Frazier v. State, 15015

• Decision Date: 09 October 1987
• Docket Number: No. 15015,15015
• Citation: 738 S.W.2d 131
• Parties: David Thomas FRAZIER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 131

738 S.W.2d 131

David Thomas FRAZIER, Appellant, v. STATE of Missouri, Respondent.

No. 15015.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 9, 1987.

Seth G. Gausnell, Benton, for appellant.

William L. Webster, Atty. Gen., Byrona J. Kincanon, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Chief Judge.

David Thomas Frazier ("movant") appeals from a judgment denying his first amended motion per Rule 27.26, Missouri Rules of Criminal Procedure (17th ed. 1986), to vacate his conviction of murder in the first degree, for which he was sentenced to life imprisonment. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Frazier, 587 S.W.2d 368 (Mo.App.1979).

The sole ground relied on by movant in the amended motion was that he received ineffective assistance of counsel at the jury trial. As explained more fully infra, movant's original motion to vacate, filed pro se, purported to allege five instances where counsel, henceforth referred to as "R______," had been derelict. The amended motion to vacate, filed by an assistant public defender appointed to represent movant in the 27.26 proceeding, adopted by reference every allegation in movant's pro se motion and added other allegations of ineffective assistance.

The amended motion to vacate was denied by the circuit court, henceforth referred to as "the motion court," without an evidentiary hearing. The motion court's "Findings of Facts and Conclusions of Law" consisted of one paragraph. It read:

"After examination of the [movant's] Motion 27.26 the Court finds that the [movant] in paragraph 9 does not state facts which would allow relief for the [movant] pursuant to Rule 27.26. Alleged errors in the case as to questions of law have already gone to the Appeals Court and said appeal has been denied. This Court has no way to measure enthusiasm as requested by the [movant], and therefore, deny the [movant's] motion filed under 27.26."

The first of the two assignments of error briefed by movant avers that the motion court erred in denying the amended motion without an evidentiary hearing. According to movant, the amended motion pled facts which, if true, would entitle him to relief, and the records before the motion court did not conclusively show that movant was not entitled to relief.

In considering the point, we are mindful that our review is limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Medley v. State, 639 S.W.2d 401, 403 (Mo.App.1982); Montgomery v. State, 631 S.W.2d 671, 672 (Mo.App.1982); Rule 27.26(j).

We are also aware that the Supreme Court of Missouri has held that in order to prevail on a claim of ineffective assistance of counsel, a prisoner in a 27.26 proceeding must show that his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would have exercised under similar circumstances, and that the prisoner was prejudiced thereby. Seales v. State, 580 S.W.2d 733, 735-37 (Mo. banc 1979).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), decided after Seales, the Supreme Court of the United States held that the proper standard for attorney performance in a criminal case is that of reasonably effective assistance, and that when a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. 466 U.S. at 687-88, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693. However, added the Court, an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment if the error had no effect on the judgment. 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 696. Thus, said the Court, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

In State v. Chandler, 698 S.W.2d 844, 848 n. 10 (Mo. banc 1985), decided after Strickland, the Supreme Court of Missouri discerned no significant difference between the test in Seales and the test in Strickland. Accordingly, we shall assume that Seales and Strickland are consentient.

To be entitled to an evidentiary hearing on the issue of ineffectiveness of counsel, a prisoner seeking post-conviction relief must plead facts, not conclusions, which if true would warrant relief; those facts must not be refuted by the record; and the matters complained of must have resulted in prejudice to the prisoner. Mannon v. State, 727 S.W.2d 936, 938 (Mo.App.1987); Baker v. State, 680 S.W.2d 278, 281 (Mo.App.1984); Merritt v. State, 650 S.W.2d 21, 22-23 (Mo.App.1983).

Guided by the above principles, we shall first examine each allegation of the pro se motion to determine whether such allegation warranted an evidentiary hearing. For convenience, we shall assign each allegation a number. We set forth each allegation exactly as movant penned it.

