Crews v. State

• Decision Date: 30 November 1999
• Citation: 7 S.W.3d 563
• Parties: (Mo.App. E.D. 1999) . Richard Crews, Movant/Appellant, v. State of Missouri, Respondent. Case Number: ED75794 Missouri Court of Appeals Eastern District Handdown Date:
• Court: Missouri Court of Appeals

7 S.W.3d 563 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Richard Crews, Movant/Appellant, v. State of Missouri, Respondent.

Case Number: ED75794

Missouri Court of Appeals Eastern District

Handdown Date: 11/30/99

Appeal From: Circuit Court of St. Charles County, Hon. Grace Munson Nichols

Counsel for Appellant: Jennifer S. Walsh

Counsel for Respondent: John M. Morris, III, and Catherine Chatman

Opinion Summary: Richard Crews appeals the denial of his Rule 29.15 motion for postconviction relief without an evidentiary hearing. He contends the motion court erred in denying his postconviction motion without an evidentiary hearing because his allegation that trial counsel failed to thoroughly cross-examine and impeach a witness with prior inconsistent statements entitles him to an evidentiary hearing. He further asserts the motion court erred in failing to issue findings of fact and conclusions of law on all allegations contained in the amended motion, thereby depriving him of the opportunity for meaningful appellate review.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Division Two holds: (1) The motion court's findings of fact and conclusions of law as to the allegation that trial counsel was ineffective for failing to thoroughly cross-examine and impeach a witness with prior inconsistent statements are not clearly erroneous. Counsel did cross-examine the witness. Crews failed to show prejudice as the trial's outcome would have been no different. (2) The motion court failed to make findings of fact and conclusions of law as to three other allegations in Crews' amended motion. Rule 29.15(j) requires the motion court to make findings of fact and conclusions of law on all issues presented in the postconviction relief motion. Therefore, the order of the motion court is reversed and remanded to make findings of fact and conclusions of law on the three allegations.

Opinion Author: Robert G. Dowd, Jr., Judge

Opinion Vote: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Crane, P.J., and Sullivan, J., concur.

Opinion:

Richard Crews (Movant) appeals the denial of his Rule 29.15 motion for postconviction relief without an evidentiary hearing. Movant contends the motion court erred in denying his postconviction motion without an evidentiary hearing because, taken as true, his allegation that trial counsel failed to thoroughly cross-examine and impeach a witness with prior inconsistent statements entitles him to an evidentiary hearing. Movant further asserts the motion court erred in failing to issue findings of fact and conclusions of law on all allegations contained in the amended motion, thereby depriving him of the opportunity for meaningful appellate review. We affirm in part and reverse and remand in part.

A jury convicted Movant of one count of burglary in the first degree, Section 569.160, RSMo 1994, and one count of felony stealing, Section 570.030, RSMo 1994. The trial court sentenced Movant as a prior and persistent offender to ten years' imprisonment on the burglary count and a consecutive term of seven years' imprisonment on the stealing count.

The facts of the underlying convictions are as follows. On the evening of October 13, 1994, Mr. and Mrs. Koehler returned to their house in Windsong Court Subdivision in O'Fallon, Missouri. The Koehlers noticed that their 1985 GMC Sierra Classic was missing from their garage. As Mrs. Koehler called the police, Mr. Koehler went inside the house and noticed someone had broken into the house. Mr. Koehler examined the house and noticed several items missing, including a loaded .22 caliber rifle. The following day, Courtney Hammonds and Diondrey Hardwick were arrested for driving the Koehlers' stolen car. Hammonds and Hardwick stated that they received the car from a man nicknamed "Cowboy" and his wife in exchange for a piece of cocaine. Both Hammonds and Hardwick identified Movant in a photo line-up as the man who gave them the car in exchange for the cocaine. The O'Fallon police searched Movant's residence and found several items that were taken from the Koehler's home during the burglary. Movant's brother-in-law later found the .22 caliber rifle that was stolen from the Koehlers' home in Movant's residence and turned the rifle over to the O'Fallon police. After a trial, the jury returned guilty verdicts on first-degree burglary and felonious stealing.

