Franklin v. State

• Decision Date: 24 May 1983
• Docket Number: No. 45168,45168
• Citation: 655 S.W.2d 561
• Parties: Clifton FRANKLIN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 561

655 S.W.2d 561

Clifton FRANKLIN, Appellant, v. STATE of Missouri, Respondent.

No. 45168.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 24, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 15, 1983.

Application to Transfer Denied

Sept. 20, 1983.

David V. Uthoff, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.

PUDLOWSKI, Presiding Judge.

A two count indictment charged movant with capital murder and robbery first degree. A jury found movant guilty of murder first degree and robbery first degree by means of a dangerous and deadly weapon. §§ 559.007, 560.120 and 560.135 RSMo Supp.1975. He was sentenced to life imprisonment for the murder and twenty-five years on the robbery first degree to run concurrently. This court affirmed his conviction on direct appeal. State v. Franklin, 591 S.W.2d 12 (Mo.App.1979). We judicially notice the transcript of that appeal. Evans v. State of Missouri, 639 S.W.2d 648, 649 (Mo.App.1982).

Movant sought in the trial court to vacate the sentence pursuant to Rule 27.26 on the ground of ineffective assistance of counsel. Movant appeals from the trial court's denial of his Rule 27.26 motion after an evidentiary hearing. We affirm.

On appeal movant claims the following as trial court errors: 1) movant presented sufficient evidence that he was denied effective assistance of counsel at his murder trial because a) his attorney's failures and omissions caused him to be tried and convicted of felony murder, a charge not made in the indictment; b) his attorney failed to conduct independent pre-trial investigation of prosecution witnesses; c) his attorney did not investigate potential alibi witnesses; d) his attorney failed to file a motion to suppress identification evidence; e) his attorney failed to subpoena or introduce certain potentially favorable evidence; and 2) movant was entitled to an evidentiary hearing on the issue of ineffective representation by his counsel because his attorney's dual representation of movant and co-defendant created a potential conflict of interest.

At the onset, we iterate that appellate review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Phillips v. State, 639 S.W.2d 270, 272 (Mo.App.1982); Rule 27.26(j).

Movant claims first that his trial counsel was ineffective because counsel failed to object to the indictment as defective. Movant argues the indictment was defective in failing to give him sufficient notice of the charges against him when he was indicted, in addition to robbery first degree, for capital murder but tried on and convicted of first degree felony murder. He theorizes the lower court lacked jurisdiction because the charge of capital murder in the indictment failed to put him on notice for the crime of first degree felony murder so that his conviction is a nullity.

Movant did not raise this contention at trial or on direct appeal. However, the sufficiency of the indictment is jurisdictional and thus may be raised for the first time in a Rule 27.26 proceeding. We review the indictment with the understanding that a collateral attack can be made in this proceeding only if the indictment is so obviously defective that by no reasonable construction can it be said to charge the offense for which movant was convicted. Blackmon v. State, 639 S.W.2d 127, 128 (Mo.App.1982). As said in State v. Garrett 627 S.W.2d 635, 637 (Mo. banc 1982), citing State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1981):

The test of the sufficiency of an indictment is whether it contains all the essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense in order to enable him to meet the charge and to bar further prosecution.

Count I of movant's indictment filed November 29, 1977, charges: "That CLIFTON FRANKLIN, ACTING WITH ANOTHER, at the City of St. Louis aforesaid, on the 28th day of May, 1976, feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought did make an assault upon one FREDERICK D. WILLIAMS with a loaded pistol, and then and there, ... did discharge said pistol at and upon the body of the said FREDERICK D. WILLIAMS, thereby feloniously inflicting a mortal wound upon the said FREDERICK D. WILLIAMS, from which said mortal wound FREDERICK D. WILLIAMS, did die on May 30, 1976; contrary to Sections 559.007, 559.009(3), Missouri Revised Statutes." ¹

