Camillo v. State, WD

• Decision Date: 19 July 1988
• Docket Number: No. WD,WD
• Citation: 757 S.W.2d 234
• Parties: John Joseph CAMILLO, Appellant, v. STATE of Missouri, Respondent. 39650.
• Court: Missouri Court of Appeals

Page 234

757 S.W.2d 234

John Joseph CAMILLO, Appellant, v. STATE of Missouri, Respondent.

No. WD 39650.

Missouri Court of Appeals Western District.

July 19, 1988.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

Aug. 30, 1988.

Application to Transfer Denied Oct. 18, 1988.

Gregg T. Hyder, Columbia, for appellant.

William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and LOWENSTEIN and GAITAN, JJ.

GAITAN, Judge.

Appellant, John Joseph Camillo, appeals from the denial after an evidentiary hearing of his Rule 27.26 motion for post-conviction relief. We affirm.

Appellant was tried and convicted by a jury of two counts of arson in the second degree in violation of § 569.050, RSMo. He received consecutive terms of 10 years on each count. His appeal from that conviction was affirmed by this Court in State v. Camillo, 694 S.W.2d 517 (Mo.App.1985).

On October 28, 1985, appellant filed a motion to vacate sentence under Missouri Supreme Court Rule 27.26. On April 16, 1986, a supplemental motion was filed, and a hearing was held on that same day. On June 26, 1987, the court issued findings of fact and conclusions of law denying appellant's motion.

A brief statement of the facts from which these convictions arose is appropriate. The case involved two fires that were set at an unoccupied residence in Kahoka, Missouri. The first fire was reported at 6:20 a.m. on April 1, 1983. The second fire was reported at 3:50 a.m. on November 3, 1983. During this time, Kathy Jenkins owned and operated a tavern near the home that burned. The house was purchased for the parents of Kathy Jenkins and Kathy's name also appeared on the deed. In addition, she was serving as guardian for her father and as an attorney-in-fact for her mother.

The house was insured by All-State Insurance for $59,000.00. Following the death of her mother, the house became unoccupied and, in April of 1982, Kathy Jenkins entered into a real estate listing agreement to put the house on the market. The house was slow to sell and there were no prospective buyers at the time of the first fire. Although the first fire did considerable damage to portions of the interior, the house was saved. The insurance claim form was signed by Kathy Jenkins and she received the insurance proceeds from the loss. The insurance coverage on the house continued until November 6, 1983, three days subsequent to the second fire.

Appellant and Kathy Jenkins lived together for some time in 1978 and 1979 at a time when appellant was an escapee of the Missouri Penitentiary. One child was born of that relationship. Appellant was arrested in January of 1979 and returned to the penitentiary, where he remained until he was paroled in November of 1982. Following his release, appellant returned to the Kahoka area where he was employed by Tom Shannon in the manufacture of wood pallets.

Both appellant and Jenkins were charged, in separate cases, with arson with respect to each fire. At appellant's trial, there was little doubt that the fires were intentionally set. The April 1st fire was set with the use of trailers such as ropes soaked in petroleum products, and it was the state's theory that a time delay device such a candle was used to ignite the trailers. There was no evidence of either trailers or time delay devices in connection with the November 3rd fire.

With the exception of admissions allegedly made by appellant to Rodney Laymon, the state had no direct evidence of appellant's responsibility for the fire. Circumstantial evidence against him included his relationship with Kathy Jenkins, and the fact that a car similar to appellant's was seen on the streets of Kahoka during the night of the second fire.

Appellant offered alibi defenses with respect to both fires. With respect to the first fire, his evidence was that he had left the Kahoka area around 10:30 p.m. on March 31st to drive to Delavan, Wisconsin, to spend the Easter holiday with his family. Appellant's daughter verified that she had breakfast with her father at 7:30 a.m. on April 1, 1983. With respect to the second fire, appellant could not recall the events of that night, but testified that he would have been home with Rae Jean Lewis, with whom he was living at the time.