On direct appeal, we affirmed Movant's convictions and sentences. State v. Crews, 968 S.W.2d 763 (Mo. App. E.D. 1998). Afterward, Movant filed a timely pro se motion pursuant to Rule 29.15. Thereafter, his appointed counsel filed an amended motion and request for evidentiary hearing. The motion court entered findings of fact and conclusions of law denying postconviction relief without an evidentiary hearing. This appeal follows.

In his first point, Movant contends the motion court clearly erred in denying his Rule 29.15 motion without an evidentiary hearing because, taken as true, Movant's allegation "that trial counsel's failure to thoroughly cross-examine Detective Rick Morell with prior inconsistent statements made by Morell regarding his knowledge of the pregnancy of [Movant's] wife and also regarding Morell's knowledge that [Movant] did not run an escort service, was not refuted by the record, stated facts, not conclusions, resulted in prejudice to him and entitled him to relief." We disagree.

Appellate review of the denial of a postconviction motion is limited to the determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); State v. Cosby, 976 S.W.2d 464, 468 (Mo. App. E.D. 1998). Findings and conclusions are clearly erroneous only if, after a review of the entire record, the reviewing court is left with the definite and firm impression that a mistake has been made. Cosby, 976 S.W.2d at 468.

To establish a violation of his right to effective assistance of counsel, Movant must establish by a preponderance of the evidence that (1) counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) Movant was prejudiced by the ineffective assistance of counsel. State v. Hall, 982 S.W.2d 675, 680 (Mo. 1998) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To prove prejudice, Movant must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id.

To be entitled to an evidentiary hearing, Movant must have alleged facts, not conclusions, which if true would warrant relief; the allegations must not be refuted by the record; and the matters complained of must have prejudiced Movant. State v. Brooks, 960 S.W.2d 479, 497 (Mo. 1997). A hearing is not required if the motion, files and record of the case conclusively show that movant was not entitled to relief. Rule 29.15(h).

The motion court, in its conclusions of law, found Movant's allegations did not rebut the presumption that counsel is competent. Further, the motion court found the cross-examination of Detective Morell to be within counsel's trial strategy. We cannot say that the motion court's findings of fact and conclusions of law are clearly erroneous. The manner in which cross-examination is conducted, and the extent of cross-examination, are almost always matters of trial strategy best left to the judgment of trial counsel. State v. Colbert, 949 S.W.2d 932, 945 (Mo. App. W.D. 1997). Further, the record refutes Movant's claim, as his trial counsel extensively questioned Detective Morell. Because Movant's trial counsel had a great deal of discretion as to the method in which he chose to conduct his cross-examination, and the record reveals no major deficiencies in his manner of doing so, we cannot convict trial counsel of error for ineffective assistance of counsel. See Id.

Moreover, Movant failed to show the prejudice. Here, the overwhelming evidence of Movant's guilt makes it reasonable for us to conclude that the outcome of the trial would not have been different. Movant was identified in a photo lineup as the man who exchanged the stolen car for cocaine. Several items taken from the Koehlers' home during the burglary were found in Movant's residence. Thus, the record would conclusively refute any claim of ineffective assistance of counsel in that prejudice could not be shown. Point denied.

In his second point, Movant argues the motion court clearly erred in denying his motion without entering findings of fact and conclusions of law on all allegations contained in the amended motion. Movant contends that Rule 29.15 requires that the motion court issue findings of fact and conclusions of law on all issues presented to allow for meaningful review.

Movant contends the order of the motion court should be reversed and remanded because the motion court failed to enter specific findings of fact and conclusions of law in regard to his claims that (1) his trial counsel failed to object or move for a mistrial after Detective Morell commented on cross-examination that Movant's explanation for how he received the stolen goods was "not the truth"; (2) his trial counsel failed to make the proper objection or move for a mistrial after the prosecutor asked a defense witness if he recalled that "the defendant and his wife lied about his drug use"; and (3) his appellate counsel failed to raise on appeal the issue of the State eliciting testimony about Movant's drug use. Here, the motion court did not enter findings of fact or conclusions of law as to these three allegations in Movant's amended motion. The motion court made no generalized findings of fact in this case. The motion court made a specific finding of fact and conclusion of law as to Movant's first allegation in his amended motion, but failed to address the remaining three allegations. In addition, the motion court made...