Fitzpatrick v. State, KCD

• Decision Date: 26 February 1979
• Docket Number: No. KCD,KCD
• Citation: 578 S.W.2d 339
• Parties: Billy Edward FITZPATRICK, Appellant, v. STATE of Missouri, Respondent. 29859. .
• Court: Missouri Court of Appeals

Page 339

578 S.W.2d 339

Billy Edward FITZPATRICK, Appellant, v. STATE of Missouri, Respondent.

No. KCD 29859.

Missouri Court of Appeals, Western District. .

Feb. 26, 1979.

Denise V. Phillips, Columbia, for appellant.

Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., and SWOFFORD, C. J., and WASSERSTROM, J.

PER CURIAM:

This appeal is from the order of the trial court denying relief to appellant on his Rule 27.26 motion. Supporting his claim to post trial relief, appellant contended trial counsel was ineffective in (a) failing to supply appropriate advice and information on opportunities for change of venue; (b) adversely affecting appellant's cause by the conduct of voir dire and in closing argument, and; (c) failing to preserve for appellate review alleged error in closing argument by counsel for the state.

Appellant was convicted by a jury of the offense of rape and was sentenced to a term of thirty years. The judgment and sentence were affirmed by this court on direct appeal. State v. Fitzpatrick, 525 S.W.2d 342 (Mo.App.1975). The trial court's ruling on the subsequent motion for post conviction relief followed appointment of counsel and an evidentiary hearing and included extensive findings of fact and conclusions of law. Upon this review, the appellate court is limited to a determination of whether the findings, conclusion and judgment of the trial court are clearly erroneous. Rule 27.26(j). The result may not be regarded as clearly erroneous unless the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Crosswhite v. State, 426 S.W.2d 67 (Mo.1968).

The burden is on appellant who seeks relief on grounds of ineffective assistance of counsel "to establish a serious dereliction of duty on the part of his counsel which materially affected his substantial rights * * * The dereliction should be of such grave nature as to obviously result in a miscarriage of justice". Cole v. State, 553 S.W.2d 877, 882 (Mo.App.1977).

In the subject case, the record demonstrates that the opportunity to seek a different trial forum was discussed between appellant and his trial counsel and the decision not to seek removal from the known circumstances prevailing in Boone County to the unknown circumstances in a different circuit was a matter of trial strategy. A tactical decision by counsel not to seek a change of venue is not a subject for hindsight and does not demonstrate incompetency of counsel, unless manifestly wrong. Beeman v. State, 502 S.W.2d 254 (Mo.1973). Appellant's first point is not supported in the record by a significant factual basis and, further, involves a decision on trial strategy which was a value judgment not now available for retrospective reevaluation on a charge of ineffective counsel.

Appellant next directs attention to segments of the voir dire and to closing argument both by appellant's counsel and counsel for the state. He complains of voir dire reference to published accounts of other crimes and the effect upon the ability of prospective jurors to remain unprejudiced and objective.

The examination of the jury panel by defense counsel was obligatory by reason of current newspaper publicity on crimes similar in nature to the offense with which appellant was...