Garrett v. State, 14719

• Decision Date: 23 March 1987
• Docket Number: No. 14719,14719
• Citation: Garrett v. State, 727 S.W.2d 171 (Mo. App. 1987)
• Parties: Billy Joe GARRETT, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 171

727 S.W.2d 171

Billy Joe GARRETT, Appellant, v. STATE of Missouri, Respondent.

No. 14719.

Missouri Court of Appeals,

Southern District,

Division One.

March 23, 1987.

Kathleen Murphy Markie, Columbia, for appellant.

William L. Webster, Atty. Gen., Timothy W. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Chief Judge.

Billy Joe Garrett appeals from a judgment denying his motion per Rule 27.26, Missouri Rules of Criminal Procedure (16th ed. 1985), to vacate his conviction of arson in the second degree, for which he was sentenced as a persistent offender to ten years' imprisonment.

This is the third time the case has reached this court. It was first here on direct appeal of the conviction. On that occasion, it was remanded to the trial court with directions to correct an error in the judgment and sentence. State v. Garrett, 642 S.W.2d 378 (Mo.App.1982). The trial court, on remand, corrected the error, and Garrett appealed anew. That appeal resulted in an affirmance of the conviction. State v. Garrett, 682 S.W.2d 153 (Mo.App.1984).

Garrett, henceforth referred to as "movant," then commenced the instant proceeding by filing a pro se motion to vacate the conviction in the circuit court, henceforth referred to as "the motion court." Counsel was appointed for movant, an amended motion to vacate was filed, and an evidentiary hearing was held. The motion court thereafter entered findings of fact, conclusions of law, and judgment denying the motion. This appeal followed.

Movant's conviction resulted from a jury trial at which he was represented by attorney W____. On this appeal, movant briefs one assignment of error, averring that he received ineffective assistance from W____. The point consists of two components, the first of which alleges that W____ was derelict in "failing to call two defense witnesses in the defense's case-in-chief, who could have impeached the testimony of the only prosecution witness placing movant at the residence he was charged with burning, which prejudiced movant's cause by unnecessarily limiting his defense to only alibi witnesses who were related to movant and preventing movant from proving another cause of the fire."

The evidence at movant's trial is synopsized in Garrett, 682 S.W.2d at 154-55, and we need not repeat it here. It is sufficient for the instant appeal to note that the structure movant was convicted of burning was a dwelling at 107 East Marshall in Charleston, owned by Albert C. Goodin. Movant resided there as a renter, along with the other members of his household: his wife, Linda, their three children, and Linda's two daughters by an earlier marriage, Tammy Lamb and Michelle Lamb.

Tammy was the key witness against movant. She testified that on the evening in question, she was baby-sitting at the residence of Charmane and Mike Rosson, across the street from 107 East Marshall. Tammy recounted that about 9:30 p.m., she looked toward 107 East Marshall and saw movant on the porch, smoking a cigarette. He then entered the house, walked through it, and came back outside. At that point, said Tammy, movant walked from the house, past the adjacent house (occupied by the landlord, Goodin), and "took off running around the corner." About five or ten minutes later, according to Tammy, 107 East Marshall "was in flames."

Tammy's cross-examination by W____ included this:

"Q Now, do you smoke cigarettes?

A No.

Q Have you ever? A No.

Q Are you sure? A Uh-huh.

....

Q Now, did you ever talk to Mike Rosson after the fire that night, Charmane's husband?

A When he come back to pick Carlena ¹--well, when they come back after the fire, yes.

Q Did you talk to them that night?

A Yes.

Q Did he ask where Billy Joe was?

A No.

Q He didn't? A No.

Q You didn't answer he was in East Prairie?

A No."

In an effort to establish an alibi for movant, W____ called five witnesses, ² one of whom was movant's mother, Louise Razor. After those witnesses testified, W____ announced, "Your Honor, at this time the defense would rest."

The trial court thereupon declared a recess. During the recess, W____ informed the trial court that he wanted to present two witnesses "to rebut what [Tammy] said."

A discussion ensued between the trial court, the prosecutor and W____, during which the prosecutor objected to any evidence that would impeach Tammy Lamb because, said the prosecutor, when the defense rested, "I told the Lambs that they could leave, and they have gone back to Arkansas, so I have no way of getting them back here." ³

The trial court denied W____'s request. In an offer of proof, W____ identified the witnesses he wanted to call as Mike Rosson and Lisa Razor. W____ explained:

"... it is defendant's belief that if ... allowed to call Mike Rosson, he would testify that on the night in question, ... he returned home with his wife, Charmane Rosson, ... that he, in fact, spoke with Tammy Lamb. And upon inquiring as to the whereabouts of Billy Joe Garrett, she replied that he was, to her knowledge, in East Prairie.

