Wilson v. State

50 S.W.3d 885, 2001 Mo. App. LEXIS 933, 2001 WL 579857
CourtMissouri Court of Appeals
DecidedMay 31, 2001
DocketNo. 23607
StatusPublished
Cited by1 cases

This text of 50 S.W.3d 885 (Wilson 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
Wilson v. State, 50 S.W.3d 885, 2001 Mo. App. LEXIS 933, 2001 WL 579857 (Mo. Ct. App. 2001).

Opinion

GARRISON, Judge.

Lance Eugene Wilson (“Movant”) appeals from the denial of his Rule 29.151 motion following an evidentiary hearing. On appeal, Movant alleges that the motion court clearly erred in denying his claim that his trial counsel was ineffective for failing to object to testimony presented by the State. We affirm.

On January 8,1996, Officer Steven Cunningham (“Officer Cunningham”) of the Lebanon Police Department stopped Mov-ant after he observed his car weaving. As a result of field sobriety tests and the odor of intoxicants on Movant’s breath, Officer Cunningham arrested him for driving while intoxicated. During a subsequent search of Movant’s vehicle, Officer Cunningham discovered a pint bottle of whiskey.

Movant was taken to the sheriffs department and given Miranda warnings. Movant agreed to speak with Officer Cunningham and was asked questions in conjunction with the preparation of an alcohol influence report. Officer Cunningham asked him if he was taking any tranquilizer pills or medicine of any kind. Movant stated that he had a cold and was taking cold medication. Movant also told him that he had been driving and that he was under the influence of alcohol, but that he had not been drinking. Officer Cunningham asked Movant to take a breathalyzer test, but he refused.

Movant was charged by amended information, as a prior and persistent offender, with the class D felony of driving while intoxicated in violation of Section 577.010. A jury found him guilty, and he was sentenced to ten years imprisonment. His conviction was affirmed on appeal in March 1999. Movant, thereafter, filed a Rule 29.15 motion for post-conviction relief, which was later amended. The motion court denied relief following an evi-dentiary hearing. Movant appeals.

Review of the denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Leisure v. State, 828 S.W.2d 872, 873-74 (Mo. banc 1992). The findings and conclusions of the motion court are clearly erroneous only if, after review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. State v. Vinson, 800 S.W.2d 444, 448 (Mo. banc 1990); George v. State, 973 S.W.2d 114, 115 (Mo. App. S.D.1998).

To prevail on a claim of ineffective assistance of counsel, a movant must show that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances and that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Kelley, 953 S.W.2d 73, 91 (Mo.App. S.D.1997). Prejudice is shown where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. There is a strong presumption that counsel’s performance constituted sound trial strategy. Cardona-Rivera v. State, 33 S.W.3d 625, 628 (Mo.App. S.D.2000).

In his sole point on appeal, Movant contends that the motion court erred in denying his Rule 29.15 motion for post-convic[888]*888tion relief in that his trial counsel was ineffective for failing to object to the State’s redirect examination of Officer Cunningham regarding Movant’s reasons for refusing to take the breathalyzer test. Movant argues that those questions were designed to call attention to Movant’s post-arrest silence.

Movant alleges that the following testimony during the redirect examination of Officer Cunningham was prejudicial and should have been objected to by his trial counsel:

[Prosecutor]: Did [Movant] ever tell you that he didn’t want to take [the breathalyzer test] because he didn’t think it was operating properly?
[Officer Cunningham]: No, sir.
[Prosecutor]: Did he ever give you a reason why he didn’t want to take it?
[Officer Cunningham]: Not that I recall.
[Prosecutor]: Would you have noted that?
[Officer Cunningham]: Probably.

During the evidentiary hearing, Mov-ant’s trial counsel testified as to why he did not object to the State’s line of questioning:

Q Do you recall the prosecutor asking [Officer Cunningham] questions about [Movant] giving a reason or excuse a lot the time [sic] for his refusal to submit to a breathalyzer test?
A Yes.
Q And was [Movant] under arrest at the time that he refused to submit to the breathalyzer?
A Yes.
Q And at the time of the trial did you recognize that last questioning to be directed toward his silence after his arrest?
A No, I did not. It was my understanding that he had already, never invoked the right to remain silent, answered several questions on the alcohol influence report and others and he had never invoked that right to my knowledge. That’s why I didn’t object.
Q Of course, he is entitled to invoke his right at any time after his arrest, is that correct?
A That’s correct, my understanding was that he had not.
Q Did you recognize at the time that what those questions the [S]tate was suggesting that [M]ovant should have spoken up and said something at that time and why he was refusing the breathalyzer test?
A My understanding what they were trying to do was, we had brought up or the questions to [Officer Cunningham] that a person might refuse to submit for any number of reasons other than the fact that they believed they were positive and it was my understanding [Mov-ant] did not want to testify as to why he refused and so, at that point I believe in my mind I opened the door for the [S]tate to ask those questions. And [Movant], it’s my understanding did not want to take the stand himself, because of the prior convictions, to refute that. I didn’t believe I had any basis to object at that point.
Q So the answer to that question then is that you did recognize that was calling for comments about his—
A No, they were, I didn’t believe they were calling into question his right to remain silent, I didn’t think he invoked that right. I understand what they were asking. I didn’t think it imposed on his rights or I would have objected. That’s what I am trying to say.

Trial counsel further testified:

Q Now, you’ve discussed a little bit about the reasons why [Movant] might not take a breathalyzer test?
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Related

Williams v. State
205 S.W.3d 300 (Missouri Court of Appeals, 2006)

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Bluebook (online)
50 S.W.3d 885, 2001 Mo. App. LEXIS 933, 2001 WL 579857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-state-moctapp-2001.