There is no showing that movant was not on notice of the impending first degree felony murder charge. The circumstances of this case cement our position. Before the trial, movant filed a motion to dismiss the indictment on speedy trial grounds; the motion averred that he was awaiting trial on murder first degree. At trial, both the prosecutor and movant's attorney proceeded as if movant were charged with the offense of murder first degree. The jury was given instructions for first degree murder, second degree murder, and manslaughter on Count I. No instruction for capital murder was requested or submitted. ² Finally, at the post conviction relief evidentiary hearing, movant testified he told his trial attorney when they first met that he understood that a warrant charging him with first degree murder and robbery had been issued. In light of the foregoing, movant's claim that he was without notice of the first degree murder charge is spurious. The trial court's finding that movant was not denied effective assistance of counsel because of his attorney's failure to challenge the indictment was not clearly erroneous. We have no doubt that movant was advised of, and understood, the nature of the offenses with which he stood charged. We find no violation of due process and no prejudice to the substantial rights of the movant.

Movant also maintains submitting the case on a first degree felony murder theory was error where he was charged with capital murder because the statutory elements of capital murder did not include all the legal elements of murder in the first degree, and murder in the first degree was not specifically a lesser included offense of capital murder. ³ Despite movant's contention that murder in the first degree was not a lesser included offense of capital murder, the failure to instruct on murder in the first degree where the evidence supports the submission of murder in the first degree is reversible error. State v. Daugherty, 631 S.W.2d 637, 645 (Mo.1982); State v. Gardner, 618 S.W.2d 40 (Mo.1981); See also State v. Wilkerson, 616 S.W.2d 829 (Mo. banc 1981). We hold that the evidence upon the record amply supported the submission of murder in the first degree. ⁴ An instruction on murder in the first degree would have been required in this case had the capital murder theory been tried and submitted. Movant cannot complain that to try the case on a felony murder theory, in lieu of a capital murder, and to submit a felony murder instruction were prejudicial to him. We find the authority of State v. Daugherty, 631 S.W.2d 637 (Mo.1982) to be controlling. As in the case at bar, the defendant in Daugherty was charged with capital murder, the jury was instructed, inter alia, on first degree felony murder, and defendant was convicted of first degree felony murder.

Movant also claims his counsel was ineffective because his attorney failed to conduct an independent pre-trial investigation of prosecution witnesses, failed to investigate potential alibi witnesses, failed to file a motion to suppress identification evidence, and failed to subpoena certain evidence potentially favorable to movant. In order to prove ineffective assistance of counsel, movant had to show that his attorney did not conduct himself with the ability and care of a reasonably capable attorney acting under comparable conditions and that movant was prejudiced thereby. State v. Thomas, 625 S.W.2d 115, 123 (Mo.1981); Decker v. State, 623 S.W.2d 563, 565 (Mo.App.1981). The claim that an attorney's investigation of a case is inadequate must allege what specific information the attorney failed to discover, that reasonable investigation would have disclosed that information, and that the information would have aided or improved defendant's position. Williams v. State, 650 S.W.2d 17 (E.D.Mo.App.1983); Greenshaw v. State, 627 S.W.2d 103, 105-6 (Mo.App.1982).

Police reports indicated Helen Stokes, a state's witness, had viewed a lineup and identified a person other than movant as the person responsible for the murder and robbery and as the gunman. Movant was not in the lineup. Movant complains of his attorney's failure to call her to negate or discredit the testimony of Arthur Johnson, the robbery victim, who testified and identified movant at trial as the gunman. Another prosecution witness Melissa Schmidt, who had viewed the same lineup as Helen Stokes and tentatively identified a person other than defendant as the perpetrator, testified at trial that she did not recognize the movant in the courtroom and that she had never seen him before the date of the trial. Since it must be remembered that the jury had already resolved the inconsistencies in the testimony of Arthur Johnson, the robbery victim, with the testimony of Melissa Schmidt, against movant, the testimony of Helen Stokes was merely cumulative. Her statements referred only to impeachment of the robbery victim; they do not exonerate movant nor do they go to his innocence, in light of the testimony of Arthur Johnson. The selection of witnesses, like the introduction of evidence, is a question of trial strategy and the mere choice of trial strategy is not a foundation for finding ineffective assistance of counsel. Decker v. State, 623 S.W.2d 563, 565 (Mo.App.1981).

Movant complains of his attorney's failure to subpoena testimony concerning a gun residue test which he...