Bryant v. State, 11346.

• Decision Date: 15 October 1980
• Docket Number: No. 11346.,11346.
• Citation: 604 S.W.2d 669
• Parties: James Eddie BRYANT, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

604 S.W.2d 669

James Eddie BRYANT, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 11346.

Missouri Court of Appeals, Southern District, Division 2.

August 4, 1980.

Motion for Rehearing and for Transfer Denied August 20, 1980.

Application to Transfer Denied October 15, 1980.

COPYRIGHT MATERIAL OMITTED

David P. Anderson, Springfield, for movant-appellant.

John Ashcroft, Atty. Gen., Mary C. P. Pincus, Steven W. Garrett, Asst. Attys. Gen., Jefferson City, for respondent.

Appellant's Motion for Rehearing and for Transfer Denied August 20, 1980.

MAUS, Judge.

This is an appeal from a judgment denying the appellant's motion for post conviction relief filed under V.A.M.R.Crim. Rule 27.26. Appellant was charged with the felony murder of Clarence Lamb on December 7, 1974. After a five-day trial producing a transcript of 1143 pages, on July 11, 1975, the jury returned a verdict of guilty. The appellant's motion for a new trial presenting 20 points of alleged error was heard and overruled. He was sentenced to life imprisonment. His conviction was affirmed by this court. State v. Bryant, 558 S.W.2d 269 (Mo.App.1977). In his pro se 27.26 motion, the appellant alleged in general terms nine points for relief. Diligent appointed counsel amplified these points and added four additional points. An extensive evidentiary hearing was held. Upon thorough and painstaking analysis of the points raised and evidence presented, the 27.26 trial court made comprehensive findings of fact and conclusions of law and denied the motion. The appellant now presents five points wherein he asserts the 27.26 trial court erred in so denying his motion.

Before proceeding to the merits, this court must determine if it has jurisdiction of this appeal from the denial of a 27.26 motion to vacate a life sentence. Notice of Appeal was filed April 12, 1979, and jurisdiction must be determined under amended Mo.Const.Amend. Art. V, § 3, which became effective January 1, 1979. State v. Garrett, 595 S.W.2d 422 (Mo.App.1980). Under that amended provision the Supreme Court has exclusive jurisdiction "in all cases where the punishment imposed is death or imprisonment for life".

Under the preceding Art. V, § 3, the Supreme Court had exclusive jurisdiction "in all appeals involving offenses punishable by a sentence of death or life imprisonment". In determining jurisdiction of 27.26 appeals under this provision, the Supreme Court considered the underlying offense. "This appeal from a ruling under S.Ct. Rule 27.26, V.A.M.R., is an appeal `involving' such offense, and jurisdiction is in this Court." Garrett v. State, 481 S.W.2d 225, 226 (Mo. banc 1972). Also see Parks v. State, 492 S.W.2d 746 (Mo. banc 1973); Ginnings v. State, 506 S.W.2d 422 (Mo.1974). However, the current provision no longer defines the Supreme Court's jurisdiction upon the basis of what the appeal "involves". It is now dependent upon whether or not the punishment imposed in the case on appeal is imprisonment for life or death. A proceeding under Rule 27.26 is a separate case, civil in nature. Layton v. State, 500 S.W.2d 267 (Mo.App.1973). No punishment is imposed in appellant's 27.26 case and this court has jurisdiction even though the appeal involves a prior case in which the punishment of life imprisonment was imposed. The appellant's motion to transfer this appeal to the Supreme Court was properly denied.

