Hamm v. State, 54600

• Decision Date: 07 March 1989
• Docket Number: No. 54600,54600
• Parties: Samuel Cortez HAMM, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 574

768 S.W.2d 574

Samuel Cortez HAMM, Appellant, v. STATE of Missouri, Respondent.

No. 54600.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 7, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied April 3, 1989.

Application to Transfer Denied May 16, 1989.

Mary C. McWilliams, Asst. Public Defender, St. Louis, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Zeigler, Asst. Atty. Gen., Jefferson City, for respondent.

HAMILTON, Judge.

Movant was convicted of murder in the first degree (felony murder) in violation of Section 565.003 RSMo.1978, and sentenced to life imprisonment. His conviction was affirmed on appeal. State v. Hamm, 710 S.W.2d 335 (Mo.App.1986). Thereafter, Movant filed a Rule 27.26 motion that the trial court overruled following an evidentiary hearing. We affirm.

Although alleging numerous points of error on appeal, Movant essentially seeks to set aside his sentence on two grounds: first, that he was denied effective assistance of counsel by his trial attorney and second, that the trial court erred when it failed to make certain findings of fact and conclusions of law.

Judicial review of a Rule 27.26 motion is limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Mo.R.Crim.P. 27.26(j); Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986). Such findings, conclusions, and judgment are clearly erroneous if, upon a review of the entire record, "the appellate court is left with the 'definite and firm impression that a mistake has been made.' " Foster v. State, 748 S.W.2d 903, 905 (Mo.App.1988) (quoting Stokes v. State, 688 S.W.2d 19, 21 (Mo.App.1985)).

To prevail on a claim of ineffective assistance of counsel, a movant must demonstrate that: (1) counsel's performance was deficient, that is, it was not reasonable under prevailing professional norms, and (2) movant was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Judicial review of counsel's performance must be very deferential in that

every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

Movant first claims trial counsel was ineffective during voir dire because he told the venire that "we are here for one reason, and that is because Sam Hamm refuses to plead guilty to this charge." Thus, Movant contends counsel conceded guilt. Viewed in the context of counsel's complete remarks to the jury panel, however, the statement was part of an explanation of the presumption of innocence to which a criminal defendant is entitled. Because that explanation accurately stated the law, it was not prejudicial.

Movant next contends counsel's failure to challenge venireman Miller for cause denied him effective assistance of counsel. Venireman Miller, whose son was prosecuting attorney for Ripley County, admitted that familiarity with a prosecutor's work, gained through discussions with his son, might cause him to favor the State. Under further questioning, however, Mr. Miller stated he thought he could be fair and impartial to the State and to the defendant, and he could follow the instructions of the court. Although Movant's counsel made no motion to strike the venireman for cause, he did exercise a peremptory strike to remove Mr. Miller from the panel. At the evidentiary hearing, counsel testified that he wanted to preserve the issue for a motion for new trial or for appeal. Hence, his failure to make a motion to strike for cause was strategic and, moreover, no prejudice resulted to Movant. Porter v. State, 682 S.W.2d 16, 19 (Mo.App.1984).

Movant further claims counsel was ineffective when he elicited testimony from a police officer concerning the booking photograph of Movant. Counsel noted the absence of the photograph from the prosecutor's file and, after the officer denied having it, counsel cross-examined him further, inducing the officer to produce it. By this strategy, counsel highlighted the officer's evasiveness. No prejudice resulted for the photograph had been taken after Movant's arrest for the crime being prosecuted. As a matter of trial strategy, these actions fail to constitute ineffective assistance of counsel.

Nor was counsel ineffective when he stipulated that the victim died as a result of injuries caused when Movant's car struck her automobile. The State contended Movant struck the victim's car while attempting to flee the scene of a burglary he committed. Movant, however, denied he either committed the burglary or was driving his car when it struck the victim. Consequently, no prejudice resulted from the stipulation because Movant claimed someone else drove the car when it collided with the victim's automobile. Thus, the cause of death was immaterial to Movant's defense, and counsel's decision to stipulate to it was a matter of trial strategy.

Finally, Movant asserts his counsel rendered ineffective representation through nonfeasance: (1) the failure to interview the State's witnesses, (2) the failure to have an expert examine the State's fingerprint evidence, (3) the failure to object to the State's late endorsement of witnesses, (4) the failure to move for a mistrial or to request a continuance to permit an alibi witness to testify live at trial, and (5) the failure to object to an allegedly tainted in-court identification of Movant.

At the evidentiary hearing, counsel testified the police reports disclosed to him the anticipated testimony of the trial witnesses. He thus had no need to investigate or to interview these witnesses further in view of Movant's defense of mistaken identity. Moreover, an independent examination of the fingerprint was unnecessary because the defense on that evidence was to question whether it was obtained from the crime scene, not to deny it was Movant's print. Counsel does have a duty to make a reasonable investigation or to make a reasonable decision that makes a particular investigation unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. In view of the defenses asserted by Movant at trial, counsel's decisions were reasonable. Moreover, Movant proved no prejudice resulting from these decisions.

Trial counsel further testified he made no objection to the late endorsement of two witnesses for the State. The first witness was endorsed late because police reports erroneously identified her as Mr. Binsbacher, not Mrs. Binsbacher. She was, moreover, expected to testify to the...