State v. Turner

623 S.W.2d 4

• Court: Supreme Court of Missouri
• Decided: November 10, 1981
• Docket: 61974
• Status: Published

Opinions

RENDLEN, Judge.

Convicted on two counts of capital murder and sentenced to consecutive terms of life imprisonment without probation or parole for 50 years, § 565.008.1, RSMo 1978, defendant seeks review in this Court. The cause falls within our exclusive appellate jurisdiction under Art. V, Sec. 3, Mo.Const.

Defendant’s allegations of error include: (1) insufficiency of the evidence to support capital murder convictions; (2) improper exclusion of hearsay testimony as to an accomplice’s declaration against penal interest; (3) the sentences are violative of the Cruel and Unusual Punishment provisions of the United States and Missouri Constitutions; and (4) erroneous refusal to permit defense counsel’s withdrawal or to permit defendant to personally call and examine witnesses.

I.

Examining for sufficiency of the proof, we accept as true all evidence, direct or circumstantial, and all reasonable inferences supportive of the verdict and disregard those portions of the record contrary to a finding of guilt. State v. Strickland, 609 S.W.2d 392, 395 (Mo.banc 1980). Our function is not to weigh the evidence, but rather to determine whether there was sufficient proof from which the jury could reasonably have found defendant guilty as charged. State v. Kelly, 539 S.W.2d 106, 109 (Mo.banc 1976).

The record discloses that between 6:30 and 7:30 on the evening of December 20, 1978, the bodies of two men were discovered in a liquor store in Caruthersville, Missouri. One of them, Pierce Neeley, was lying face down in a pool of blood near the front of the store with a beer bottle bearing defendant’s fingerprint beneath his body. The other victim, William “High Pockets” Parker, the store’s operator, was discovered supine on the floor behind a counter. Parker was a large man, approximately 6 feet 3 inches in height and weighing about 260 pounds. Except for one broken bottle, the racks of chips and shelves of liquor had not been disturbed evidencing little or no sign of a struggle. The cash register and Parker’s billfold had been emptied of money.

An autopsy revealed Parker suffered multiple stab wounds in the chest and abdomen and a large laceration caused by a blunt instrument to the back of his head, possibly producing a concussion. During Neeley’s autopsy, nine stab wounds to the front and six to the back of his torso were found, as well as a scalp laceration from a blunt object which could have caused unconsciousness. Each man probably died from his chest wounds.

Frances Mitchell, Johnny Mitchell’s wife, and Brenda Hall, Frances’ daughter, testified that on the evening of December 20, 1978, defendant came to the Mitchell home and about 30 minutes later left with Johnny, who was armed with a pistol. When they returned at approximately 10:00 that night, Johnny gave Brenda and her siblings some change.

Defendant, in his videotaped statement, admitted that on the night of December 20, 1978, he went to Johnny Mitchell’s home near Steele, Missouri, where Mitchell told defendant he wanted to go somewhere and “make him a hussle” (commit a robbery). They left the house in defendant’s truck with defendant driving, and went to a liquor store in Caruthersville, arriving sometime after “dusk dark”. Mitchell, who was armed with a pistol and a knife, told defendant that he knew the two men in the store, having “borrowed money from them before”, and “was going in there and borrow some money from them and if he didn’t get it one way he was going to get it other one.” Defendant, dressed in a blue repairman’s outfit bearing the word “Willie” (his first name), entered the store with Mitchell, and each purchased a beer. Returning to the truck, the two men waited a few minutes for Neeley to leave, but apparently convinced that Neeley was staying, Mitchell asked defendant to drive around the corner and park the truck a block away. When defendant returned to the store, he found Mitchell standing over Neeley, hitting him with a gun. Neeley’s back was bleeding from stab wounds, and when Mitchell went behind the counter to get a money sack, defendant, observing that Neeley was attempting to pull himself up, hit Neeley on the head with a beer bottle. Mitchell returned to the front of the store, and he too struck Neeley with a beer bottle, breaking it, then struck him again with the gun. When Neeley fell, defendant and Mitchell ran from the rear door through the alley to defendant’s truck. Defendant claimed he then asked why Mitchell had killed the two men and Mitchell stated he wanted no witnesses. After Mitchell divided the stolen money, defendant bought some gas, drove Mitchell home and returned to his residence.¹

