Street v. State

765 S.W.2d 630, 1989 Mo. App. LEXIS 51, 1989 WL 686
CourtMissouri Court of Appeals
DecidedJanuary 10, 1989
DocketNo. WD 40318
StatusPublished
Cited by4 cases

This text of 765 S.W.2d 630 (Street v. State) 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
Street v. State, 765 S.W.2d 630, 1989 Mo. App. LEXIS 51, 1989 WL 686 (Mo. Ct. App. 1989).

Opinion

BERREY, Judge.

Lamar Otis Street appeals from the denial, after an evidentiary hearing of his Rule 27.261 motion, in which he sought to vacate his conviction following a jury trial, for failure to return rented property with a value of at least $150. Section 578.150.1, RSMo 1986. Movant was sentenced to a ten-year term of imprisonment as a “persistent offender” under section 558.016.3, RSMo 1986. His conviction was affirmed on direct appeal. State v. Street, 732 S.W. 2d 196 (Mo.App.1987).

The judgment is affirmed.

Preliminarily it must be pointed out that appellate review of a 27.26 action is limited to a determination of whether the trial court’s findings, conclusions and judgment are clearly erroneous. Rule 27.26(j). Furthermore, movant bears the burden of establishing his grounds for relief by a preponderance of the evidence. Rule 27.26(f).

In movant’s first point he appears to be making a challenge to the sufficiency of the evidence supporting his conviction. Street was convicted on the charge of failure to return rental property, in this case a 12-inch hand held “Wacker” concrete saw valued at about $580. He contends that the state erred in charging and trying him as there was no evidence to support the rental of a 12-inch saw; the evidence showed the lawful rental and return of a 14-inch walk behind concrete saw.2 He couches his complaint in language which suggests that he was denied effective assistance of counsel by the point not being briefed on direct appeal. It is unclear, however, as to what counsel he is referring to, trial counsel or appellate counsel.3

Movant’s contention as to appellate counsel is without merit. The issue of ineffective assistance of appellate counsel is not cognizable by the court below under Rule 27.26. See Hemphill v. State, 566 S.W.2d 200 (Mo. banc 1978); Daniels v. State, 726 S.W.2d 445 (Mo.App.1987).

In any event, a challenge as to the sufficiency of the evidence is a matter for direct appeal from the judgment finding him guilty of the offense. Hemphill v. State supra, 566 S.W.2d at 205. See also Ardrey v. State, 612 S.W.2d 859 (Mo.App. 1981). Movant may not use a Rule 27.26 proceeding as a substitute for a direct appeal on the question of sufficiency of evidence. Ardrey v. State supra, 612 S.W.2d at 860.

It must also be noted that while the sufficiency question was not raised on direct appeal, this court did address the issue stating that, “[t]he record fully supports defendant’s conviction....” State v. Street, supra, 732 S.W.2d at 199. Movant’s Point I is denied.

Movant’s Point II alleges that his trial counsel “did not formulate any trial strategy in favor of this appellate [sic] for his [632]*632defense.” He also speaks of acoustical problems in Clay County courtrooms which “would distort statements conveyed to the jury.” Finally, he asserts that “there were [sic] also no evidence presented to the contrary to rebutt [sic] the allegations made by the appellate at his evidentiary hearing.”

There are two components which must be met in establishing ineffective assistance of counsel:

First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See Sanders v. State, 738 S.W.2d 856 (Mo. banc 1987).

Movant initially complains of trial counsel’s failure to preserve many issues for appeal. In his reply brief he cites State v. Zweifel, 615 S.W.2d 470 (Mo.App.1981) in support of this contention. This citation is completely inapposite as Zweifel dealt with a claim of ineffective assistance of counsel on appeal and was initially presented through a motion to recall mandate. The court in Zweifel stressed that “relief should only be granted if, on the allegations, there are strong grounds to believe that counsel has failed to assert on appeal a claim of error which would have required reversal had it been asserted.” Id. at 472. No item on Street’s list of counsel’s alleged errors comes even close to meeting the requirements needed for reversal on a 27.26 claim. Nor does movant cite any authority for his claims of error; he merely states what he believes to be error coupled with bold assertions that counsel was ineffective.

Movant complains of the introduction of the rental contract into evidence and states that a motion to suppress should have been made. Again, this argument is merely a re-hash of the sufficiency question and has already been addressed. Mov-ant next criticizes defense counsel’s efforts to impeach Ron Smith’s testimony. Smith appeared as a witness for the defense as he had accompanied movant to Glad Rents, the store from which the saw was rented, on the occasion of its rental. Movant relies on a footnote in State v. Street, wherein this court commented on counsel’s strategy in impeaching Smith, noting that “his efforts ... seem to run counter to his purpose.” State v. Street, supra, 732 S.W.2d at 199 n. 2. In any event, the question of impeachment of a witness is one of trial technique and thus, cannot be used as a basis for any breach of duty towards mov-ant. Davis v. State, 748 S.W.2d 698 (Mo. App.1988).

Movant claims that his counsel introduced hearsay testimony concerning a telephone call between movant and George Kracht, the co-owner of Glad Rents. The part of the call introduced by counsel was that part in which movant told Kracht that Ron Smith had the saw. This could not prejudice Street. Street also complains of the failure of counsel to object to leading questions asked by the prosecutor on redirect examination concerning the call. Again, the prejudice to Street is non-existent as any objection to the allegedly leading question would merely result in the information being elicited in another manner. Movant fails to meet his burden on this item.

Movant points out some inconsistence between Linda Kracht’s testimony and George Kracht’s testimony concerning the events which transpired upon the renting of the saw. Linda Kracht’s testimony also was inconsistent with that of Craig Chambers, another witness for the state. Mov-ant complains that counsel failed to object to this. Why counsel would want to object remains a mystery as Linda Kracht was a defense witness called presumably because she could offer testimony which contradicted that of the state’s witnesses. The credibility of a witness is a matter for the trier of fact to determine; in this case the jury. [633]*633State v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Garth v. State
411 S.W.3d 366 (Missouri Court of Appeals, 2013)
Parker v. State
946 S.W.2d 255 (Missouri Court of Appeals, 1997)
State v. Ryun
784 S.W.2d 636 (Missouri Court of Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
765 S.W.2d 630, 1989 Mo. App. LEXIS 51, 1989 WL 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/street-v-state-moctapp-1989.