The defense would also have called, had it been allowed, Lisa Razor, the daughter of Louise Razor. It is my expectation that she would have testified to the fact that Tammy Lamb does, in fact, smoke."

On the second appeal, the trial court's refusal to allow the two witnesses to testify was assigned as error, but the contention was rejected. Garrett, 682 S.W.2d at 155-56.

At the evidentiary hearing in the motion court, movant testified, without objection by the State, that had Mike Rosson been permitted to testify at trial, Rosson would have testified "[t]hat he spoke with Tammy that night, I believe it was around nine o'clock, and he asked Tammy where I was at, and Tammy told him that I had been at town all day long, down at East Prairie." Movant was also asked, at the evidentiary hearing in the motion court, what Lisa Razor would have testified to at trial, had she been given the opportunity. Movant replied, without objection by the State, "That she had saw Tammy smoking several times."

W____, called as a witness by movant at the evidentiary hearing in the motion court, testified, without objection:

"I would have called Mike Rosen [sic], and the purpose of his calling would have been that he would have testified that, on the night in question, he returned home with his wife, Charmaine [sic], that he spoke with Tammy; and, upon inquiring as to the whereabouts of Billy Joe, replied that he was, to her knowledge, in East Prairie.

I would also have called Lisa Razor, the daughter of Louise. It was expectated [sic]--It was expected that she would have testified to the fact that Tammy Lamb does, in fact, smoke."

W____ explained that he did not call Mike Rosson and Lisa Razor during the defense's case-in-chief because he was "saving them for rebuttal." Furthermore, explained W____:

"The other reason was also that there was allegations, and I did not want to give the state an opportunity to get into it, concerning sexual molestation of the daughters on Billy Joe's part, that I knew in the background.

I wanted the daughters to get on and off the stand and what I wanted to do was have them gone and away, and then--Have them gone and just put on my witnesses to say, 'She smoked,' and that's it.

I didn't want that potential for that damaging evidence or allegations to even come out."

The motion court's findings of fact included the following:

"Assuming that Mr. Rossen [sic] would have testified as claimed, there is no showing that at the time this statement was made it was inconsistent with Mr. Garrett's location at that time. By testimony, the fire was set around 9:00 or 9:30 p.m. and the location at the time of Mr. Rossen's [sic] asking the question to Tammy Lamb was some substantial time later, perhaps time enough for Mr. Garrett to be in East Prairie. Thus, the testimony would not be inconsistent with her statement that she saw Mr. Garrett in the torched residence at 9:30 in Charleston, the crucial time and place herein. Said statement could well be inconsistent with her testimony that after the fire movant was in Charleston at his mother's house. However, without more as to when the statement was made there may not be an inconsistency. Finally, assuming any inconsistency, it is not inconsistent with the crucial testimony that at 9:30 movant was in Charleston.

The testimony as to whether or not Tammy Lamb smoked would have been presented solely for the fact of showing an opportunity for a means whereby Tammy Lamb, herself, could have created the fire. Such testimony is highly speculative, of a minor nature and collateral.

This Court further considers the testimony of [W____] who wanted to have Tammy Lamb off the stand as soon as possible and not have her in the location of being able to submit prior consistent testimony. [W____] realized that his impeachment of Tammy Lamb as to her motive for lying had to be performed with extreme caution for fear of delving into areas wherein [W____] knew that Tammy Lamb had alleged that the defendant had engaged in illegal sexual activities and child abuse upon her. [W____] properly assessed the resultant inflammation such allegations might have upon movant. Thus, [W____'s] failure to call these witnesses in his case in chief is understandable and both a matter of trial strategy as well as impeachment, but impeachment that amounted to minor inconsistencies. As noted in Hurd vs. State, 637 SW2nd 809 (Mo.App.1982) the mere failure to impeach witnesses by means of 'minor' inconsistencies between trial testimony and testimony or statements given elsewhere does not prejudice the post conviction petitioner and cannot be the basis of granting relief on the ground of denial of effective assistance of counsel. Similarly, absent a showing of actual prejudice to movant, it is not for a court to question the trial strategy of [W____] in his introduction of, or failure to introduce, evidence. Franklin v. State, 655 SW2nd...