Chapman v. State, 50758
| Citation | 720 S.W.2d 17 |
| Decision Date | 30 September 1986 |
| Docket Number | No. 50758,50758 |
| Parties | Giles CHAPMAN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Court of Appeal of Missouri (US) |
Maria V. Perron, Asst. Public Defender, Clayton, Mo., for movant-appellant.
John M. Morris, Asst. Atty. Gen., Jefferson City, Mo., for respondent-respondent.
Movant appeals from the denial of his Rule 27.26 motion without an evidentiary hearing. We affirm.
In 1980 movant pled guilty to second degree murder. After his motion to withdraw that plea was granted, he was convicted of first degree murder by a jury and sentenced to life imprisonment. That conviction was reversed by the Missouri Supreme Court in State v. Chapman, 627 S.W.2d 597 (Mo.1982), because of the erroneous admission of certain hearsay testimony. A different attorney represented movant at his second trial in 1982, which also resulted in his being convicted by a jury of first degree murder and sentenced to life imprisonment. Movant's subsequent appeal to this court was dismissed.
On May 7, 1985, movant filed a pro se 27.26 motion which was amended after the appointment of counsel. Upon examining the original plea of guilty, the transcript of both trials, and the supreme court's decision in Chapman, supra, the court denied movant's motion without an evidentiary hearing.
Movant's point on appeal is:
The circuit court erred in denying appellant's motion for post-conviction relief and his request for an evidentiary hearing pursuant to Missouri Supreme Court Rule 27.26 in that the evidence would have shown that trial counsel's performance did not conform to the degree of care and skill of a reasonably competent attorney under similar circumstances. Moreover, appellant and trial counsel had become embroiled in an irreconcilable conflict concerning the defense of his case.
In order to be entitled to an evidentiary hearing on a 27.26 motion, the movant must meet the requirements established in Smith v. State, 513 S.W.2d 407 (Mo. banc 1974). Those requirements are: (1) the motion must allege facts, not conclusions, warranting relief; (2) those facts must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant. Kearns v. State, 583 S.W.2d 748 (Mo.App.1979).
After examining the movant's motion and brief we are convinced that the only issue raised which could conceivably have entitled him to an evidentiary hearing was his claim that on several occasions he requested that Mr. Musich, his counsel at the second trial, present the same alibi defense utilized at his first trial, but Musich ignored movant's request and failed to present any alibi evidence.
At movant's first trial he, his father and one of his brothers testified in support of the alibi defense. Movant and his brothers lived with his father, and movant testified that he had been at home during most of the evening on which the murder occurred. The brother and father did not supply an absolute alibi for the defendant at the first trial; however, they supported movant's testimony in many respects.
In denying the motion to vacate, the court indicated that it had examined the plea of guilty as well as the transcript of both trials. The transcript of the second trial reveals that immediately prior to the beginning of that trial, the court ruled upon two of defendant's motions. At that time, defendant indicated that he would like to have different counsel appointed because there was a disagreement as to his defense. The judge told movant that "I am not going to discharge [counsel] but I will let him assist you and I will let you defend it in any way you want to, Mr. Chapman." After further discussion Mr. Musich said,
The following exchange subsequently ensued:
THE COURT: Well, I don't think he wants to do that [proceed pro se]. I think he would rather have you than nobody. He just wants another lawyer, but I can't get him another lawyer.
Going to have to proceed with the one you got, but I said I will welcome anybody else if you want to bring them in here, any additional attorneys.
There was further discussion about the securing of another lawyer by movant's father, after which the court told movant:
[H]e can go talk to her, [the other attorney,] and if she will come in and help, Mike, I will welcome her.
That is up to your father, to go talk to her. Otherwise, I will have to proceed with the trial. I will leave Mike in the case, and if you want to ask any questions or do anything, I will listen to you in the trial, too, but we're going to have to proceed with the trial ...
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