In his first point the appellant alleges the relief sought should have been granted because of ineffective assistance of counsel at his five-day trial. Since the 27.26 hearing was held prior to April 25, 1979, the trial court properly reviewed the evidence to determine whether or not ineffective assistance of counsel had denied the appellant a fair trial. Goforth v. State, 585 S.W.2d 537 (Mo.App.1979). To support this point, the appellant cites 41 alleged deficiencies of counsel in regard to the admission or rejection of evidence. Of 21 instances of alleged improper failure to object or to object properly, in only seven instances would such an objection have had a reasonable chance of being sustained. In regard to four of these instances, counsel gave a tactical reason why he did not object. Twenty instances assert improper failure to obtain the admission of evidence by not demonstrating relevancy, rephrasing a question, or requesting a reason for the trial court's ruling. Seven of these instances deal with evidence for impeachment of the state's witnesses. The trial court has broad discretion in limiting the admission of evidence for impeachment. State v. Davis, 566 S.W.2d 437 (Mo. banc 1978). The trial court, apparently due to the persuasiveness of appellant's counsel, was liberal in the admission of evidence for that purpose. However, there is no reason to think the action appellant now suggests his counsel should have taken would have caused the trial court to extend the limits of admissibility any further than it did. It should also be noted that in many of the instances complained of the excluded evidence concerned a point that was otherwise developed or established. Ineffectiveness of counsel is not established because counsel would not make a futile argument in support of the motion for acquittal. Clark v. State, 578 S.W.2d 60 (Mo.App.1978). Nor is it established by principal counsel's failure to object to his co-counsel, in a heated manner, causing to be expunged from the record a suggestion that he had improperly told a law enforcement officer that he represented a witness for the state. Nor is ineffectiveness demonstrated by counsel's failure to object to the argument of the prosecuting attorney inquiring, where is appellant's common-law wife with whom he testified he had spent the evening of the crime? Booth v. State, 491 S.W.2d 286 (Mo. 1973); Jackson v. State, 540 S.W.2d 616 (Mo.App.1976).

In spite of the foregoing review of appellant's assertions, ineffective assistance of counsel is not to be determined by a post trial academic determination that counsel could have successfully objected to or introduced evidence in a given number of instances. Goforth v. State, supra. Suffice it to say, that in no instance where an objection could have been properly sustained or proffered evidence received, was that evidence of great significance or persuasiveness. The original trial court, obviously with justification, commented: "This case has been well tried by both the prosecution and defense . . .. I don't know when I have seen a case that was any better presented by both sides." The 27.26 trial court considered the alleged deficiencies individually and collectively and concluded they did not demonstrate the appellant, because of ineffectiveness of counsel, had been denied a fair trial. The evidence supports that determination, Webb v. State, 589 S.W.2d 89 (Mo.App.1979), as it would a determination that counsel's performance conformed to the care and skill of a reasonably competent lawyer rendering similar services under the existing conditions. Seals v. State, 580 S.W.2d 733 (Mo. banc 1979).

The appellant's next point is that his conviction was obtained as a result of the bias and prejudice of the trial judge. Because of the import of this assertion, this court will lay aside the contention that such an alleged error is not cognizable under Rule 27.26 and fully consider this point. To support this point, the appellant cites 17 instances which he asserts demonstrate bias and prejudice against the appellant or his counsel. Four of these instances deal with the comments of the trial judge upon reading the recess cautionary instruction, MAI-CR 1.08. Upon overruling appellant's motion for a mistrial for failure to read that instruction on one occasion, the court observed that he had done so for two days at the risk of boring the jury to death and that he got tired of telling the jury over and over and over again the same thing. When so instructing the jury on one occasion he remarked, "I know you get awfully tired of hearing this"; on another he said, "here we go again"; and on yet another instance he inquired of the jury "guess what I am going to say to you?" and a juror responded, "a little speech". The appellant insists that this instruction was for his benefit and the comments of the judge indicated his bias and prejudice. This is a strained inference. The proper rationale was expressed by the 27.26 trial court in saying: "Only a judge who has been compelled to recite this litany to twelve weary jurors several times each day during a multi-day trial can understand the discomfiture of a trial judge when expressions of boredom, impatience, amusement, incredulity, disgust and other emotions cross the faces of those to whom he must direct this admonition. This Court cannot fault the trial judge for his efforts, however awkward, to ease into what sometimes becomes an uncomfortable chore during any protracted criminal jury trial."

Bias and prejudice were not indicated by the trial judge's expression of incredulity upon defense counsel's request for a mistrial because the sheriff was in the courtroom during the trial; nor by overruling an objection to the prosecuting attorney reading the appellant's confession to the jury; nor by the refusal of a bench conference upon appellant's objection to certain exhibits when that conference would have served no purpose; nor by a firm admonition to appellant's counsel not to ask a question to which an objection had been sustained. The trial judge was presented with an inordinate number of offers of evidence of doubtful relevance. He was liberal in permitting the appellant to present such evidence. Nevertheless, the appellant argues that the comments of the trial judge on two such offers displayed his bias and prejudice. In one instance, when counsel for appellant was asking a chiropractor his diagnosis of the appellant's neck lash injury received in a car accident approximately two weeks before the murder, and the state objected, the...