Defendant particularly complains the evidence was insufficient to establish the required mental state for capital murder, § 565.001, RSMo 1978, that at most it showed an intent to rob supportive only of murder in the first degree. § 565.003, RSMo 1978² (formerly known as felony murder). This contention misses the mark. The State need not produce direct evidence of a defendant’s premeditation and deliberation; instead, the mental elements establishing murder may be proved by indirect evidence and inferences reasonably drawn from circumstances surrounding the slaying. State v. Lindsey, 507 S.W.2d 1, 4 (Mo.banc 1974); State v. Mitchell, 408 S.W.2d 39, 42 (Mo.1966); State v. Williams, 369 S.W.2d 408, 417 (Mo.banc 1963); State v. Page, 130 S.W.2d 520, 523 (Mo.1939). Additionally, premeditation need only be shown to have existed a moment before the slaying and is present if the accused reflects on his act for any length of time before acting, and deliberation is proved when the killing is performed with “a cool and deliberate state of mind.” State v. Strickland, 609 S.W.2d 392, 394 (Mo.banc 1980); State v. Marston, 479 S.W.2d 481, 484 (Mo.1972). In this connection, it is worthy of mention that direct proof of the required mental state is seldom available and such intent is usually inferred from circumstantial evidence. See, State v. Beckemeyer, 423 S.W.2d 687, 688 (Mo.1968); State v. Lawson, 585 S.W.2d 247, 251 (Mo.App.1979).

Though defendant asserts his videotaped statement demonstrates he did not participate in the stabbings nor intend the killings, the jury was entitled to disbelieve such exculpatory statements. State v. Wilkerson, 616 S.W.2d 829, 835 (Mo.banc 1981); State v. Wade, 535 S.W.2d 492, 495 (Mo.App.1976). Parker’s size, as well as the location of the victims’ bodies, renders defendant’s version that Mitchell was the sole slayer highly unlikely. Additionally, defendant’s continuation in the robbery, after Mitchell had evidenced his interne to dispose of the two men, sufficed to support the jury’s determination that the requisite deliberation and premeditation were present. State v. Lindsey, 507 S.W .2d 1, 4 (Mo.banc 1974). Further, defendant’s exculpatory statement abounds with admissions pointing toward capital murder. His knowledge that Mitchell and he were easily identifiable as the robbers, combined with his striking of Neeley as he attempted to arise, demonstrates defendant’s intention to join Mitchell’s planned purpose of leaving no witnesses. Defendant need not personally have committed the killing. It suffices if he knowingly acted in concert with another for the common purpose of committing the offense, or knowingly and intentionally aided or encouraged the other in committing the offense.³ MAI-CR 2.10, 2.12 and 2.14; State v. Strickland, 609 S.W.2d 392, 395 (Mo.banc 1980); State v. Lute, 608 S.W.2d 381, 384 (Mo.banc 1980); State v. Grebe, 461 S.W.2d 265, 267-68 (Mo.banc 1970); State v. Taylor, 391 S.W.2d 835, 837 (Mo.1965); State v. Butler, 310 S.W.2d 952, 957 (Mo.1958); State v. Easton, 577 S.W.2d 953, 957-59 (Mo.App.1979), cert. denied, 444 U.S. 863, 100 S.Ct. 131, 62 L.Ed.2d 85; Rowden v. State, 493 S.W.2d 699, 702 (Mo.App.1973). Hence, the evidence could lead the jury to reasonably infer “defendant, acting alone or in concert with another ‘unlawfully, willfully, knowingly, deliberately, and with premeditation’ killed” Pierce Neeley and William Parker. State v. Strickland, 609 S.W.2d 392, 395 (Mo.banc 1980).

Finally, the jury’s determination that defendant was guilty of capital murder is not invalidated by the fact the evidence would have supported a first degree (felony) murder conviction, nor does this, as defendant urges, thwart “the statutory scheme enacted by the Missouri Legislature which manifested its intent that so-called ‘felony murder’ would no longer be treated as a capital offense, when it designed Sections 565.001, 565.003, and 565.008 of the 1979 Criminal Code.” The jury was not required to acquit of capital murder and convict of first degree murder simply because the slayings occurred during the perpetration of a robbery.

II.

