Jackson v. State, 55836
| Decision Date | 12 April 1971 |
| Docket Number | No. 1,No. 55836,55836,1 |
| Citation | 465 S.W.2d 642 |
| Parties | Albert S. JACKSON, Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Francis P. Dorsey, St. Louis, appointed attorney for appellant.
John C. Danforth, Atty. Gen., James M. Reed, Asst. Atty. Gen., Jefferson City, for respondent.
HIGGINS, Commissioner.
Appeal from denial, after evidentiary hearing, of motion under Criminal Rule 27.26, V.A.M.R., to vacate and set aside judgment of conviction of assault with intent to kill with malice aforethought.
Albert Smith Jackson, with five prior felony convictions, was indicted for the felonious assault with malice aforethought of Richard Flynn on February 2, 1968, by shooting him with a .22-caliber rifle. At about 11:30 p.m., February 2, 1968, St. Louis police officers arranged for Officer George Gordon to go to defendant's home, a 3-room flat at 3609 Clarence Avenue, St. Louis, Missouri, to purchase narcotics. Using identified money, Officer Gordon purchased a tinfoil packet of white, powery substance which he believed to be narcotics. He showed the substance to other officers who were waiting nearby for him, and all proceeded to defendant's home. They demanded admittance for purposes of arrest; defendant refused and obtained a rifle and shot and wounded Officer Flynn. A siege of the premises by gunfire and tear gas terminated with the arrest of defendant, his wife Janie, and Azell Mason, Raymond Barnes, and Leroy Hall. Following the arrest the premises were searched for suspects, weapons, and narcotics and, after the tear gas cleared, photographs were taken depicting the arrangement and condition of the premises. Defendant did not testify, but his wife denied that he sold the narcotics or shot at the policemen. A jury convicted defendant, the court fixed his punishment at twenty-three years' imprisonment, and the ensuing judgment was affirmed upon direct appeal. State v. Jackson, Mo., 446 S.W.2d 627.
Movant sought relief on charges of ineffective assistance of counsel and overzealous prosecution. He contends the court grounds, asserting: that he was denied effective grounds, asserting; that he was denied effective counsel in failure of counsel to investigate his case, subpoena witnesses, and file pretrial motions to suppress evidence; and that he was denied a fair and impartial trial by an overzealous prosecutor.
At the hearing, by way of offer of proof, movant showed that if Melvin Leroy Tyler, a penitentiary inmate, were present, he would testify that he was in jail awaiting trial at the same time defendant was and heard defendant request Mr. Curtis Crawford, trial counsel, to subpoena Ozell Mason, Raymond Barnes, and Leroy Hill, and the police department ballistics expert to show that the bullet fragment taken from Officer Flynn was too heavy in caliber to have been fired by a .22-caliber rifle. The offer also covered testimony of Seymour Covington, another penitentiary inmate, to the effect that he assisted Melvin Leroy Tyler in preparation of movant's 27.26 motion and supporting brief.
Albert Jackson testified that Mr. Crawford came to see him twice between his arrest in February and his trial in July. He asserted that Mr. Crawford did not investigate his case The last reference was to Hall, Barnes, and Mason who were in defendant's home at the time of the assault and arrested with him. According to movant, at the time of his trial Hall and Barnes were in the city jail and Mason was at 3117 Northwood, St. Louis, Missouri. He also requested that counsel subpoena George and Will Young, employees of Schaeffer Lumber Company, who were said to have 'within a week (prior to the shooting) put a screen mesh on my door for the protection of burglary.' The three associates would have said that the police asked all of them, 'Who shot the police officer?' One of them could have said who fired the shot at Officer Flynn 'if he would have admitted it.' Movant wanted the ballistics expert subpoenaed 'To determine the weight of the shell. * * * the weight of the caliber of the slug taken from Mr. Flynn would have determined the weight of two .22 caliber shot right from a rifle instead of one.' In movant's opinion, a motion 'To suppress the evidence of illegal search and seizure * * * would have merit because the weapons obtained in the illegal search, which was made without a search warrant or warrant for my arrest, was used against me in my trial.' Also, 'he lied to me about my brief on my appeal * * * he claimed it was two hundred something pages long and he needed more money but it was only nine pages of the whole brief' 1 'and he permitted my wife (to be) improperly impeached' after her denial that her husband shot Officer Flynn by permitting an officer to testify in rebuttal that Mrs. Jackson had stated prior to trial that she assumed her husband had fired the shot because he had a gun upstairs.
