Aikens v. State, 38179

• Decision Date: 15 February 1977
• Docket Number: No. 38179,38179
• Citation: 549 S.W.2d 117
• Parties: Leevert AIKENS, Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 117

549 S.W.2d 117

Leevert AIKENS, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 38179.

Missouri Court of Appeals, St. Louis District, Division One.

Feb. 15, 1977.

Motion for Rehearing or Transfer Denied March 15, 1977.

Application to Transfer Denied May 10, 1977.

Robert C. Babione, Public Defender, Robert G. O'Blennis, Asst. Public Defender, St. Louis, for movant-appellant.

John D. Ashcroft, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas M. Daly, Asst. Circuit Atty., St. Louis, for respondent.

PER CURIAM.

Appellant, Leevert Aikens, appeals from an order of the circuit court of the City of St. Louis entered on May 18, 1976, overruling his motion to vacate sentence filed pursuant to Rule 27.26 V.A.M.R. In 1970 appellant was found guilty of the offense of rape and was sentenced under the second offender act to twenty years in the department of corrections. The conviction was affirmed by the Supreme Court. State v. Aikens, 473 S.W.2d 746 (Mo. 1971).

On October 21, 1975, appellant filed his pro se motion to vacate and set aside this conviction pursuant to Rule 27.26. The motion was amended on the date of the evidentiary hearing by court-appointed counsel, the public defender. Although alleging several grounds ¹ not pertinent here, the thrust of the motion and the point briefed on appeal is that movant-appellant was denied effective assistance of trial counsel because his retained attorney failed to "adequately investigate" the facts of the case and "failed to interview or produce witnesses for the defendant."

Appellant complains on this appeal that he saw his attorney retained by his mother only once before the trial of his cause, some four or five months prior to trial, and that the attorney failed to investigate the case and interview and produce two witnesses for the defense. On the day of trial, appellant informed counsel that he wanted two individuals to testify for him a woman, Mrs. Eltha Harris, and "(a) man by the name of George, I never did find his last name out." On the evidentiary hearing on the motion, movant testified:

"Well, my lawyer he never did reject anything that was going down in my trial because he wasn't aware of a lot of things because he didn't have any time to investigate it." ²

On the evidentiary hearing, movant testified that his mother, his wife and his brother testified for him in the original trial, but that Mrs. Harris and George did not. Appellant indicated that these two missing witnesses "could have spotted me from the time I was left and came on the scene when the crime was." His mother and other witnesses, he contends, could only account for a time earlier than the offense. Movant did not know the phone number of "George," knew where he lived, but did not tell counsel where he worked. He testified that he told his counsel about "George" but counsel stated that "he didn't need him because as long as I had my mother and wife and sister and them that was enough."

When questioned by the court, appellant said he did not know the addresses of the two witnesses but "I could find the house." He testified that he informed counsel about Mrs. Harris and told him where she lived but that "he told me I had enough witnesses as long as I had my mother and my wife and my brother and sister to say I was at home . . . I didn't need the rest of them." He testified that on the evening of the offense he "went by this woman's, Eltha Harris. She owed me ten dollars and told me to come by and pick it up so I went by there, and she wasn't at home, and her kids were there. . . ." He then left Mrs. Harris' house and "went over to" George who was getting out of his car. George asked him, " 'Where you going,' " and movant replied, " 'I am going to East St. Louis.' " George dropped him off and he saw a woman, the victim, "standing like she was in a trance" in this alley, and when the police "screamed and said 'What are you doing back in the alley?' (s)he kind of woke up 'cause of the lights in the alley flashing, . . . I broke and ran."

The only other witness at the evidentiary hearing was the assistant circuit attorney who tried the cause. He testified that defense counsel "did everything he could with what he had."

On May 18, 1976, the trial court made its findings of fact and conclusions of law. The court found that the appellant did not meet Mrs. Harris that evening of the rape, since she was not at home, and that appellant did not know the address, telephone number, or the last name of "George." The court concluded that (1) the movant "failed by a preponderance of the evidence to clearly demonstrate (that) the actions of counsel went beyond errors of judgment on trial strategy and were of such character as to result in substantial deprivation of Movant's right to a fair trial. Myrick v. State, 507 S.W.2d 42 ((Mo.App.) 1974)," and (2) the movant failed to establish by a preponderance of the evidence that defense counsel failed to make an effort to locate the witnesses or that the "witnesses were essential to the Defendant-Movant's case. Sykes v. State, 458 S.W.2d 319 ((Mo.) 1970)." The court denied the relief sought in the motion. Movant appealed.

In reviewing the judgment of the trial court denying the appellant's Rule 27.26 motion, we bear in mind the basic principles of such review. The burden of proof to establish the charge of ineffective assistance of counsel is on the movant. This burden is not met unless it is clearly demonstrated that the acts of counsel went beyond errors of judgment or trial strategy and were of such character as to result in a substantial deprivation of movant's right to a fair trial. McQueen v. State, 475 S.W.2d 111 (Mo. banc 1971); Nelson v. State, 537 S.W.2d 689 (Mo.App. 1976). We will not disturb the findings, conclusions and judgment of the trial court unless the same are clearly erroneous. Rule 27.26(j).

Under well-settled principles relating to a motion filed pursuant to Rule 27.26 summarized in Nelson v. State, supra, 537 S.W.2d at 693, we hold that the court did not err in denying the relief sought in appellant's motion to vacate. Upon a review of the trial court's order, the order is not "clearly erroneous." Rule 27.26(j). A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed.

The main thrust of appellant's contention is that counsel did not adequately investigate his case prior to trial and failed, although requested to do so, to interview and produce two witnesses at trial who allegedly would have aided his alibi defense, hence, counsel was ineffective.

There is no question that an accused is entitled to effective assistance of counsel. The test is whether the efforts of counsel and the representation by the attorney have reached a level of adequacy so that the defendant had a fair trial. Hall v. State, 496 S.W.2d 300, 303 (Mo.App. 1973); McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974). As stated in Anderson v. State, 487 S.W.2d 455, 460 (Mo. 1972), (quoting Robinson v. United States, 448 F.2d 1255, 1256 (8th Cir. 1971)):

". . . 'In order to assert a Sixth Amendment infirmity on this ground, the circumstances must demonstrate that which amounts to a lawyer's deliberate abdication of this ethical duty to his client. There must be such conscious conduct as to render pretextual an attorney's legal obligation to fairly represent the defendant.' "

But, in order to show ineffectiveness, a movant has a heavy burden to carry. Counsel is vested with broad latitude and he is not to be adjudged ineffective by reason of what, in retrospect, appears to be errors of judgment or trial strategy which did not produce an acquittal or some other desired result. Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App. 1974). To find ineffectiveness, the acts of trial counsel must have been of such character as to result in a substantial deprivation of the movant's right to a fair trial. Nelson v. State, supra, 537 S.W.2d at 695.

Appellant complains that counsel did not adequately investigate his case prior to trial and failed to produce two witnesses. We have never laid down a hard and fast rule which requires counsel to conduct an investigation and interviews of witnesses in all cases and under all circumstances. Hall v. State, supra, 496 S.W.2d at 304; McQueen v. State, supra, 475 S.W.2d at 114. When counsel does not interview or produce certain witnesses, it must be shown that the evidence which could have been...