Defendant next contends the trial court erred in excluding Michael Cooper’s testimony concerning purported admissions to the actual slayings by Johnny Mitchell.⁴ During trial, Cooper was called by defense counsel and offered the following testimony: On December 21, 1978 (the day following the murders), while Cooper was visiting in defendant’s home, Mitchell, unaware of Cooper’s presence, said to defendant, “I wasted those two punk-ass motherf_s.” Seeing Cooper enter the room, Mitchell then asked Cooper if he “knowed who wasted those two dudes.” On two subsequent occasions, Mitchell allegedly made similar admissions directly to Cooper. The State’s objection to Cooper’s testimony as hearsay was sustained.

Generally in Missouri, declarations against penal interests are not admissible exceptions to the hearsay rule in criminal proceedings. See, State v. Brown, 404 S.W.2d 179, 185 (Mo.1966); State v. Williams, 309 Mo. 155, 274 S.W. 427, 433 (1925); State v. Hack, 118 Mo. 92, 23 S.W. 1089, 1091 (1893); State v. Ivicsics, 604 S.W.2d 773, 780 (Mo.App.1980); State v. Grant, 560 S.W.2d 39, 42-43 (Mo.App.1977).⁵ Nevertheless, relying on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), defendant suggests that barring such evidence was violative of the Due Process Clauses of the United States and Missouri Constitutions and that after Chambers, we should unqualifiedly admit declarations against penal interests in criminal cases. The Court in Chambers, however, explicitly refused to so hold. Id. at 302-03, 93 S.Ct. at 1049-10, 50. Further, the facts distinguish the present case because the “hearsay statements involved in [Chambers] were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability.” Id. at 300, 93 5.Ct. at 1048. There, each declaration was made spontaneously to a close acquaintance and was corroborated by other substantial, reliable evidence including declarant’s sworn confession, testimony of an eyewitness to the crime, evidence that declarant was observed with a gun immediately after the murder, and proof of declarant’s prior ownership of gun like the murder weapon and subsequent purchase of a new weapon. Further, the number of statements (three) made independently to different persons and the fact that declarant obviously was aware that each statement was highly self-incriminatory and unquestionably against interest (after relating his involvement to one of the proferred witnesses, he urged the witness not to reveal his complicity to others) provided additional corroboration. In addition, the declarant was cross-examined by the State, and his demeanor and credibility considered by the jury. Id. at 300-01, 93 S.Ct. at 1048-1049.

While in a case such as Chambers, where substantial indicia of reliability appear and declarant's complicity if true would exonerate the accused, declarant’s averments against an interest penal in nature may not be excluded, such circumstances requiring admission of the hearsay are missing here. When called to testify at defendant’s trial, Johnny Mitchell refused, asserting his Fifth Amendment privilege, and thus was unavailable for a test of credibility. Nor was there corroborating evidence to insure the trustworthiness of his purported declarations. Equally important, the statements in themselves were not inconsistent with the showing of defendant’s guilt. Defendant had placed himself at the scene and admitted a part in the planning and perpetration of the crime. Hence, Cooper’s testimony might have aided the conviction, for if from other evidence the jury believed defendant guilty as an accomplice, the statements established Mitchell’s complicity as a “principal.” The proffered evidence did not, as in Chambers, exclude defendant as perpetrator by implicating Mitchell as an unabetted murderer.

We also observe that the dangers inherent in opening the door to extrajudicial confessions made by one not a party to the proceeding⁶ militate against extending the rule of Chambers beyond the facts presented there.⁷ See, Taggart v. State, 269 Ind. 667, 382 N.E.2d 916 (1978); Ramirez v. State, 543 S.W.2d 631 (Tex.Cr.App.1976); State v. Smith, 415 A.2d 553 (Me.1980). See also, State v. Yates, 442 S.W.2d 21, 28 (Mo.1969).

Defendant further complains reversal is required under the holding of Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), that exclusion of similar evidence,⁸ proffered during the punishment phase of trial, constituted denial of due process. Certainly such statements, cloaked with the safeguards for trustworthiness found in Green, could be pertinent to the issue of punishment; however, in the case sub judice, not only was Cooper’s testimony not offered during the punishment phase of defendant’s bifurcated proceedings, but its exclusion could not have been found prejudicial as defendant received the minimum punishment mandated for capital murder.

