Armour v. State, 52573
Decision Date | 06 October 1987 |
Docket Number | No. 52573,52573 |
Citation | 741 S.W.2d 683 |
Parties | James Michael ARMOUR, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
Court | Missouri Court of Appeals |
James S. McKay, St. Louis, for movant-appellant.
William L. Webster, Atty. Gen., Scott Templeton, Asst. Atty. Gen., Jefferson City, for respondent-respondent.
Movant appeals the denial of his Rule 27.26 motion following an evidentiary hearing. We affirm.
Movant initially was charged with two counts of capital murder and one count of first-degree robbery. As the result of a plea bargain, the state reduced the capital murder charges to two counts of first-degree (felony) murder, movant entered pleas of guilty to the robbery and amended murder charges, and the court ordered a presentence investigation. Because the presentence investigation report contained comments by movant which indicated he denied his guilt, the court refused to accept the pleas. Movant then entered an Alford plea, 1 and the court sentenced him to three concurrent terms of life imprisonment in accordance with the plea agreement.
Movant filed a pro se Rule 27.26 motion, amended following appointment of counsel, and the motion court held an evidentiary hearing. In denying the motion, the court issued findings of fact and conclusions of law. The court found that counsel was not ineffective and that movant suffered no prejudice.
In his sole point on appeal, movant alleges
The [motion] court was clearly erroneous in denying [movant's] claim of ineffective assistance of counsel under Rule 27.26 because the preponderance of evidence in the court below clearly established that [movant's] attorney made insufficient efforts to contact or produce two witnesses who could have supported [movant's] defense that he had not participated in the murders with which he was charged, and faced with such failure, the voluntariness of [movant's] guilty pleas was tainted.
From his original and amended motion and his point relied on, we perceive movant's contention to be that his counsel, Joseph Downey, was ineffective because he failed to investigate two witnesses whose names were supplied to counsel by movant, and, as a result of counsel's ineffectiveness, movant, relying on the recommendation of counsel, entered an involuntary Alford plea.
On December 22, 1979, movant was charged with two counts of capital murder and one count of first-degree robbery. Following plea negotiations, movant appeared before Judge Robert Lee Campbell of the Circuit Court of St. Louis County on November 12, 1980, and pled guilty to one count of first-degree robbery and the amended charges of two counts of felony murder. 2
The record indicates that prior to entry of movant's pleas, the prosecutor stated for the record what the state's evidence against him would be.
[PROSECUTOR]: Your Honor, the allegations involve two murders that occurred on the 19th of December of last year. The male victim is Derrick Richardson, was shot to death and he was also robbed. His body was found with the pockets turned inside out.
The State's evidence would be two weapons were used to shoot the man. He was also--there had been a struggle with Sonya Lathion and was also murdered. She had been beaten up and a cord had been tied with her hands behind her back and legs tied and the ligature also went around her neck.
She was found drowned in the bathtub in the same apartment where Derrick was found. A witness, who is the victim of Count III, robbery, who was from downstairs, a neighbor, came up and was met by two men, a man he knew who he identified as [movant] and another man.
Someone opened the door, the other man pushed him in the apartment and [movant] shut the door behind the man after he entered. The other man told him to empty out his pockets, which he did. And, the man was told not look at the two men. [Movant] and the other man left right after that and the victim's money was never recovered.
The State's evidence would be that [movant's] fingerprints or thumb print--palm print, was found in the apartment on the tile in the bathroom above where the body of Sonya was found in the bathtub. The State's evidence would be this is consistent with leaning against the tile for support while pushing someone in the bathtub, about the level of the bathtub.
The State's evidence would further be [movant's] fingerprints were found on a cup in the kitchen area of the apartment. [Movant] made numerous statements to both the police and to the victim's brother whom he knew.
The evidence will be [movant] knew both victims, [movant] on occasion had been seen with them. [Movant] denied having been in the apartment, however his fingerprints were found in those positions I told you.
[Movant] also alleged that he had been afraid of the other man. That the State's evidence would be the two men where together on numerous occasions after the murder and the first residence [movant] called after he was arrested was that of the codefendant. [Movant] was arrested approximately three days after the murders.
Movant said he understood the charges against him and admitted he was at the apartment when the killings occurred. The transcript then continues:
THE COURT: Did you get some of the money out of the robbery?
A. No.
THE COURT: What did you get out of the robbery?
