Green v. State, KCD
| Decision Date | 27 December 1978 |
| Docket Number | No. KCD,KCD |
| Citation | 575 S.W.2d 868 |
| Parties | Julian R. GREEN, Appellant, v. STATE of Missouri, Respondent. 29608. |
| Court | Missouri Court of Appeals |
Richard C. Arndt, Kansas City, for appellant.
John D. Ashcroft, Atty. Gen., S. Dana Stiebel, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
Defendant was convicted of first degree robbery, and that conviction was affirmed by this court in State v. Green, 534 S.W.2d 600 (Mo.App.1976). Defendant then filed a motion to set aside the conviction under Rule 27.26, which was overruled by the trial court. That ruling is the subject of the present appeal.
Defendant presents two points: (1) that his trial counsel gave him ineffective assistance, in that his counsel failed to impeach one of the State's witnesses by cross-examining that witness with respect to a prior statement which was inconsistent with his trial testimony in one minor respect; and (2) that the prosecutor was guilty of misconduct in failing to point out to defense counsel the testimonial inconsistency to which reference has just been made.
Our cases are replete with holdings that the court should not review or reassess by hindsight the judgment of trial counsel on questions of strategy, trial tactics or trial decisions, Hudson v. State, 524 S.W.2d 62 (Mo.App.1975); and that mere errors, omissions or mistakes do not constitute ineffective representation of counsel, Lewis v. State, 513 S.W.2d 772 (Mo.App.1974). Specifically applicable to the present case, it has been held that failure by defense counsel to impeach a State witness by a prior contradictory statement constitutes only a choice of trial technique which was "well within the broad latitude given in conducting a defense." Haynes v. State, 534 S.W.2d 552, 556 (Mo.App.1976); Jackson v. State, 540 S.W.2d 616 (Mo.App.1976); see also State v. Turner, 353 S.W.2d 602, 605 (Mo.1962).
Nor is there any merit in defendant's complaint of alleged prosecutorial misconduct. A prosecutor, of course, may not knowingly suppress material evidence favorable to the accused. Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Lee v. State, 573 S.W.2d 131 (1978). But here, the prior contradictory statement was made available by the prosecutor to defense counsel, and defendant does not even contend to the contrary. Rather, he contends that the prosecutor must go even further and...
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...will not review or reassess the judgment of trial counsel on questions of strategy, trial tactics or trial decisions. Green v. State, 575 S.W.2d 868, 869 (Mo.App.1978). This court need not determine whether the counsel's performance was deficient before examining whether prejudice was suffe......
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