Fritz v. State, KCD
| Decision Date | 02 June 1975 |
| Docket Number | No. KCD,KCD |
| Parties | Leon Claude FRITZ, Appellant, v. STATE of Missouri, Respondent. 27488. |
| Court | Missouri Court of Appeals |
Willard B. Bunch, Public Defender, 16th Judicial Circuit, Henri J. Watson, Asst. Public Defender, Kansas City, for appellant.
John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.
This appeal is from a denial, after evidentiary hearing, of a Rule 27.26, V.A.M.R., motion to set aside a judgment and sentence for burglary.
The appellant contends (1) the failure of trial counsel to interview the State's witnesses deprived him of the intelligent and knowing choice between a jury trial and a plea of guilty and (2) he was prejudiced when the trial judge advised the prosecutor how to properly phrase questions to the witnesses.
At the trial of the offense, the State presented four witnesses: the burglary victim, the two police officers who had investigated the burglary and Special Agent Kelly of the United States Treasury Department, who had arrested the appellant.
At the hearing on the Rule 27.26 motion, trial counsel for appellant conceded he had interviewed neither the police officers nor the victim because he already knew what their testimony would be. Trial counsel had, prior to trial, discussed the case with Special Agent kelly; he had reviewed the statements of the police officers and Special Agent Kelly in the State file to which he had been given access by the prosecuting attorney; he had observed the scene of the crime and heard all the testimony of the witnesses for the State (except for Special Agent Kelly who did not testify) at the preliminary hearing. Counsel consulted with appellant about the case at least three times, advised him of the comparative merits of a trial or a plea and did not coerce the appellant to the trial alternative. Counsel also testified that he was not surprised at any testimony which was given by the State at the trial.
The appellant testified that he had retained the counsel (whom he now censures) for the trial of the burglary case. They consulted together three or four times and communicated effectively. They did not, however, discuss the possibility of a plea of guilty. The appellant never asked his counsel to withdraw; rather, after judgment of conviction, he retained him to pursue the appeal.
In order to support a claim of ineffective assistance of counsel under a Rule 27.26 proceeding, the movant must show that the conduct or dereliction of counsel so prejudiced him as to have deprived him of a fair trial; and it is not enough that counsel could have adopted a tactic or procedure other than that actually used. State v. Davis, 505 S.W.2d 115, 118(3) (Mo.App.1973). A movant who contends inadequate investigation by counsel has the burden of showing that a fuller investigation would have uncovered evidence which would have improved his trial position and that he was deprived of evidence of substance by such neglect to his prejudice. State v. Monteer, 506 S.W.2d 25, 28(8) (Mo.App.1974). Although the investigative techniques used by trial counsel here did not involve the direct confrontation of the State's witnesses, there was no showing that appellant was deprived of evidence otherwise available by that method nor that the defense was in any manner prejudiced.
The appellant next contends that his trial was prejudiced when the court suggested to the prosecutor that the proper phrasing for a number of questions to which objections had been sustained. The...
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