Brame v. State, KCD30228

• Decision Date: 03 March 1980
• Docket Number: No. KCD30228,KCD30228
• Citation: 597 S.W.2d 665
• Parties: John Madison BRAME, Jr., Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 665

597 S.W.2d 665

John Madison BRAME, Jr., Movant-Appellant, v. STATE of Missouri, Respondent.

No. KCD30228.

Missouri Court of Appeals, Western District.

March 3, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 7, 1980.

Dale K. Irwin, Legal Aid of Western Missouri, Kansas City, George L. Stafford, Legal Aid of Western Missouri, Sedalia, for movant-appellant.

John Ashcroft, Atty. Gen., Steven Scott Clark, James R. Cumbee, Asst. Attys. Gen., Jefferson City, for respondent.

Before DIXON, P. J., TURNAGE and KENNEDY, JJ.

DIXON, Judge.

Movant appeals from denial of successive motions to vacate judgment and sentence pursuant to Rule 27.26.

Isolation of the issues presented is made difficult by the confused and lengthy procedure by which the appeal was lodged in this court and by the filing of two briefs raising a welter of issues. All of the various claims of error may be categorized under the general rubric of ineffective assistance of counsel and a claim that the trial court erred in failing to make appropriate findings of fact and conclusions of law.

The movant's underlying conviction was for a theft of property in excess of $50. The jury failed to agree on punishment, and the trial judge assessed punishment at imprisonment for a term of ten years. The direct appeal of the conviction is reported in State v. Brame, 542 S.W.2d 591 (Mo.App.1976).

Adverting now to the procedural background, the original Rule 27.26 motion was filed pro se. Counsel was appointed and an amendment was made to the pro se motion and a hearing afforded. At the conclusion of the hearing and after hearing argument and being presented with authority, the court dictated a short statement on the record denying the movant relief. The movant indicated on the record he did not desire to appeal.

About two months later, the movant filed an application for leave to file a successive motion under Rule 27.26. The court granted leave, filed the motion, and summarily dismissed the motion. This filing of the second motion was in the original case and more than thirty days after the original motion was disposed of by the court's order.

The next step in the confusing chronology of this appeal was the filing in this court of a pleading entitled a "Petition for Writ of Mandamus or in the Alternative a Motion for Leave to File an Untimely Notice of Appeal." Then followed an attempt by a fellow inmate of movant to enter the case to assist movant as an "inmate counselor." This court declined the proffered assistance, denied the mandamus, and sustained the motion for an untimely appeal. The trial court was directed to appoint counsel, which was accomplished, and a Notice of Appeal was filed appealing only as to the overruling of the initial motion. Original counsel on the Rule 27.26 proceeding was then permitted to withdraw, and new counsel was appointed. Counsel then filed the initial appellant's brief. After extension of time, respondent's brief was filed.

There was then filed an entry of appearance by co-counsel for movant and a motion to file an amended appellant's brief. Movant then filed what was styled an "Amended Notice of Appeal" in the Circuit Court, and that pleading was sent to this court and filed here without order or action. Finally, the amended brief was filed on behalf of movant, and respondent's amended brief was also filed.

The record also shows that two motions to supplement the transcript, one to file the trial transcript of the original trial and one to file the second and successive motion under Rule 27.26, were filed in this court. The first such motion was sustained. The latter motion was filed after the case was docketed and has never been ruled by the court.

The case was submitted on briefs September 20, 1979, and the motion to supplement the transcript by filing the second Rule 27.26 motion was filed September 13. Despite this lack of a ruling on the motion to supplement the transcript, the second and successive motion under Rule 27.26, bearing the file stamp of the circuit clerk, was filed in this court on September 27. This "motion" bears a handwritten legend, "Supplemental Transcript."

There is a strong temptation to ignore the legal conundrum presented by this procedural muddle. The application of settled precepts concerning appellate review will pose the possibility of more litigation and additional burden on already strained judicial resources. However, nothing is more settled as a principle of appellate review than that a timely notice of appeal is a jurisdictional prerequisite to judicial review.

