Cole v. State

• Decision Date: 09 February 2010
• Docket Number: No. ED 92649.,ED 92649.
• Citation: Cole v. State, 302 S.W.3d 812 (Mo. App. 2010)
• Parties: Megal COLE, Movant/Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

302 S.W.3d 812

Megal COLE, Movant/Appellant, v. STATE of Missouri, Respondent.

No. ED 92649.

Missouri Court of Appeals, Eastern District, Division Four.

February 9, 2010.

Jessica M. Hathaway, St. Louis, MO, for appellant.

Chris Koster, John W. Grantham, Jefferson City, MO, for respondents.

GARY M. GAERTNER, JR., Judge.

Introduction

Megal Cole (Movant) appeals from the motion court's judgment denying, without an evidentiary hearing, his Amended Motion under Rule 29.15 to Vacate, Set Aside or Correct Judgment and Sentence and Request for Evidentiary Hearing (Amended Motion).¹ We affirm.

Factual and Procedural Background

A jury convicted Movant of one count of burglary in the first degree and one count of stealing a motor vehicle. Movant's convictions were affirmed on appeal to this Court. State v. Cole, 238 S.W.3d 684 (Mo. App. E.D.2007). Movant timely filed his pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence, and through appointed counsel, his Amended Motion under Rule 29.15.

In his Amended Motion, Movant claimed, as relevant to his points on appeal, that he was denied his right to testify, right to present a complete defense, right to due process, right to a fair trial and right to effective assistance of counsel, in that his trial counsel unreasonably refused to call Movant to testify at trial in his defense.

Movant averred that he would have testified if trial counsel had called him, and that he told his counsel he wished to do so. Movant averred his testimony would be that, after being read his rights by police officers in a correctional facility waiting room, he had told the officers he was leaving because he wanted to talk to a lawyer. He further asserted he would testify that he had never made a statement to the officers about a baby or a black SUV, about being addicted to drugs, or about burglarizing homes.

Movant also claimed in his Amended Motion that his trial counsel was ineffective for failing to object and request a mistrial when State's witnesses Bezell Lee (Lee), Carlos Boles (Boles) and Sannita Vaughn (Vaughn) testified that Movant was smoking marijuana as he drove a stolen black Lexus. Movant argued that this unchallenged evidence of uncharged crimes, i.e., illegal drug use, violated his constitutional rights to enjoy due process of law, to have effective assistance of counsel, to present a defense, to be tried only for the charged offenses, and to receive a fair trial.

The motion court denied Movant's Amended Motion without an evidentiary hearing. In its Findings of Fact and Conclusions of Law, the motion court determined Movant's allegation that trial counsel was ineffective because she refused to call Movant to testify at trial was refuted by the record, citing to pages 990-995 of the trial transcript. As to Movant's allegation that trial counsel was ineffective for failing to object to the testimony of the State's witnesses that they and Movant were smoking marijuana while Movant was driving the stolen vehicle, the motion court found that, in light of all the evidence presented, this testimony did not alter the outcome of the trial, and did not prejudice Movant.

As relevant, the following occurred at Movant's trial. During trial, the State presented the testimony of several witnesses, including Lee, Boles and Vaughn. During his testimony, Lee testified that he, Vaughn, Lee's daughter, and Boles obtained a ride in the early morning hours of January 10, 2004, in a black Lexus SUV truck driven by Movant. Lee further testified that the group did not reach their destination because they were involved in an accident. When asked to describe what happened, Lee stated that after Movant began coughing and choking, the truck veered off the road, went airborne, and crashed into a house. When asked why Movant was coughing, Lee responded, "Probably was the weed we smoked, because I let my window down because my daughter was in there cause we smoking the weed." Boles and Vaughn similarly testified.

The State also presented the testimony of two Ladue police officers, Christopher Schmitz (Detective Schmitz) and Bryan Lucas (Detective Lucas). Detective Schmitz testified that after he and Detective Lucas introduced themselves to Movant in an attempt to interview him, Movant stood up and pronounced he did not have anything to say. Detective Schmitz testified that Movant started to walk away, stopped, turned back toward the officers, and said, "I do have one thing to say ... I didn't mean to hurt that baby." Detective Schmitz said he then read Movant his rights. Thereafter, Movant told the officers that he had been in Ladue almost every night, going through unlocked cars and garages looking for "cash and things," and he remembered taking from a Ladue garage a black SUV with keys in it. Detective Lucas's testimony was substantially the same as Detective Schmitz's.