Finally, defendant claims unfairness by the admission of Cooper’s testimony in Mitchell’s trial and its exclusion here, but in so arguing defendant ignores a fundamental distinction. Cooper’s testimony was admitted against Mitchell in a proceeding where Mitchell, as declarant, was in court and could choose to testify to refute Cooper’s claim. In the present case, Cooper’s testimony was offered against the State which could not force Mitchell to testify and hence had no means of testing the truthfulness of Mitchell’s alleged statements. It is a well established “fact of trial life” that certain items of evidence may be introduced by one party and yet not by another. Green v. Georgia, 442 U.S. 95, 99, 99 S.Ct. 2150, 2152, 60 L.Ed.2d 738 (1979) (Rehnquist, J., dissenting).

In the criminal justice context denial of due process has been described as the failure to observe the fundamental fairness essential to the very concept of justice. State v. Caffey, 438 S.W.2d 167, 172 (Mo.1969), cert. denied, 396 U.S. 853, 90 S.Ct. 114, 24 L.Ed.2d 102. No want of due process can be said to flow from the trial court’s refusal to permit defendant to solicit this hearsay testimony. U. S. v. Hughes, 529 F.2d 838, 841 (5th Cir. 1976). Defendant’s contention is denied.

III.

Defendant next asserts that imposition of a mandatory life sentence without probation or parole for 50 years, pursuant to § 565.008, RSMo 1978, violates the federal and state Constitutions’ proscriptions against cruel and unusual punishment. Eighth Amendment, U.S.Const.; Art. I, Sec. 21, Mo.Const. These allegations have previously been addressed and determined contrary to the contentions here and require no protracted discussion. See, State v. Borden, 605 S.W.2d 88, 92-93 (Mo. banc 1980); State v. Olinghouse, 605 S.W.2d 58, 63-65 (Mo. banc 1980); State v. Higgins, 592 S.W.2d 151, 155-56 (Mo. banc 1979), appeal dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980).

IV.

Finally defendant contends in his supplemental brief⁹ that the trial court erred in failing to appoint substitute counsel as requested by defendant and his trial attorneys, denying defendant’s Sixth and Fourteenth Amendment rights, and that the trial court erred further in refusing to permit defendant to personally examine alibi witnesses whom counsel had refused to call.

A.

At trial, defendant was represented by two attorneys, Gary Robbins the Public Defender and John Fowlkes, court appointed counsel. On October 23, 1979, Robbins moved for leave to withdraw, followed by a “motion to appoint defendant as his own chief counsel” submitted by Fowlkes on October 29, 1979. A pretrial hearing on these motions revealed an earlier disagreement between defendant and Ms attorneys, stemming from defendant’s desire to present an alibi defense. In tMs connection, defendant had written to Robbins indicating he had no confidence in Robbins as his attorney. Following the testimonial hearing the motions were denied. At a second pretrial conference, on December 11, 1979, a motion for leave to withdraw filed by Robbins on December 7, accompanied by a “pro se motion [prepared by Robbins] to remove the Public Defender and for appointment of new counsel or in the alternative to proceed pro se”, was also denied.

Defendant now maintains “both the defendant and his attorneys wanted to be relieved from each other and made their wishes clearly known to the Court”, however, the record belies the present assertion of irreconcilable conflict. It has been said that “An irreconcilable conflict exists where there is a total breakdown of communication between attorney and client ... ”, State v. Smith, 586 S.W.2d 399, 401 (Mo.App.1979), and no such showing has been made here. Indeed, at both hearings defendant indicated the relationship with his attorneys was good. At the earlier hearing, repudiating his letter, defendant stated that he trusted Robbins, and was willing to cooperate and follow counsel’s advice if he deemed it appropriate. At the December 11th hearing, defendant stated he wanted Robbins and Fowlkes to represent him, and their sole dispute centered on whether defendant should testify. Considering this testimony, the court appropriately concluded that while a particular problem existed, defendant had indicated a willingness to join counsel in its resolution.

Also contrary to defendant’s assertions, the record reveals defendant did not express a desire for new counsel until December 12, 1979, the date trial commenced and after impaneling of the jury. The trial court denied defendant’s request, indicating it was too late for the appointment of new counsel. The granting of a continuance that defendant might secure substitute counsel once trial has commenced is within the trial court’s sound discretion, tempered by the public’s need for effective administration of justice, and this discretion will not be lightly disturbed especially when it appears the accused was not denied skilled and competent representation. State v. Gregory, 595 S.W.2d 798, 800 (Mo.App.1980); State v. Lee, 521 S.W.2d 180, 182 (Mo.App.1975). An accused is not entitled to a particular attorney as a matter of constitutional right, nor may he work a continuance by discharging his lawyer without strong justification. State v. Jefferies, 504 S.W.2d 6, 7 (Mo.1974); Evans v. State, 467 S.W.2d 920, 923 (Mo.1971). We find no abuse of discretion.