The admissions of appellant to Rodney Laymon were crucial to the state's case. Laymon testified that in March of 1983 appellant approached him about burning the Jenkins house to collect insurance proceeds. According to Laymon, appellant stated that Kathy Jenkins had agreed to pay appellant $5,000.00 to burn the house and had advanced $800.00 of that sum. Laymon testified that appellant subsequently told him how the April 1st fire was set using ropes soaked in gasoline and a candle used as a timer. Laymon also testified that in August a meeting took place between Kathy Jenkins, appellant and Laymon at Kathy Jenkin's tavern to discuss the burning of the house and to plan the setting of the second fire.

The strategy of the defense was to rely on appellant's alibi and to cast doubt upon Laymon's testimony. Appellant's counsel extensively cross-examined Laymon and pointed out Laymon's previous criminal convictions. He further cast doubt upon Laymon's testimony by establishing that Laymon did not inform the authorities about the admissions allegedly made by appellant until January of 1984. Appellant's counsel pointed out that charges were pending against Laymon at that time (unrelated to appellant's case), and, therefore, Laymon's testimony was given in exchange for a promise of leniency by the state on Laymon's pending charges.

At a later point in the case, the state called Irvin Roberts as a witness who testified that he had befriended Rodney Laymon and that Laymon had in fact made previous statements to him concerning appellant's admissions. The substance of the admissions by appellant was substantially reiterated to the jury through Roberts' testimony.

The main thrust of appellant's 27.26 motion is that his trial attorneys failed to provide adequate representation in that they did not adequately present the evidence on appellant's alibi, and that they failed to exclude certain testimony by Robert Laymon and Irvin Roberts. Specifically, appellant claims that he was denied effective assistance of counsel due to: (a) counsel's failure to investigate and present witnesses and real evidence bearing on appellant's alibi; (b) counsel's failure to interview the state's key witness; (c) counsel's failure to object to inadmissible and prejudicial hearsay testimony; (d) counsel's failure to object to testimony concerning appellant's alleged "gangster reputation"; (e) counsel's failure to either request a mistrial or an instruction to disregard when a witness testified concerning appellant's alleged drug use; and (f) counsel's failure to pursue issues on appeal.

Appellant testified at the 27.26 hearing in support of his various allegations of ineffective assistance. The state presented evidence from appellant's two trial attorneys, William Farrar and Wayne Fraser. On June 26, 1987, the Honorable Thomas J. Keedy issued findings of fact and conclusions of law denying appellant's request for relief. This appeal followed.

The standard for reviewing claims of ineffective assistance of counsel was set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which held: "First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. A defendant must make both showings. Id. See also Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979).

In his first point, appellant contends his attorneys were ineffective due to their failure to call Evelyn Shannon, Thomas Shannon, or Linda Shannon at trial. He further claims they were ineffective for their failure to produce Steven Summers, the owner of a sports car similar to his, and Rae Jean Lewis, appellant's girlfriend, at trial.

The presentation of evidence and selection of witnesses at trial are matters of trial strategy within the discretion of trial counsel. State v. Turner, 623 S.W.2d 4, 12 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). To support a charge of ineffective assistance of counsel in failing to secure testimony of a defense witness, the defendant must show how the testimony of an alleged key witness would have helped him and what the testimony would have been. Pelham v. State, 713 S.W.2d 614, 617 (Mo.App.1986); Pinkard v. State, 694 S.W.2d 761, 762 (Mo.App.1985). Indeed, it must be shown that the evidence would have aided the movant's position. Mullen v. State, 638 S.W.2d 304, 305 (Mo.App.1982).

William Farrar, one of appellant's trial attorneys, testified that Evelyn Shannon was discussed many times before trial as a potential witness. He felt that in some respects she would have been a good defense witness; however, she was unable to produce telephone records to substantiate the claimed telephone call of April 2, 1983. In addition, the testimony of the Shannons would have been largely redundant and inadmissible since they only would have testified as to appellant's statements that he planned to go to Wisconsin the week of April 1, 1983. Trial counsel did produce two witnesses, appellant's daughter and Todd Sublett, who verified appellant's trip to Wisconsin. As such, the decision not to call the Shannons appears to be one of trial strategy. An attorney's decision not to call witnesses does not demonstrate a lack of skill and competence where the witnesses' testimony would have been uncertain and inconclusive regarding an alibi. Abrams v. State, 698 S.W.2d 15, 17 (Mo.App.1985).

As to Steve Summers, appellant's own testimony at the 27.26 hearing established only that Summers had a car similar to his. He had no...