Cummings v. State
Citation | 535 S.W.3d 410 |
Decision Date | 13 December 2017 |
Docket Number | No. SD 34574,SD 34574 |
Parties | Robert D. CUMMINGS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
Court | Court of Appeal of Missouri (US) |
Attorney for Appellant—Scott Thompson of St. Louis, MO.
Attorneys for Respondent—Joshua D. Hawley (Attorney General) and Daniel N. McPherson of Jefferson City, MO.
Robert D. Cummings ("Movant") appeals from the motion court's denial, after an evidentiary hearing, of his motion for post-conviction relief under Rule 29.15.1 Movant appeals asserting that the motion court clearly erred in denying his claims that (1) appellate counsel failed to claim that testimony of a witness was cumulative and improper bolstering, (2) the motion court failed to make findings on trial counsel's alleged failure to object properly to testimony, and (3) trial counsel was ineffective for failing to request relief under the speedy trial act. The claims have no merit; the judgment is affirmed.
Hoeber v. State , 488 S.W.3d 648, 653, 655, 659 (Mo. banc 2016). In addition:
"To prevail on a claim of ineffective assistance of appellate counsel, the movant must establish that counsel failed to raise a claim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it." [Mallow , 439 S.W.3d at] 770 (internal quotation omitted). "There is no duty to raise every possible issue asserted in the motion for new trial on appeal, and no duty to present non-frivolous issues where appellate counsel strategically decides to winnow out arguments in favor of other arguments." Storey v. State , 175 S.W.3d 116, 148 (Mo. banc 2005) (internal quotation omitted).
Tisius v. State , 519 S.W.3d 413, 431-32 (Mo. banc 2017). Further, appellate counsel cannot be ineffective for failing to raise on appeal an issue that would not have been meritorious. Id. at 432.
Although difficult to interpret, Movant's first point appears to be that appellate counsel was ineffective because counsel failed to claim on direct appeal that a detective's testimony about the speed with which three witnesses identified Movant in a photo lineup and the certainty of these witnesses in their identifications was "cumulative and improper bolstering."2 Three witnesses identified Movant in a photo line-up. Following their testimony, a detective testified that each of the identifications took less than ten seconds and that the identifier did not express any uncertainty. Trial counsel objected that the testimony was cumulative and also, for two of the identifiers, that it was "improper bolstering." In its judgment, the motion court denied Movant's claim that appellate counsel was ineffective in choosing not to raise the issue because (1) that claim would not have been meritorious," and (2) that Movant "cannot and did not show any evidence that an appellate reversal would have been reasonably likely to occur by the raising of a non-meritorious issue."
Appellate counsel was not ineffective because this type of testimony from an individual who observed the identification process long has been admissible where the individual and the person who made the identification both testify and are subject to cross examination.
Olds v. State , 891 S.W.2d 486, 489 (Mo.App. E.D. 1994) ; see also State v. Kidd , 990 S.W.2d 175, 180 (Mo.App. W.D. 1999) ( ).
Testimony subject to this rule may be excluded if is "unduly cumulative." Kidd , 990 S.W.2d at 180.
"Evidence is said to be cumulative when it relates to a matter so ‘fully and properly proved by other testimony’ as to take it out of the area of serious dispute." State v. McCauley , 831 S.W.2d 741, 743 (Mo.App.1992) (quoting State v. Weatherspoon , 728 S.W.2d 267, 273 (Mo.App.1987) ). The control of cumulative evidence is committed to the discretion of the trial court. State v. Wade , 926 S.W.2d 43, 45 (Mo.App.1996). We defer to the trial court in the absence of an abuse of discretion. Id. Additionally, "evidence is not to be rejected as cumulative when it goes to the very root of the matter in controversy or relates to the main issue, the decision of which turns on the weight of the evidence." State v. Perry , 879 S.W.2d 609, 613 (Mo.App.1994). "The state, especially in view of its heavy burden, should not be unduly limited in the amount of evidence it adduces, even if cumulative." State v. Welty , 729 S.W.2d 594, 600 (Mo.App.1987).
Id. ; see also Black v. State 151 S.W.3d 49, 56-57 (Mo. banc 2004) (similar statement of the rule).
In this case, an important fact in dispute at trial was the identity of the person who shot the victims. The detective's testimony about the speed with which three witnesses identified Movant in a photo lineup and the certainty of these witnesses in their identifications directly related to the disputed identity of the shooter—one of the main issues in the case that turned on the weight of the evidence. Appellate counsel was not ineffective for failing to raise a non-meritorious issue on appeal. Movant's first point is denied.
Movant asserts, in a separate second point, that the motion court "made no specific findings as [to] trial counsels' alleged deficiencies [in failing to object properly to Detective Crum's testimony about three witnesses' out-of-court identifications in a photo lineup]," and "remand is at least required for findings." We disagree.
White v. State , 57 S.W.3d 341, 343 (Mo.App. E.D. 2001) ; see also Green v. State , 494 S.W.3d 525, 529 n.3 (Mo. banc 2016) (superseded by rule on...
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