State v. Yates

869 S.W.2d 270, 1994 Mo. App. LEXIS 43, 1994 WL 6755
CourtMissouri Court of Appeals
DecidedJanuary 11, 1994
DocketNos. 61762, 63633
StatusPublished
Cited by1 cases

This text of 869 S.W.2d 270 (State v. Yates) 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. Yates, 869 S.W.2d 270, 1994 Mo. App. LEXIS 43, 1994 WL 6755 (Mo. Ct. App. 1994).

Opinion

CARL R. GAERTNER, District Judge.

Defendant Maurice Yates appeals from the judgment of conviction of first degree assault and armed criminal action. He also appeals the denial of his Rule 29.15 motion.

On May 12, 1990, Clayton Martin visited the home of David Mooney. Also present at the home was Jerry Leftridge. Martin, Mooney and Leftridge went to Sportsmen’s Bar together to buy cigarettes. When Martin entered the bar, he noticed an individual who appeared intoxicated laying on a table. When Martin approached the individual, he was confronted by Maurice Yates. The two exchanged words, but Yates then withdrew to a back room.

However, when Martin, Mooney and Lef-tridge exited the bar and tried to enter the vehicle in which they had arrived, Yates and ten or twelve other men followed them into the parking lot. Jerry Missey and Gordon Sampson were also among the crowd that followed Martin, Mooney and Leftridge outside. As Leftridge tried to enter the vehicle, one of the men from the bar pulled him out of the vehicle. Martin tried to aid Leftridge, but he was pulled to the ground. Yates and several men from the bar beat and kicked Martin while he was on the ground. Then; Yates pulled Martin to his knees and stabbed him in the side.

The jury found defendant guilty of first degree assault and armed criminal action. Defendant appealed and also filed a pro se Rule 29.15 motion. That motion was denied without an evidentiary hearing, and defendant again appealed. Both appeals have been consolidated into this action. For the reasons set forth below, we affirm the convictions and remand the Rule 29.15 motion for an evidentiary hearing.

I

The defendant’s first point on direct appeal is that the trial court failed to declare a mistrial sua sponte after the prosecutor unduly emphasized the defendant’s previous conviction and injected an irrelevant issue into the jury’s deliberation by stating his personal opinion of the defendant’s height in his closing argument. The defendant recognizes that no objection was made at the time of trial or in defendant’s motion for new trial. We are asked to review the alleged errors for plain error.

Under the plain error rule, we will set aside a lower court ruling only when it affects the rights of the accused to the extent of manifest injustice or miscarriage of justice if left uncorrected. State v. Sandles, 740 S.W.2d 169, 177 (Mo. banc 1987).

The prosecutor asked the defendant about the criminal records of Sampson and Missey, two other individuals involved in the fight. After the defendant answered these questions, the prosecutor asked the defendant about his own previous conviction. The whole exchange, was as follows:

Q. Do you know if Mr. Sampson has ever been convicted of killing somebody?
MS. DAVIS: I’m going to object to the relevancy.
A Not to my knowledge.
MS. DAVIS: I’ll withdraw the objection. Q. (By Mr. Tindall) Do you know if Mr. Missey has ever been convicted of killing somebody?
A. He was involved in some kind of case, but I don’t know what it was, what it all pertained to, and I’m not going to speculate on it.
Q. It could have been a drug case?
A No, it was a murder case.
Q. But you don’t know the results?
A I don’t know the particulars in it. I know he was involved in some maimer. The outcome was ruled in his favor apparently because he didn’t go to prison.
Q. But you do know you’ve been convicted of manslaughter?
A Yes, sir.

This was the extent of the questioning. The defendant was then dismissed as a witness.

In general, when a defendant testifies, he is subject to cross-examination and impeachment as is any other witness. § 546.269 RSMo (1986); State v. Flenoid, 838 S.W.2d 462, 468 (Mo.App.1992). A prosecutor has an absolute right to use a defendant’s prior convictions to impeach the defen[272]*272dant’s credibility, but not as evidence that the defendant is guilty of the crime for which he is presently standing trial. State v. Tomlin, 830 S.W.2d 31, 35 (Mo.App.1992).

In the instant case, the record does not reveal any error resulting in manifest injustice from this line of questioning. Defendant’s credibility was a crucial issue because his version of events differed from that of other witnesses. Thus, it was appropriate to ask about a prior conviction on cross-examination. In final argument, the prosecutor referred to defendant’s prior conviction and specifically called upon the jury to consider this in terms of defendant’s credibility. The prosecutor’s expression of opinion regarding defendant’s height, while beyond the scope of the evidence, was too inconsequential to draw an objection. Likewise, it is too inconsequential to invoke manifest injustice consideration as plain error. Point denied.

II

In his second point on direct appeal, the defendant claims that the trial court erred in giving Instruction Number 3, patterned after MAI-CR3d 302.04, defining “reasonable doubt.”

The Missouri Supreme Court has already ruled on this issue based on an identical instruction defining “reasonable doubt.” State v. Griffin, 818 S.W.2d 278, 282 (Mo. banc 1991). The court ruled that this instruction does not violate a defendant’s right to due process and is constitutional. Griffin at 282; State v. Baker, 859 S.W.2d 805, 815 (Mo.App.1993). Point denied.

III

Defendant also appeals the denial of his Rule 29.15 motion. Our review of the denial of defendant’s Rule 29.15 motion is limited to a determination of whether the motion court’s findings and conclusions are clearly erroneous. Rule 29.15(j); Leisure v. State, 828 S.W.2d 872, 873-74 (Mo. banc 1992). The findings and conclusions are clearly erroneous only if, after review of the entire record, this court is left with the definite and firm impression that a mistake has been made. Id. at 874.

Defendant maintains the motion court’s findings were clearly erroneous in failing to find that defendant was denied effective counsel at trial. Defendant further argues the motion court’s denial of an eviden-tiary hearing on this matter was clearly erroneous. To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show (1) that his attorney failed to exercise the customary skill and diligence a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

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Bluebook (online)
869 S.W.2d 270, 1994 Mo. App. LEXIS 43, 1994 WL 6755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-yates-moctapp-1994.