Watkins v. State

785 S.W.2d 767, 1990 Mo. App. LEXIS 256, 1990 WL 12875
CourtMissouri Court of Appeals
DecidedFebruary 15, 1990
DocketNo. 16307
StatusPublished
Cited by7 cases

This text of 785 S.W.2d 767 (Watkins 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
Watkins v. State, 785 S.W.2d 767, 1990 Mo. App. LEXIS 256, 1990 WL 12875 (Mo. Ct. App. 1990).

Opinion

CROW, Presiding Judge.

Leroy J. Watkins (“movant”) appeals from a judgment denying — after an eviden-tiary hearing — his second amended motion under Rule 27.261 to vacate his conviction of assault in the first degree, § 565.050, RSMo Cum.Supp.1984, for which he was sentenced to 20 years’ imprisonment. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Watkins, 724 S.W.2d 674 (Mo.App.1987).

The first four of movant’s eight points relied on pertain to the prosecutor’s cross-examination of movant at the jury trial.

Movant presented himself as a witness in his defense. During direct examination by his lawyer, henceforth referred to as “defense counsel,” movant testified he had been convicted of “felony stealing” in Jasper County in October, 1980, and had been convicted of the same crime in Newton County in February, 1981. Then, this:

“Q And you’ve had no other brushes with the law since.
A Never.”

At the outset of movant’s cross-examination by the prosecutor this dialogue occurred:

“Q ... you told [defense counsel] a minute ago that the two convictions were the only brushes with the law that you’d ever had, isn’t that correct?
A I think felonies, yes.
[770]*770Q You used the word, I believe, that those were the only brushes you’d had with the law, or he did, isn’t that right?
A (no response)
Q In fact, you’ve had many other brushes with the law.
A I’ve had a few, yeah, but....
Q Isn’t it true that you were arrested in a brush with the law on March 21st of 1976, for resisting arrest, assault and public drunkedness [sic]?”

At that point defense counsel objected on the grounds of “improper impeachment,” arguing the “only things that can come into play are past convictions.” The prosecutor responded that movant’s testimony on direct examination had “opened up his entire arrest record, not just his conviction record.” The trial court overruled defense counsel’s objection. Cross-examination continued:

“Q ... Isn’t it true ... that on March 21, 1976, you were arrested by the Joplin Police Department for resisting arrest, assault and public drunkedness [sic]?
[[Image here]]
A I was arrested, yeah, but it wasn’t my fault.
Q Thank you. Isn’t it true, Mr. Watkins, that on April 19, 1979, you were arrested by the Joplin Police Department for fighting in public? Isn’t that true?”

Defense counsel registered the “[s]ame objection.” It was overruled. This colloquy ensued:

“Q (by [prosecutor]) Do you want to see your jail card, Mr. Watkins?
A I don’t remember, sir. I’ve been hit in the head too. I’ve got brain damage and it’s hard—
Q You’ve got brain damage?
A Right. From when the cops beat me in the head that time.”

Movant’s first point avers:

“The hearing court clearly erred in denying [movant’s] 27.26 motion because the trial court denied [movant] his right to trial by a fair and impartial jury ... and due process of law ... and equal protection of the law ... in that the trial court, over [movant’s] objection, allowed [movant] to be impeached at trial with his arrests, in violation of the established rule against such impeachment, and in violation of [movant’s] right to be tried solely for the offense charged, and to [movant’s] prejudice because the arrests were for assault, resisting arrest, public drunkenness, and fighting in public, and [movant] was being tried on assault.”

Pertinent to the above point the hearing court found:

“As to ... Movant’s contention ... that the trial court should have sustained his trial counsel’s objection when ... Movant was impeached with prior arrests it is clear that this matter should have been raised on the direct appeal but from the transcript it is clear that any attempt to rely upon this grounds would have failed in that ... Movant's character was put at issue by ... Movant and that he was properly impeached by the use of his prior arrests.”

Our review is limited to a determination of whether the findings, conclusions, and judgment of the hearing court are clearly erroneous. Rule 27.26(j); Futrell v. State, 667 S.W.2d 404, 405[1] (Mo. banc 1984).

Trial errors are not cognizable in a proceeding under Rule 27.26. State v. Macon, 403 S.W.2d 630, 631[2] (Mo.1966); Fullerton v. State, 750 S.W.2d 484, 487[5] (Mo.App.1988); Hill v. State, 641 S.W.2d 194, 195 (Mo.App.1982). A proceeding under Rule 27.26 is not a substitute for direct appeal and does not afford a second appeal. Rule 27.26(b)(3); O’Neal v. State, 486 S.W.2d 206, 207-08 (Mo.1972); Choate v. State, 659 S.W.2d 354, 355[1] (Mo.App.1983). Trial errors cannot be made a basis for relief under Rule 27.26 by simply alleging as a conclusion that they resulted in an unfair or impartial trial, or that they affected constitutional rights. O’Neal, 486 S.W.2d at 207-08[2].

An allegation that a trial judge erred in receiving evidence is simply an allegation of court error during the course of the trial which is not reviewable under [771]*771Rule 27.26. Lane v. State, 611 S.W.2d 44, 46[3] (Mo.App.1981); Achter v. State, 545 S.W.2d 86, 88[5] (Mo.App.1976).

In the instant case the motion for new trial filed by defense counsel made no mention of the prosecutor’s questioning of mov-ant regarding his arrests. The brief filed on movant’s behalf by the lawyer who represented him in the direct appeal (henceforth referred to as “appellate counsel”) likewise ignored the subject. It is thus clear that the issue was not raised on direct appeal.

An issue that could have been raised on direct appeal, even if it be a constitutional claim, cannot be raised in a proceeding under Rule 27.26 unless fundamental fairness so requires and only in rare and exceptional circumstances. Drake v. State, 753 S.W.2d 65, 67[5] (Mo.App.1988); Paynes v. State, 752 S.W.2d 331, 333[2] (Mo.App.1988). No such circumstances exist here, as explained in the next four paragraphs.

In State v. Ball, 736 S.W.2d 551 (Mo.App.1987), the accused, on direct examination by his lawyer, was asked about his convictions. The accused stated he had been arrested twice. His lawyer then asked, “Other than those two convictions have you had any other arrests?” The accused answered no. On cross-examination the prosecutor asked the accused about a past arrest for second degree burglary.

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Related

Reel v. State
886 S.W.2d 615 (Supreme Court of Arkansas, 1994)
State v. Reichert
854 S.W.2d 584 (Missouri Court of Appeals, 1993)
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813 S.W.2d 355 (Missouri Court of Appeals, 1991)
Recklein v. State
813 S.W.2d 67 (Missouri Court of Appeals, 1991)
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795 S.W.2d 113 (Missouri Court of Appeals, 1990)
Beck v. State
792 S.W.2d 63 (Missouri Court of Appeals, 1990)

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Bluebook (online)
785 S.W.2d 767, 1990 Mo. App. LEXIS 256, 1990 WL 12875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watkins-v-state-moctapp-1990.