Fry v. State, KCD

• Decision Date: 31 December 1973
• Docket Number: No. KCD,KCD
• Citation: 504 S.W.2d 250
• Parties: William Jewell FRY, Appellant, v. STATE of Missouri, Respondent. 26257.
• Court: Missouri Court of Appeals

Page 250

504 S.W.2d 250

William Jewell FRY, Appellant, v. STATE of Missouri, Respondent.

No. KCD 26257.

Missouri Court of Appeals, Kansas City District.

Dec. 31, 1973.

Lloyd F. Dieckman, Pohlmann & Dieckman, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Before DIXON, C.J., PRITCHARD, J., and FRANK CONLEY, Special Judge.

DIXON, Chief Judge.

Appeal from an order denying a Rule 27.26, V.A.M.R., motion to vacate a conviction and twenty-year sentence for assault with intent to rob with malice aforethought. The movant claims denial of effective assistance of counsel. After an evidentiary hearing on the motion, relief was denied.

Ineffective assistance of counsel is specified as 1) failing to consult with appellant concerning the defense of the case; 2) causing appellant to testify in his own behalf and against his wishes; 3) failing to locate a critical witness for the defense; and 4) failing to apprise appellant of his rights under Chapter 552, RSMo 1969, V.A.M.S., concerning further mental examinations.

The claim that counsel did not consult with appellant concerning his defense is supported only by appellant's testimony that counsel did not spend adequate time with him in preparation for trial. Appellant also claims that without his knowledge and consent, counsel made an admission at trial of appellant's guilt in the opening statement to the jury. Counsel, in his testimony, stated that he met with appellant two or three times prior to trial, that they both discussed possible defenses in the case and that there was no doubt from the evidence that appellant was present at the scene of the alleged robbery. Furthermore, counsel testified that after these meetings with appellant, he determined that, as a matter of trial strategy, the best defense would be to attempt to prove appellant did not have the intent necessary for the crime as charged. The claim that counsel admitted guilt is unworthy of belief; counsel in opening statement admitted only defendant was present and wounded when the robbery occurred. This trial strategem is understandable since the State's proof unquestionably put defendant at the scene of an attempted armed robbery, the defendant, in fact, having been wounded when a patron of the establishment being robbed wrested a gun from appellant's accomplice and shot and seriously wounded appellant.

Relief on this point must be denied. The amount of time counsel spends with his client is not a standard for determining counsel's competency and efforts on behalf of his clients, absent any showing that more time was necessary. Babcock v. State, 485 S.W.2d 85, 89 (Mo.1972); Roulette v. State, 504 S.W.2d 331 (Mo.App., 1973); State v. Bobbitt, 465 S.W.2d 579, 581 (Mo.banc 1971); State v. Young, 488 S.W.2d 221, 223 (Mo.App.1972). Furthermore, an accused is bound by his counsel's decision as to trial strategy, unless such decision makes a mockery of the proceedings, Holbert v. State, 439 S.W.2d 507, 509 (Mo.1969).

Appellant's second contention is that appointed counsel caused him to testify in his own behalf and against his wishes, thereby opening up his testimony to impeachment because of two prior felony convictions. Appellant testified at the evidentiary hearing that he never discussed this matter with counsel prior to trial and that he told counsel that he did not want to testify. The simple answer to this contention is found in the trial transcript. It is abundantly clear from counsel's opening statement that appellant was going to testify. This prior statement of the appellant's intent gave appellant ample opportunity to object to so testifying. Appellant's attorney testified that he advised his client of the ramifications of such testimony and that appellant expressed a willingness to so testify. Moreover, counsel stated that having appellant testify in his own behalf was the best strategy he could use in establishing a proper defense for his client. Accordingly, it may not...