was made orally on the day of trial. This was insufficient on the matter well known before trial. It did not comply with the requirements of Rule 24.09. Defendant’s failure to request the continuance by written motion accompanied by an affidavit is sufficient grounds to affirm the trial court’s ruling. State v. Anderson, 785 S.W.2d 299, 302 (Mo.App.1990). This is particularly true where the factual basis for the motion was not a last minute or unexpected surprise. We find no facts alleged or proven to establish due diligence on the part of defendant to obtain the presence of the witness. Defendant did not allege “particular facts” Cooley would prove. The motion merely contains conclusory statements of “corroboration.” Moreover, defendant conceded the witness may not ever be located or produced. The trial court’s denial of the motion cannot be construed as an abuse of discretion.2 Point denied, judgment and sentence affirmed.

Defendant’s other point pertains to denial of Rule 29.15 relief after evidentiary hearing. He alleged ineffective assistance of counsel for failure to contact and investigate an essential witness, Jeff Cooley. Defendant filed his pro se 29.15 motion on July 17, 1990. He amended that motion, pro se, on October 6, 1990. On that same day, appointed counsel filed an amended motion on defendant’s behalf and incorporated the original pro se motion.3

The state claims counsel’s amended motion did not incorporate defendant's pro se amended motion, which contained his allegation of ineffective assistance of counsel, and therefore, this claim is not properly before the court. To support this proposition state relies on Pool v. State, 634 S.W.2d 564 (Mo.App.1982). In Pool, the defendant filed a 122 page pro se Rule 27.26 motion. The court did not want counsel to amend the pro se motion by adding additional allegations. Rather, the court indicated counsel’s amended motion should have replaced the pro se motion and “state factually in lawyerlike fashion the basis for all claims for relief under Rule 27.26.” Id. at 566. This approach does not support the state’s position that an earlier motion not incorporated in counsel’s amended motion is a nullity. The court in Pool, merely indicated what counsel should have done, given the state of that pro se motion. Moreover, Rule 29.15(e) states that counsel’s amended motion shall allege additional facts and grounds; and Rule 29.15(f) states any amended motion shall be verified and filed within thirty days of counsel’s appointment. The language of the rule does not limit consideration of issues only to those contained in counsel’s amended motion where the intention to incorporate is clear. Therefore, issues pleaded in defendant’s amended pro se motion were properly presented to the trial court. They are properly here for review.

To prove a claim of ineffective assistance of counsel, appellant must show: (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order for appellant to prove that [590]*590he was prejudiced by his counsel’s deficient performance, he must show but for counsel’s errors a reasonable probability exists that a different outcome would have resulted. Sanders, 738 S.W.2d at 860-861. If a defendant fails to pass either prong, his ineffective assistance of counsel claim will fail.

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Cite This Page — Counsel Stack

Bluebook (online)
820 S.W.2d 587, 1991 Mo. App. LEXIS 1634, 1991 WL 216065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mccarter-moctapp-1991.