Allegation 1: "Movant will testify that his attorney failed to represent him properly and was ineffective due to the fact that movants attorney had previously withdrawn from defending movant and that when movant proceeded with his trial his attorney failed to provide a adequate motion to supress movants statement."

This allegation assails attorney R______ in two respects. We shall consider each separately. As to the first, the record in the murder case shows that R______, who had evidently represented movant from the time of the filing of the felony complaint to the time of the filing of the information, was relieved of that assignment at the time of movant's arraignment, and that simultaneously therewith the public defender was appointed to represent movant. Two weeks later, a motion by the public defender to withdraw as movant's counsel was sustained, and R______ was "reappointed" to represent movant. The jury trial occurred some four and a half months later. Allegation 1 pleads no facts showing that R______'s representation of movant at the jury trial was adversely affected by the circumstances just narrated.

The Supreme Court of Missouri has consistently held that a motion to vacate under Rule 27.26 which contains mere conclusional allegations and sets out no facts which, if true, would authorize relief does not warrant an evidentiary hearing. State v. Lillibridge, 399 S.W.2d 25, 28 (Mo.1966), cert. denied, 384 U.S. 956, 86 S.Ct. 1579, 16 L.Ed.2d 551 (1966); State v. Statler, 383 S.W.2d 534, 537 (Mo.1964); State v. Ninemires, 306 S.W.2d 527, 530 (Mo.1957).

Applying Lillibridge, Statler and Ninemires to the first complaint in Allegation 1, we hold that such complaint required no evidentiary hearing.

The other complaint about R______ set forth in Allegation 1 is that R______ failed to file an "adequate motion" to suppress movant's statement.

Our opinion in the direct appeal explains that the trial court heard and denied a motion to suppress an incriminatory written statement made by movant to a law enforcement officer after movant's arrest. Frazier, 587 S.W.2d at 369. Our opinion recounts that movant contended he did not understand the rights read to him by the officer, and did not intelligently and knowingly waive his right to remain silent and to receive appointed counsel. Id.

It is clear from our opinion that movant testified in the trial court in support of the motion to suppress the incriminatory statement, and that the prosecution presented evidence supporting its admissibility. The trial court resolved the issue adversely to movant, and admitted the statement in evidence.

Allegation 1 pleads no facts demonstrating that the motion to suppress was not "adequate," or that R______ failed to exercise the customary skill and diligence that a reasonably competent attorney would have exercised under similar circumstances in assisting movant in regard to the motion to suppress. We therefore hold that the second complaint in Allegation 1, like the first, required no evidentiary hearing.

Allegation 2: "He furthermore failed to offer any evidence in behalf of movant and allowed certain statements from witnesses to be introduced and not strickened from the transcripts of the trial proceedings."

This allegation, like Allegation 1, consists of two charges of ineffective assistance. We shall discuss each seriatim.

The first complaint is that R______ failed to offer any evidence on behalf of movant.

In Davis v. State, 657 S.W.2d 677 (Mo.App.1983), a prisoner claimed his counsel had rendered ineffective assistance by failing to call a certain witness. The opinion held that in order to obtain relief on that ground, a prisoner must allege and show that the witness' testimony would have provided a defense. Id. at 678.

In Merritt, 650 S.W.2d 21, a prisoner sought post-conviction relief on the ground that his counsel was ineffective in failing to interview and call certain witnesses. The motion to vacate named the witnesses, but neglected to allege what their testimony would have been. The circuit court denied relief without an evidentiary hearing. Affirming the circuit court, the appellate court held that by failing to allege the substance of the testimony the witnesses would have given, the prisoner had failed to plead facts entitling him to an evidentiary hearing. Id. at 23.

The first complaint in Allegation 2 fails to identify the evidence or witnesses that R______ should have presented, it fails to allege that such evidence or witnesses were available, and it fails to describe what such evidence or witnesses would have shown. Applying Davis and Merritt, we hold that the first complaint of Allegation 2 pled no facts warranting an evidentiary hearing.

We reach the same result with...