B.

Defendant also claims trial court error in failing to appoint substitute counsel at the close of the State’s case when it was again brought to the trial court’s attention that defense counsel refused to present a proposed alibi defense. After some discussion, the trial judge resolved the dispute, ruling defendant might testify in narrative form if counsel refused to propound questions, but defendant would not be permitted to personally elicit testimony from witnesses. We can find no basis for reversal in this action. The determination of what witnesses to call, like other questions involving defenses to pursue, was a matter of trial strategy and, as defendant was represented by able counsel, the decision was best left within their province. See, American Bar Association Standards for Criminal Justice, The Defense Function, Standard 4-5.2 (2d ed. 1980); State v. Banks, 216 Kan. 390, 532 P.2d 1058, 1061-63 (1975). The trial court’s ruling that defendant would be permitted to testify in narrative form constitutes a well conceived compromise, balancing an accused’s constitutionally protected right to take the stand against his attorneys’ obvious concern for what they deemed an attempt to mount an untenable claim.¹⁰ Hence, rather than faulting the trial judge for failing to appoint substitute counsel, we commend his efforts in overcoming a seeming impasse.¹¹

C.

In the same vein, defendant charges ineffective assistance of counsel based on his attorneys’ (1) advice against testifying and (2) refusal to call alleged alibi witnesses. To prevail on these assertions, claimant must demonstrate his attorney failed, to his prejudice, to exercise the customary skill and diligence of a reasonably competent lawyer rendering similar services under the existing circumstances. Eldridge v. State, 592 S.W.2d 738, 740 n. 2 (Mo. banc 1979); Reynolds v. Mabry, 574 F.2d 978, 981 (8th Cir. 1978). It is settled that defense counsel’s attempt to dissuade his client from testifying, without more, does not fall to a level that may be characterized as incompetency violative of defendant’s constitutionally protected rights. Such discouragement in the usual case amounts to advice on a question of trial tactics to which varying answers are tenable. Hughes v. State, 507 S.W.2d 363, 364-65 (Mo.1974).

Defendant’s assertions respecting defense counsels’ refusal to call his proposed witnesses must also fail. As stated in Eldridge v. State, supra at 741, “If an attorney believes that the testimony of an alibi witness would not unqualifiedly support his client’s position, it is a matter of trial strategy not to call him to the stand.... An assertion against counsel’s choice of trial strategy with respect to calling or not calling certain witnesses does not establish ineffective assistance of counsel.” (citations omitted). See, American Bar Association Standards for Criminal Justice, The Defense Function, Standard 4-5.2 (2d ed. 1980). This rule particularly holds where, as here, the attorneys during investigation contacted defendant’s potential witnesses, but discovered nothing to sufficiently substantiate the suggested defense. Jackson v. State, 537 S.W.2d 211, 214 (Mo.App.1976). Additionally, to be entitled to relief, defendant must demonstrate how the purported testimony would have benefited him. Mayes v. State, 589 S.W.2d 637, 638 (Mo.App.1979). In the case at bar, defendant indicated to the trial judge his desire to have his wife and two sisters-in-law testify concerning his alibi defense, however, a statement by defendant’s wife revealed she could not truthfully state defendant’s whereabouts on the night of the murders. No showing appears concerning the sisters-in-law. In this regard defendant had made damaging admissions to the police concerning his connection with the crimes, and had counsel pursued the alibi defense, these pri- or admissions could have served as powerful weapons for the prosecution. In light of the strong evidence placing defendant at the scene, defendant’s attorneys can hardly be faulted for their cogent advice against the pursuit of that defense. Hughes v. State, 507 S.W.2d 363, 365-66 (Mo.1974) (Seiler, J. concurring). The ineffective assistance of counsel claim fails.

D.

