Webb v. State

718 S.W.2d 619, 1986 Mo. App. LEXIS 4777
CourtMissouri Court of Appeals
DecidedOctober 7, 1986
DocketNo. 49688
StatusPublished
Cited by4 cases

This text of 718 S.W.2d 619 (Webb 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
Webb v. State, 718 S.W.2d 619, 1986 Mo. App. LEXIS 4777 (Mo. Ct. App. 1986).

Opinion

CARL R. GAERTNER, Presiding Judge.

Pursuant to Rule 27.26 appellant seeks to vacate his conviction of murder in the second degree and his sentence to life imprisonment. The conviction was affirmed on direct appeal. State v. Webb, 583 S.W.2d 536 (Mo.App.1979). A concise summation of the evidence may be found in that opinion and need not be repeated here.

When an experienced trial lawyer reviews the transcript of a trial conducted by another experienced trial lawyer, it is inevitable that the former will ask “why did he do this?” and “why didn’t he do that?” As so often happens, such a merger of hindsight with second guessing has here given birth to a motion to vacate and set aside a conviction under Rule 27.26. We are called upon to review an accusation of incompetence and inadequate representation directed by appellant against the same lawyer who had successfully obtained acquittals for his accuser in five previous felony trials. Appellant’s motion is aptly described by the words of Judge Billings in Wilhite v. State, 614 S.W.2d 33, 34 (Mo.App.1981):

Here, the appellant has fired a scatter-load of alleged derelictions by his trial attorney through the double-barrels of hindsight and second-guessing in an effort to relitigate the question of his guilt and to challenge the sufficiency of the evidence to support his conviction.

The sole purpose of a Rule 27.26 motion is to determine whether a defendant’s original trial was violative of any constitutional requirement or if the judgment was otherwise void. Wright v. State, 459 S.W.2d 370 (Mo.1970). It is not a proper vehicle for the relitigation of a defendant’s guilt or innocence. Fields v. State, 572 S.W.2d 477, 480 (Mo.banc 1978). Our review of the denial of a Rule 27.26 motion is limited to a determination of whether the trial court’s findings and conclusions are clearly erroneous, a determination which requires the formation of a firm and definite impression that a mistake has been made. Deaton v. State, 705 S.W.2d 70, 73 (Mo.App.1985). In order to establish entitlement to post-conviction relief on the grounds of ineffective assistance of counsel, the movant must show there is a reasonable probability that but for counsel’s unprofessional errors, the result would have been different. Howard v. State, 698 S.W.2d 23, 25 (Mo.App.1985). In the light of these guidelines we examine, seriatum, the eight charges of inadequate representation which appellant contends deprived him of the effective assistance of counsel guaranteed by the Sixth Amendment. Four of these alleged derelictions are directed toward pre-trial investigation and trial preparation. The other four concern alleged deficiencies during the trial.

I

•FAILURE TO INTERVIEW CLAIRITHA BAKER, A POTENTIAL ALIBI WITNESS.

At the evidentiary hearing on the motion, appellant claimed that before trial he told his trial attorney, the late James Bell, that Clairitha Baker, the mother of his [621]*621child, would testify that he was at home with her at the time of the murder. This testimony is directly refuted by his trial testimony, that he could not remember where he was at the time. Moreover, Baker testified at the first motion hearing1 that she saw appellant at 10:30 or 11:00 p.m. when she came home from her mother’s house. At the second hearing she claimed to have been at work from 2:30 p.m. until 10:30 or 11:00 p.m. In either event, the murder was committed 1 to 1-1/2 hours before the time she claimed to have seen appellant. The motion court did not err in finding that Baker’s proposed testimony would not have furnished an alibi for the time of the offense.

II

FAILURE TO DEPOSE EYE-WITNESSES SIMPSON AND BYRTH BEFORE TRIAL.

At trial the state produced the testimony of three occupants of the murder victim’s Cadillac. One of the occupants, Gregory Rutherford, testified he recognized appellant as one of the men who fired a fusillade of bullets into the Cadillac. The other two occupants, Judy Simpson and Linda Byrth, could not identify appellant. They did, however, testify that Rutherford immediately stated appellant and Darrell Jones were the assailants. Bell raised a hearsay objection.2 At the conclusion of a bench conference concerning the objection, Bell stated to the assistant prosecuting attorney “what is she [witness Simpson] going to say? This witness refused to talk to me.” Appellant now escalates Bell’s remark into a dereliction of constitutional proportion.

At no time during the trial did Bell suggest he was surprised by evidence of Rutherford’s spontaneous exclamation. The record establishes the evidence was disclosed at Rutherford’s deposition. Further, Bell demonstrated he was well aware of Simpson’s version of the incident when he brought out on cross-examination that the dome light of the Cadillac had been turned on so Simpson could see to roll a marijuana cigarette.

Appellant claims the failure to depose Simpson and Byrth constitutes inadequate representation. However, he does not even speculate regarding what information may have been disclosed by the depositions and how it would have been helpful to his case. See Baker v. State, 584 S.W.2d 65, 68 (Mo.banc 1979); Murrell v. State, 679 S.W.2d 397, 398-99 (Mo.App.1984). Point denied.

Ill

FAILURE TO INTERVIEW CO-DEFENDANT DARRELL JONES WHO OFFERED EXCULPATORY INFORMATION TO APPELLANT.

At the motion hearing, Darrell Jones, an alleged participant in the murder, testified he met with appellant in the County Jail in February, 1977. He stated he told appellant then that if Bell had asked him to do so, he would have testified at appellant’s trial that appellant was not involved in the murder. Appellant’s trial, however, took place in December, 1976, roughly two months before Jones’ meeting with appellant. We can hardly find Mr. Bell guilty of a dereliction of duty under such circumstances. Moreover, we cannot find clearly erroneous the motion judge’s rejection of Jones’ claim that appellant did not participate in the crime. The trial court is entitled to believe or disbelieve the testimony of appellant and Jones, even if the testimony is uncontradicted. Gragg v. State, 700 S.W.2d 163, 165 (Mo.App.1985); Simpson v. State, 699 S.W.2d 100, 101 (Mo.App.1985). Here, the failure of appel[622]*622lant to mention this fortuitous windfall when his motion for new trial was argued and when he was afforded allocution certainly casts doubt upon the credibility of the testimony. Similarly, Jones’ willingness to testify that he committed the murder with others, not appellant, while the murder charge against him was still pending, is open to question. We cannot conclude the ruling of the trial court on this point was clearly erroneous.

IV

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

Related

State v. Suter
931 S.W.2d 856 (Missouri Court of Appeals, 1996)
Pines v. State
778 S.W.2d 724 (Missouri Court of Appeals, 1989)
Pirtle v. State
752 S.W.2d 376 (Missouri Court of Appeals, 1988)
Granger v. State
746 S.W.2d 598 (Missouri Court of Appeals, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
718 S.W.2d 619, 1986 Mo. App. LEXIS 4777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-state-moctapp-1986.