Hines v. State, WD

• Decision Date: 02 April 1985
• Docket Number: No. WD,WD
• Citation: 691 S.W.2d 918
• Parties: Carl HINES, Appellant, v. STATE of Missouri, Respondent. 35768.
• Court: Missouri Court of Appeals

Page 918

691 S.W.2d 918

Carl HINES, Appellant, v. STATE of Missouri, Respondent.

No. WD 35768.

Missouri Court of Appeals Western District.

April 2, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 28, 1985.

.

Daniel L. Radke, St. Joseph, for appellant.

William L. Webster and Philip M. Koppe, Kansas City, for respondent.

Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.

KENNEDY, Judge.

Defendant (as we shall call the movant) by this Rule 27.26 motion seeks relief from a 1980 armed robbery, § 569.020, RSMo 1978, conviction, in which he was shown to have robbed a jewelry store of merchandise worth more than $57,000. The conviction was affirmed upon direct appeal to this court, State v. Hines, 645 S.W.2d 88 (Mo.App.1982).

The trial court after an evidentiary hearing overruled the Rule 27.26 motion. Defendant appeals.

The reason advanced for Rule 27.26 relief is ineffectiveness of counsel in three particulars which we take up in turn.

I

Defendant says first that defense counsel was ineffective in failing to request a continuance when the trial court refused defendant's oral request to subpoena a penitentiary inmate as a witness for defendant. He says that a continuance would have enabled him to sue out a writ of habeas corpus ad testificandum, in accordance with Rule 26.04. The failure of defendant to comply with that rule was one ground upon which we held on the original appeal that the court had not erred in failing to issue the writ.

We are unable to say that the trial court was clearly in error in rejecting this ground for Rule 27.26 relief. The defendant had refused to disclose to his attorney what he expected the witness to testify to, or the name of the witness. Only on the day before the trial did he disclose to his attorney and to the court his explanation that the robbery had been counterfeited, with the store owner's complicity, in order to collect the insurance proceeds, and that he would expect the witness--whose name he disclosed for the first time--to support his theory. In such a case, the merits of a motion for a continuance would have been very slight. In fact, defendant testified on the Rule 27.26 hearing that he had orally requested a continuance and had been denied. The attorney testified that he had "talked with (the judge) about it" with similar results. It is clear that a formal motion for a continuance would have been unavailing. It is clear also that, had the refusal to grant the continuance been reviewed on appeal, it would not have resulted in a reversal of defendant's conviction. The denial of a continuance in order to secure the testimony of an absent witness is held to be within the discretion of the trial judge, and the denial of a continuance for such purpose is grounds for reversal only when that discretion has been abused. The defendant must have shown some measure of diligence to secure the testimony of the absent witness in order to establish his entitlement to a continuance on that ground. Rule 24.10(b); State v. Johnson, 461 S.W.2d 724, 725-26 (Mo.1971); State v. Burney, 143 S.W.2d 273, 275, 346 Mo. 859 (1940); State v. Lonon, 56 S.W.2d 378, 381, 331 Mo. 591 (1932); State v. Henderson, 568 S.W.2d 556, 558-59 (Mo.App.1978); and numerous other cases collected in 12 Mo.Digest 2d Criminal Law §§ 594(1), 598(1)-(2).

Defendant has not shown that a formal application for a continuance would have given any reasonable probability of any different result in this case. The omission of the application was not prejudicial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Love v. State, 670 S.W.2d 499, 503 (Mo. banc 1984).

II

As another instance of counsel ineffectiveness defendant posits counsel's failure to file a motion to suppress certain evidence seized by officers in the execution of a search warrant. The search warrant authorized a search of defendant's motel room. It described "white and yellow gold men and women's rings, with diamonds". It did not describe a pistol, ammunition, holster, and a Sukut's Fine Diamonds layaway ticket. The officers found the latter items under the mattress of a bed in defendant's motel room while they were searching the room under the authority of the search warrant. In the same place they found a sack containing 49 men's and 13 women's gold and diamond rings. The gun was identified as one used in the robbery, and the rings were identified as being a part of those that were stolen in the robbery.

There are two equally good answers to defendant's contention. The first is that, given his defense that the supposed robbery was staged, there was no prejudice in the admission of the gun. His possession of the gun was in complete harmony with his defense.

Second, the property was not subject to suppression. The officers had found the gun, the ammunition, the holster and the layaway ticket in a place where they were entitled to search for the items described in the search warrant, and while they were searching for such items. They were instantly recognizable as evidence, although their discovery was actually inadvertent. Any motion to suppress would have been without merit, and there was no prejudice to defendant in his counsel's omission to file such a motion. State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1980); State v. Abbott, 664 S.W.2d 537, 542 (M...