Crawford v. State, 25290.
| Decision Date | 05 June 2003 |
| Docket Number | No. 25290.,25290. |
| Citation | 105 S.W.3d 926 |
| Parties | Robert E. CRAWFORD, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Mark A. Grothoff, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea Mazza Follett, Asst. Atty. Gen., Jefferson City, for respondent.
Robert E. Crawford ("Movant") was convicted by a jury of statutory rape in the second degree and sentenced to a term of four years imprisonment within the Missouri Department of Corrections. Movant filed an amended Rule 29.151 motion, contending he was denied effective assistance of counsel because his appellate counsel failed to appeal the trial court's admission of an edited videotape of an interview with Movant when he was arrested. The motion court denied Movant's motion without an evidentiary hearing, which Movant now argues was clearly error. We affirm the motion court's denial of the motion.
The issue, as framed by Movant in his point relied on, is not whether Movant is entitled to relief, but rather, whether the motion court erred in refusing to grant Movant an evidentiary hearing on his Rule 29.15 motion. Review of a motion court's denial of a Rule 29.15 motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). A motion court's determinations will be found to be clearly erroneous only if, after reviewing the entire record, the appellate court is left with the definite impression that a mistake has been made. Hall v. State, 16 S.W.3d 582, 585 (Mo. banc 2000). In our review, we note that the motion court's findings are presumptively correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991).
Rule 29.15(h) provides: "If the court shall determine the motion and the files and records of the case conclusively show that the movant is entitled to no relief, a hearing shall not be held." In order for a movant to be entitled to an evidentiary hearing, the motion: (1) must allege facts, rather than conclusions, warranting relief; (2) the facts must raise matters not refuted by the files and records in the case; and (3) the matters raised must have resulted in prejudice to the movant. State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997). To obtain an evidentiary hearing for claims related to ineffective assistance of counsel, "the 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 movant was thereby prejudiced." Id. The motion court may properly deny the motion without an evidentiary hearing if the movant's motion fails to satisfy all of these requirements. State v. Jones, 979 S.W.2d 171, 180 (Mo. banc 1998).
Movant was charged with the statutory rape of K.R., a fifteen-year-old girl, who was Movant's neighbor. In February 1999, K.R. and Movant engaged in sexual activities on at least two occasions. Movant was arrested by Detective Darren Gallup ("Gallup") and transported to the Joplin police station. Upon arriving at the police station, Gallup took Movant to an interview room and read Movant his Miranda rights2. After Movant signed a waiver of his Miranda rights, Gallup conducted a videotaped interview with Movant in which Movant confessed to having sexual intercourse with K.R., and that his date of birth was August 24, 1949.
Prior to trial, Movant's counsel filed a motion to suppress Movant's statements to the police. Movant argued, in part, that his statements were involuntary because Movant specifically declined to give a videotaped or audiotaped statement, stated that he wanted an attorney before giving a taped statement, and believed his statements were not being taped. At the suppression hearing, Gallup testified that he read Movant his rights, Movant signed a waiver of those rights, and then agreed to talk to Gallup. According to Gallup, normally the entire interview with a suspect is not videotaped, rather, only the portion of the interview in which the suspect admits to the offense is taped. Gallup stated that after Movant admitted to having engaged in sexual intercourse with K.R., Gallup told Movant "we were going to get his statement on tape now." Gallup then left the room and turned on the video recorder. When Gallup returned to the interview room, he turned on the audiotape recorder within Movant's view.
A social service worker with the Division of Family Services, Diane White ("White"), who was present during Gallup's interview with Movant, testified at the suppression hearing that she knew the interview was being audiotaped; however, she was not aware that it was being videotaped. White further recalled Gallup stating to Movant: "I can promise you it has not been taped." Movant, who also testified at the suppression hearing, stated that he did not consent to the taping of the interview and told Gallup before the interview that he would not participate in a taped interview without an attorney present.
During the videotaped portion of the interview, the following exchange took place between Movant and Gallup:
[Movant]: What was that, what was that you said?
[Gallup]: I said go ahead Jeff.
[Movant]: Who's that?
[Gallup]: Jeff is my Sergeant outside.
[Movant]: Oh, he's, he's been taping this whole thing.
[Gallup]: Well, I can promise you he's not.
[Movant]: Well your promises don't mean nothing, you
promised me (unintelligible) if anybody ever asked her she did deny it and uh, protect me and look where I'm at now, so, I mean, promises don't me [sic] nothing.
[Gallup]: Now uh, who's promised you anything? Who's promised you anything, anybody make any promises to you?
[Movant]: No so far you could have been taping the whole thing against me from out there.
[Gallup]: Well I can tell you its not, it hasn't taped, okay? Uh, and Diane [White] hasn't made any promises to you.
[Movant]: mmm.
[Gallup]: There is no promises being made.
[Movant]: I know there isn't been no promises been made.
During the videotaped interview, Movant denied requesting an attorney at anytime after coming into contact with Gallup. Movant specifically stated: ...
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