A. I didn't get anything.
THE COURT: What was taken at the time, what was taken from the scene? What did you and the other fellow take?
A. I have to answer that?
THE COURT: Yes, please.
A. Money and television.
THE COURT: You took part in the robbery; is that correct?
A. Yes.
THE COURT: But, the main thing is, you are entering pleas of guilty because you are guilty; is that correct?
A. Yes.
The court advised movant of his rights, including trial by jury, and movant said he understood his rights and that, by pleading guilty, he was giving up those rights. After accepting the guilty pleas, Judge Campbell ordered the presentence investigation from the Board of Probation and Parole. The board's report contained this statement: At a December 11, 1980, meeting with movant's attorney, Judge Campbell said he could not "accept a plea of guilty and enter sentence on the pleas, as taken." He said he understood that movant wanted to enter an Alford plea and stated he desired "a better record if Mr. Armour ... wants the pleas to stand."
On December 18, 1980, movant again appeared before Judge Campbell who read into the record the equivocal statement from the presentence investigation report and then asked movant,
[h]as it been explained to you that merely receiving money from the robbery does not make you guilty of the murder; do you understand that?
A. I understand.
THE COURT: Do you wish to withdraw your plea of guilty and go to trial?
A. No.
The court then reminded movant of his right to a jury trial, and movant admitted that he had an opportunity to discuss with his attorney all the state's evidence, including the fingerprint evidence and the statement of the victim of the second robbery in which the victim identified movant as one of his robbers and as having been at the scene of the murders and robbery of Richardson. The court then questioned movant:
THE COURT: Now, in view of all of this evidence, is your feeling, after discussing this with Mr. Downey, that a jury might well convict you of capital murder?
A. Yes.
THE COURT: And, is that why you want to plead guilty to felony murder?
A. Yes.
THE COURT: And, you want to plead guilty and take three concurrent life sentences with a right of parole at any time the parole board determined; is that correct?
A. Yes.
THE COURT: And, you want to do that rather than take a chance of a life sentence without parole or probation for fifty years or even possibly get the death penalty; is that correct?
A. Yes.
A. No.
THE COURT: You understand, though, that rather than be sentenced today you would--I would permit you to withdraw these pleas and go to trial; do you understand that.
A. I understand it.
The court, in accordance with the plea bargain, then sentenced movant to three concurrent life sentences.
At the motion hearing, the court had available to it a record of the entire plea proceedings, including the initial guilty pleas, and the testimony of movant, Sylvia Horton, and attorney Downey. Movant stated he had met with Downey about six times and he admitted that he had discussed with him the charges, the state's evidence, and any evidence that he might have on his own behalf. He said he gave Downey the names of "a few" witnesses and that he could remember two: Felita Rodgers and Sylvia Horton. Asked about Ms. Rodgers's knowledge, he said she had no direct knowledge of the incident itself but that she saw him shortly after and she would be able to testify that his clothes were not wet. Movant admitted that he was present when the two victims were killed and that he received money from the robbery of Richardson. He also admitted he robbed the...
To continue reading
Request your trial-
State v. Hudson, s. 56177
...court with a definite and firm belief that a mistake has been made. Foster v. State, 748 S.W.2d 903, 905 (Mo.App.1988); Armour v. State, 741 S.W.2d 683, 688 (Mo.App.1987). The legal principles relative to the standards relating to ineffectiveness of counsel are In order to prevail on a clai......
-
Shaw v. State, 53948
...of the plea. Russell v. State, 755 S.W.2d 704, 705 (Mo.App.1988); Dehart v. State, 755 S.W.2d 611, 613 (Mo.App.1988); Armour v. State, 741 S.W.2d 683, 688 (Mo.App.1987). When a claim of ineffective assistance of counsel is based upon an alleged failure to investigate a witness, movant must ......
-
State v. Hamilton
...matter must be evaluated for reasonableness under the circumstances with great deference to counsel's judgment. Armour v. State, 741 S.W.2d 683, 689 (Mo.App.1987). Under these standards, we cannot hold the motion court erred in accepting counsel's explanations. The record does not reflect t......
-
Hannah v. State
...proving his asserted grounds for relief by a preponderance of the evidence." Childress v. State, 778 S.W.2d supra at 5; Armour v. State, 741 S.W.2d 683, 688 (Mo.App.1987). Point Hannah's final contention is that he was not afforded effective assistance of counsel because trial counsel faile......