At the close of the State's evidence, the court instructed Movant's counsel to finalize her discussions with Movant regarding his decision to testify. After allowing Movant time to discuss the matter with his counsel, the following inquiry took place in open court outside the presence of the jury:

[Court]: We're back in session. All right, we'll be on the record.

[Movant], I understand that you had an opportunity to discuss with your attorney whether or not you want to testify or not testify in this case; is that correct?

[Trial Counsel]: Your Honor, [Movant] has indicated that the answer to that question is no.

[Court]: I'm sorry. The what?

[Trial Counsel]: That he wishes that I speak for him and the answer to that question is no. That's what he's indicated to me right now.

[Court]: Okay. And [Movant], do you understand that if you choose not to testify that that's your decision alone to make, nobody else can make that decision for you, you can talk to your attorney, your attorney can give you advice, but do you understand that you alone are the one that decides whether or not you'll testify or not testify?

[Trial Counsel]: [Movant] indicates that he fully understands.

[Court]: All right. And do you also understand that if you choose not to testify that neither [the State] nor I could say anything to the jury about your not testifying?

[Trial Counsel]: [Movant] indicates that he fully understands.

[Court]: All right. Okay. The Court will note for the record that the Court was addressing the questions to [Movant] and [Movant] chose, as he certainly can do, chose to answer these questions by stating the answer to the — his attorney and having his attorney repeat the answer to me.

All right, we'll be in recess for a few minutes while we bring the jury in, and we'll let them know the evidence has been completed.

This appeal follows the motion court's denial of Movant's Amended Motion.

Points on Appeal

In his first point on appeal, Movant claims the motion court clearly erred in denying his motion for post-conviction relief under Rule 29.15 without a hearing because the record did not conclusively refute Movant's post-conviction claim that counsel refused to allow him to testify at trial, in that Movant was not voir dired on his right to testify; thus, Movant alleged unrefuted facts that, if proven, would entitle him to relief. Movant argues he was prejudiced because he did not have the opportunity to exercise his constitutional right to testify in his own defense, and there is a reasonable probability the outcome of trial would have been different had he testified. He further argues this error violated his rights to testify, to present a complete defense, to due process, to a fair trial and effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 18(a) of the Missouri Constitution.

In his second point, Movant claims the motion court clearly erred in denying his motion for post-conviction relief under Rule 29.15 without a hearing because the record did not conclusively refute Movant's post-conviction claim that counsel was ineffective for failing to object to irrelevant evidence of illegal drug use, in that the record does not reflect reasonable trial strategy, and Movant alleged facts that, if proven, would entitle him to relief. Movant asserts there is a reasonable likelihood that the outcome of the trial would have been different had counsel objected to this irrelevant, prejudicial evidence and the failure to do so violated his rights to due process of law and effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 10, 17, 18(a) of the Missouri Constitution.

Standard of Review

To obtain an evidentiary hearing under Rule 29.15, a movant must allege facts, not refuted by the record, showing that counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and that the movant was thereby prejudiced. Kuhlenberg v. State, 54 S.W.3d 705, 707 (Mo.App. E.D.2001).

Our review of the denial of a Rule 29.15 motion is "limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous." Rule 29.15(k); Kuhlenberg, 54 S.W.3d at 707. We will determine that a motion court's findings and conclusions are clearly erroneous only if, having reviewed the entire record, we firmly believe a mistake was made. Kuhlenberg, 54 S.W.3d at 707.

Discussion

Point I

In his first point, Movant claims that the motion court clearly erred in denying his motion for post-conviction relief under Rule 29.15 without a hearing because the record did not conclusively refute Movant's post-conviction claim that counsel refused to allow him to testify at trial, in that Movant was not voir dired on his right to testify; thus, Movant alleged unrefuted facts that, if proven would entitle him to relief. Movant argues he was prejudiced because he did not have the opportunity to exercise...