In the instant case, the only notice of appeal that can be noted is the one filed pursuant to the order of this court permitting its late filing. That notice of appeal raises only the issue of the trial court's ruling on the initial Rule 27.26 motion. Even if that initial notice of appeal had purported to seek review of the second and successive motion under Rule 27.26, this court's jurisdiction would be questionable. This is so because of the initial error of the circuit clerk in filing the second motion as a part of the records of the first motion. When that second motion was filed and ruled by the trial court, it was done in a cause over which the court no longer possessed jurisdiction, more than thirty days having elapsed since the original motion had been ruled upon.

In this procedural posture, the motion to file the second Rule 27.26 motion as a supplemental transcript must be denied and the filing of the second motion stricken.

This action leaves for consideration only the issues raised with respect to the original Rule 27.26 motion. In the original brief filed, there were three points relating to the general issue of ineffectiveness of counsel at trial. The points raised are that counsel was ineffective (1) by improper preparation; (2) failure to poll the jury; (3) failure to disqualify the trial judge.

Review of these claims is limited to a determination of whether the findings, conclusions, and judgment of the trial court were clearly erroneous. Rule 27.26(j); Careaga v. State, 552 S.W.2d 25, 27 (Mo.App.1977). A finding is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed after considering all of the evidence. Careaga citing Crosswhite v. State, 426 S.W.2d 67, 70-71 (Mo.1968).

The standard by which ineffective assistance of counsel can be measured has followed a tortuous course in the case law. The standard utilized in State v. Schaffer, 454 S.W.2d 60, 65 (Mo.1970), was whether counsel's actions or lack thereof made the trial a farce or a "mockery of justice." In Smith v. State, 473 S.W.2d 719, 722 (Mo.1971), the standard was whether circumstances demonstrated what amounted to a deliberate abdication of counsel's ethical duty to the client. And, finally, in Eldridge v. State, 592 S.W.2d 738 (Mo. banc 1979), citing Sims v. State, 496 S.W.2d 815 (Mo.1973), the question for the trial court was whether defendant had received a fair trial. More recently, but given only prospective application to Rule 27.26 hearings held after April 25, 1979, Seales v. State, 580 S.W.2d 733 (Mo. banc 1979), adopted the test devised in Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978), and Witham v. Mabry, 596 F.2d 293 (8th Cir. 1979), citing Thomas v. Wyrick, 535 F.2d 407 (8th Cir. 1976), cert. denied, 429 U.S. 868, 97 S.Ct. 178, 50 L.Ed.2d 148, and McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974). Under this test, to prevail on a claim of ineffective assistance of counsel, movant 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 he was prejudiced thereby.

Whatever verbalization of the standard of effectiveness of counsel is considered, the difficulty inherent in the task of review remains. This difficulty inheres in the adjudicative process. By the very nature of a criminal trial, a lawyer's function is a continuing judgmental process. Choices are constantly presented for one alternative action or another, often in a shifting factual situation with little or no time for reflective thought before decision is required. Whether to voir dire extensively upon slight indication of bias, make or reserve an opening statement, object or not, cross examine or not, present evidence or not, are some of the multitude of choices presented in an almost endless variation of the factual settings. Factors which influence those practical judgments are often subtle and not apparent on a cold record. The demeanor of a witness, the attitude of a trial judge, the reaction of a jury to a witness's testimony may all be factors entering into a lawyer's judgment as to the alternative course to pursue. Likewise, in the setting of a criminal trial, the alternatives may be all bad. The judgment of the defense lawyer may have to be exercised between a choice of evils. This process is then subject to the after-the-fact claims of a prisoner who has nothing to lose and apparent impunity with respect to the most blatant falsehood and misstatement in his post-conviction claim as to the ineffectiveness of counsel.

The instant case affords ample illustration. Movant claimed in his motion that defense counsel spent "5 minutes" conferring with the defendant before trial. Movant, in his testimony, conceded he conferred with counsel for about an hour. The lawyer, basing his testimony on time records, said at least 62/3 hours were spent in personal consultation with the defendant out of the total hours devoted to the defense of over 53 hours.

On the issue of polling the jury, movant's assertion is that, since the jury deliberated only a little over half an hour, it is apparent the lawyer should have requested a poll. Factually, the testimaony is that the trial judge asked the jury collectively if the verdict as read in the courtroom was...