Cooper v. State, 16167
| Decision Date | 25 October 1989 |
| Docket Number | No. 16167,16167 |
| Citation | 779 S.W.2d 721 |
| Parties | Russell E. COOPER, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Charles D. Moreland, Rolla, for movant-appellant.
William L. Webster, Atty. Gen., Ronald L. Jurgeson, Asst. Atty. Gen., Jefferson City, for respondent.
Russell E. Cooper appeals from the denial after evidentiary hearing of his Rule 29.15 1 motion to vacate his conviction of the crime of forcible rape, § 566.030, for which he received a sentence of 20 years' imprisonment. After Cooper was incarcerated, he filed a pro se motion to vacate his sentence, which motion, after amendment by court-appointed counsel, alleged that Cooper was denied effective assistance of trial counsel because counsel (1) failed to request a change of venue from the county where the rape charge was filed, (2) failed to record the preliminary hearing which, if done, would have revealed material inconsistencies in the testimony of the complaining witness in that her testimony on the issue of consent was different at the preliminary hearing than it was at trial, (3) failed to request a mistrial when it was discovered that two jurors were sleeping during the trial, (4) failed to object when the prosecutor, during the rebuttal portion of his closing argument, made a specific plea for a lengthy sentence when he had not done so in the opening portion of his closing argument, and (5) failed to request that Cooper's direct appeal be transferred to the Missouri Supreme Court after his conviction was affirmed by this court in State v. Cooper, 673 S.W.2d 848 (Mo.App.1984). Based on these factual allegations an evidentiary hearing was held, following which the motion court made written findings of fact and conclusions of law, and denied the motion to vacate. This appeal followed. We affirm.
Our review is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(j). The only witnesses at the evidentiary hearing were Cooper and his trial counsel. Their recollection of what had and had not occurred at the trial, in relation to the complaints raised in the motion to vacate, differed in every material respect. The motion court, as it had a right to do, accepted trial counsel's version, stating that Cooper, a 19 year-old man convicted of forcibly raping a 63 year-old woman, had an "obvious self-interest" and rejected his testimony. Jones v. State, 598 S.W.2d 595, 597 (Mo.App.1980). Since Cooper's testimony stands rejected, the only credible evidence before us is the testimony of his trial counsel and the written record of the proceedings.
Cooper's first point alleges he had ineffective assistance of trial counsel because his lawyer failed to request a change of venue. Cooper's trial attorney testified that he had discussed the possibility of a change of venue with Cooper, and had prepared a motion to that effect, but Cooper rejected the idea. Counsel testified that Cooper thought that since the complaining witness had a poor reputation in Phelps County, where the charge was filed, a jury there would be more likely to accept his story that there was no rape, but rather sexual intercourse by consent. The motion court accepted counsel's explanation, and also observed that, even assuming Cooper did request his attorney to seek a change of venue, the decision of the lawyer not to do so did not show incompetency since Cooper had not shown that such a decision was manifestly wrong, citing Fitzpatrick v. State, 578 S.W.2d 339, 340 (Mo.App.1979). See also Mitchell v. State, 747 S.W.2d 234, 236 (Mo.App.1988). Those findings and conclusions are supported by the record and are not clearly erroneous.
Cooper next claims that his trial lawyer was ineffective in not having the preliminary hearing recorded and a transcript made because the complaining witness' testimony at the preliminary hearing contained admissions that confirmed that the sexual intercourse was consensual. This was disputed by trial counsel who testified that there was no material difference between the complaining witness' trial testimony and her testimony at the preliminary hearing, and that he saw no reason to have the preliminary hearing recorded unless the defendant requested that it be done, and that Cooper did not do so. Here again, the motion court chose to believe the lawyer and not Cooper, and concluded that Cooper failed in his burden of proof on the point raised. The findings and...
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