Boggs v. State

• Decision Date: 18 December 1987
• Docket Number: No. 15078,15078
• Citation: 742 S.W.2d 591
• Parties: John BOGGS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 591

742 S.W.2d 591

John BOGGS, Appellant, v. STATE of Missouri, Respondent.

No. 15078.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 18, 1987.

Motion for Rehearing and to Transfer to

Supreme Court Denied

Dec. 30, 1987.

M. Elise Branyan, Asst. Public Defender, Springfield, for appellant.

William L. Webster, Atty. Gen., Scott L. Templeton, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Chief Judge.

John Boggs ("movant") appeals from a judgment dismissing his first amended motion under Rule 27.26, Missouri Rules of Criminal Procedure (17th ed. 1986), to vacate his conviction of first degree murder, § 565.003, RSMo 1978, and sentence of life imprisonment. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Boggs, 634 S.W.2d 447 (Mo. banc 1982).

Movant commenced the instant proceeding by filing a pro se motion to vacate on September 10, 1984. We henceforth refer to that pleading as "the pro se motion."

Counsel was subsequently appointed to represent movant, and on June 24, 1986, counsel filed on movant's behalf a first amended motion for relief under Rule 27.26. That pleading incorporated every allegation of the pro se motion and added certain allegations that did not appear in the pro se motion. We henceforth refer to the motion filed by counsel as "the first amended motion."

Two days later, on June 26, 1986, movant, over his own signature, filed an amended motion incorporating every allegation of his pro se motion and adding certain allegations that did not appear in the pro se motion. We henceforth refer to the motion of June 26 as "the second pro se motion."

On October 9, 1986, the prosecutor filed a motion to dismiss movant's "claim" without an evidentiary hearing.

On January 22, 1987, the circuit court, henceforth referred to as "the motion court," filed written findings of fact, conclusions of law and judgment granting the prosecutor's motion to dismiss. This appeal followed.

Movant briefs one assignment of error. It states:

"The [motion] court clearly erred ... when it sustained [the prosecutor's] motion to dismiss without an evidentiary hearing because movant's pro se and [second pro se and first amended] motions contained a sufficient factual basis to entitle him to an evidentiary hearing as to whether he was deprived of ... effective assistance of counsel when his trial attorney failed to conform his conduct to the care and skill of a reasonably competent attorney rendering similar services under existing circumstances when counsel failed to (1) make an opening statement; (2) object to and/or refute testimony by State's witnesses Jim Woodward, Don Smith, Detective Whitlow and Detective Lowe; (3) call defense witnesses Wanda Cox, Kathy Glover, Bert Twibell and [Louren] Davidson; (4) offer or request jury instructions on second degree murder (conventional), second degree murder (felony) and burglary in the second degree; and (5) failed to object to the improper form of the State's verdict directors on murder in the first degree and manslaughter."

In Sanders v. State, 738 S.W.2d 856 (Mo. banc 1987), the Supreme Court of Missouri, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), held that in order to prevail on a claim of ineffective assistance of counsel, a prisoner seeking post-conviction relief under Rule 27.26 must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that the prisoner was thereby prejudiced. The prisoner must satisfy both the performance prong and the prejudice prong to prevail. Sanders, at 857. The Supreme Court of Missouri quoted the following standard from Strickland:

"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93.

Sanders, at 857-58.

Amplifying the above passage, Strickland went on to explain that an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment if the error had no effect on the judgment. 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 696. Thus, said Strickland, the prisoner must show that 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. 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

To be entitled to an evidentiary hearing on the issue of ineffectiveness of counsel, a prisoner seeking post-conviction relief must plead facts, not conclusions, which if true would warrant relief; those facts must not be refuted by the record; and the matters complained of must have resulted in prejudice to the prisoner. Mannon v. State, 727 S.W.2d 936, 938 (Mo.App.1987); Baker v. State, 680 S.W.2d 278, 281 (Mo.App.1984); Merritt v. State, 650 S.W.2d 21, 22 (Mo.App.1983). A motion to vacate under Rule 27.26 which contains mere conclusional allegations and sets out no facts which, if true, would authorize relief does not warrant an evidentiary hearing. State v. Lillibridge, 399 S.W.2d 25, 28 (Mo.1966), cert. denied, 384 U.S. 956, 86 S.Ct. 1579, 16 L.Ed.2d 551 (1966); State v. Statler, 383 S.W.2d 534, 537 (Mo.1964); State v. Ninemires, 306 S.W.2d 527, 530 (Mo.1957).