Defendant finally complains of error by the trial court in refusing him permission to personally call and examine witnesses. However, the record discloses that defendant never requested, and, in fact, on two occasions refused to proceed pro se. Whether a defendant, represented by counsel, may participate in his own trial is a matter within the sound discretion of the trial court. State v. Burgin, 539 S.W.2d 652, 654 (Mo.App.1976). Further, as noted above, it is generally within the control of trial counsel to decide whether to proffer the testimony of defendant’s alleged alibi witnesses. State v. Banks, 216 Kan. 390, 532 P.2d 1058, 1061-63 (1975). In this framework and given defendant’s apparent willingness manifested at the pretrial conferences to follow his attorneys’ advice, we find no abuse of discretion on the part of the trial court in refusing to allow defendant to conduct his defense while represented by counsel.

Accordingly, the judgment is affirmed.

DONNELLY, C. J., and WELLIVER, MORGAN and HIGGINS, JJ., concur. BARDGETT, J., dissents in separate dissenting opinion filed. SEILER, J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

1 . Johnny Mitchell’s convictions for capital murder were affirmed by this Court in State v. Mitchell, 611 S.W.2d 223 (Mo.banc 1981).

2 . Section 565.001, RSMo 1978, provides as follows:

“Any person who unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of another human being is guilty of the offense of capital murder.”

Section 565.003, RSMo 1978, defining first degree murder, is as follows:

“Any person who unlawfully kills another human being without a premeditated intent to cause the death of a particular individual is guilty of the offense of first degree murder if the killing was committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary, or kidnapping.”

3 . The jury was instructed by MAI-CR 2d 15.02 modified by MAI-CR 2.12 and 2.10.

4 . The unavailability of Johnny Mitchell requisite to the admission of his purported declaration against interest was established when Mitchell refused to testify when called asserting his Fifth Amendment privilege. State v. Grant, 560 S.W.2d 39, 43 (Mo.App.1977).

5 .Even in jurisdictions where recognized, the exception requires as an essential element that the circumstances render it improbable a motive to falsify existed. See, 31A C.J.S. Evidence § 217; Fed.R.Evid. 804(b)(3). In other words, the hearsay statements must bear substantial assurances of trustworthiness.

6 . An example will serve to Illustrate. “If the rule were changed, A could be charged with the crime; B could tell C and D [possibly seeking to build his criminal reputation or to exonerate A] that he committed the crime; B could go into hiding and at A’s trial C and D would testify as to B’s admission of guilt; A could be acquitted and B would return to stand trial; B could then provide several witnesses to testify as to his whereabouts at the time of the crime. The testimony of those witnesses along with A’s statement that he really committed the crime could result in B’s acquittal. A would be barred from further prosecution because of the protection against double jeopardy. No one could be convicted of perjury as A did not testify at his first trial, B did not lie under oath, and C and D were truthful in their testimony.” Chambers v. Mississippi, id. 410 U.S. at 301, 93 S.Ct. at 1049.

7 . It must be emphasized that the Supreme Court’s determination due process had been denied stemmed from the Mississippi court’s combined refusal to permit the defendant (1) to elicit testimony from the three witnesses respecting the declarant’s extrajudicial confessions and (2) to impeach the declarant who under cross-examination by the state had repudiated his prior sworn confession. Chambers v. Mississippi, id. at 302, 93 S.Ct. at 1049.

8 . The evidence urged in Green was, unlike that at bar, exculpatory in that the declaration placed petitioner away from the scene at the time of the murder.

9 . On this portion of his appeal defendant was represented by Walter S. Drusch, Jr., counsel specially appointed to raise here defendant’s allegations of his difficulties with trial counsel. While we normally do not consider in a criminal appeal a defendant’s claim of ineffective assistance of trial counsel, see, State v. Mitchell, 620 S.W.2d 347 (Mo. banc 1981), we will review the complaints urged in the instant case where defendant is represented by different counsel for these allegations and the transcript provides a complete record of the trial circumstances of which defendant now complains. See, State v. Banks, 216 Kan. 390, 532 P.2d 1058 (1975).

10 . It must be remembered that the video-taped confession of defendant, found admissible by the trial court and not challenged on appeal, at the very least placed defendant at the scene of the crime.

11 . We note in passing that any ethical problems defense counsel perceived in promoting defendant’s alleged alibi defense or any harm to defendant defense counsel foresaw resulting from an aborted alibi claim would also have been encountered by substitute counsel. State v. Banks, 216 Kan. 390, 532 P.2d 1058, 1062 (1975).