Guided by the above principles, we shall examine separately each averment in the pro se motion, the second pro se motion, and the first amended motion pertaining to each of the five numbered instances of alleged ineffective assistance of counsel enumerated in movant's assignment of error, quoted supra, to determine whether any of those averments pleaded facts which, if true, would warrant relief.

We begin with instance "(1)," a complaint by movant that his trial attorney, henceforth referred to as "defense counsel," was derelict in failing to make an opening statement.

Paragraph 3(b)(i) of the first amended motion alleges that defense counsel "failed to make an opening statement." That is all the first amended motion says on the subject. Nowhere therein do we find any allegation as to what defense counsel should have said in an opening statement. The absence of such an allegation is not surprising, however, as movant presented no evidence at the jury trial.

Defense counsel's failure to make an opening statement is not mentioned in either the pro se motion or the second pro se motion.

The motion court's findings included this:

"Movant ... complains about his counsel's failure to give an opening statement.... there are no facts alleged which indicate prejudice or grounds for relief. Additionally, prior to beginning the defense case, Movant's counsel and Movant came before the Court to announce that no evidence would be presented on behalf of the defendant.... Since the function of an opening statement has traditionally been to outline the defense case, and here there was none, it is difficult to see what counsel would have accomplished in an opening statement that could not have been better served in a closing argument. Movant's point is without any merit."

Our review of a circuit court's judgment in a proceeding under Rule 27.26 is limited to a determination of whether the findings, conclusions, and judgment of such court are clearly erroneous. Sanders, at 857; Rule 27.26(j).

The purpose of an opening statement is to inform the court and jury as to the nature of the case, give an outline of the anticipated proof and point out the significance of the evidence as it will be presented. State v. Bibbs, 634 S.W.2d 499 501 (Mo.App.1982). Argument is not the proper function of an opening statement. State v. Ivory, 609 S.W.2d 217, 222 (Mo.App.1980).

As there was no evidence to be presented by movant, we cannot conceive anything defense counsel could have properly said in an opening statement, and, as noted earlier, none of movant's three motions supply any clue.

In Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975), a prisoner sought post-conviction relief, alleging his counsel was ineffective in failing to investigate all possible defenses. Affirming the circuit court's denial of relief without an evidentiary hearing, the Supreme Court of Missouri held that the allegation was insufficient in that it failed to allege what defenses were available and likely would have been discovered if further investigation had been made. Id. at 411. ¹

In State v. Washington, 399 S.W.2d 109 (Mo.1966), a prisoner seeking post-conviction relief alleged, among other things, that his counsel "did not do very much" and "did not even thoroughly investigate the law, facts, and circumstances of the case." The circuit court denied relief without an evidentiary hearing. The Supreme Court of Missouri affirmed, holding that the allegations were insufficient to present an issue as to effective assistance of counsel. Id. at 112.

In State v. Warren, 321 S.W.2d 705 (Mo.1959), a prisoner seeking post-conviction relief alleged, among other things, that his counsel did not attempt "to provide a defense," that counsel failed to protect every right of the prisoner, and that counsel abandoned the prisoner by failing to present evidence or testimony which would have established that the prisoner was not guilty. The circuit court denied relief. The Supreme Court of Missouri affirmed, holding that the allegations were only conclusions, and were insufficient to afford a basis for relief. Id. at 709-10.

Applying Smith, Washington and Warren to instance "(1)" in movant's assignment of error, we hold that movant, in the motion court, pleaded no facts which, if true, would have authorized relief based on defense counse...