Movant also stated, without any references, that counsel failed to object to evidence he believed to be immaterial, irrelevant, prejudicial, and hearsay.
In addition to his testimony, movant read into this record from the trial transcript numerous references in the state's case to the narcotics purchase, the use of tear gas, condition of the premises, photographs of his premises, the rifle, and excerpts from the state's argument with respect to the strength of the state's case and the weakness of any defense to the charge.
Curtis C. Crawford, movant's trial counsel, had been a practicing lawyer for seventeen years and at hearing time was district director for the Small Business Administration. He had represented defendant or had some preliminary legal matter with defendant five or six months prior to undertaking defense of the assault charge.
Defendant gave him the names of Mason, Barnes, and Hall. He got no response to his letters and one of them was returned.
He and defendant discussed calling the ballistics expert and the trial transcript shows that although called by the state, he was also examined by the defendant, and his testimony was that the fragment taken from Officer Flynn was mutilated to the extent he could neither identify it nor say from what weapon it might have been fired.
Mr. Crawford went by the house where the shooting occurred. He did not go into the house; he did examine its exterior. He was there The transcript shows the state to have taken and introduced some twenty-three photographs depicting both interior and exterior of defendant's premises.
As to the Schaeffer Lumber Company employees,
The transcript shows, among its three hundred eighty-two pages, page after page of informed, thorough cross-examination by Mr. Crawford of state's witnesses.
There is no question that an accused is entitled to effective assistance of counsel, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; and that such counsel must make reasonable investigation of the facts and of the applicable law 'to learn of readily available facts which might have afforded his client a legitimate justiciable defense,' Goodwin v. Swenson, W.D.Mo., 287 F.Supp. 166. Note also that a charge of ineffective assistance of counsel can prevail only where counsel's performance 'made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court,' Cardarella v. United States, 8 Cir., 375 F.2d 222, 230; Jones v. Huff, 80 U.S.App.D.C., 254, 152 F.2d 14; or that it 'blotted out the essence of a substantial defense,' Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113, 117; or that counsel's alleged omissions 'cannot be explained on the basis of any knowledgeable choice of tactics,' People v. Floyd, 1 Cal.3d 694, 83 Cal.Rptr. 608, 464 P.2d 64, 73.
Appellant's argument with respect to counsel's alleged failure to investigate acknowledges counsel's letters to witnesses, calls to defendant's wife, conversations with defendant, examination of the scene of the crime, and numerous pictures of the premises in evidence. He fails to suggest what additional investigation he would have had counsel make, and the trial record shows by his vigorous and detailed cross-examination that counsel was prepared. As a consequence, it may not be said that the court erred in failing to find counsel ineffective for alleged failure to investigate.
With respect to suggested witnesses Hall, Mason, and Barnes, the record shows that counsel made futile attempts by mail to locate them, an indication that they were not likely to be found by subpoena, and appell...
To continue reading
Request your trial
-
State v. Hicks, 9929
...815(2) (Mo.App.1973). A prosecutor's obligation is not simply to obtain a conviction, but to see that justice is done (Jackson v. State, 465 S.W.2d 642, 647(7) (Mo.1971); State v. Brooks, 513 S.W.2d 168, 174(11) (Mo.App.1973)), and that the accused gets a fair and impartial trial. State v. ......
-
Richardson v. State
...PER CURIAM: The foregoing opinion by HOUSER, C., is adopted as the opinion of the court. All of the Judges concur. 1 Jackson v. State, Mo.Sup., 465 S.W.2d 642; Gaitan v. State, Mo.Sup., 464 S.W.2d 33; State v. Caffey, Mo.Sup., 457 S.W.2d 657; Holbert v. State, Mo.Sup., 439 S.W.2d 507; State......
-
Williams v. State, KCD
...if tried before a jury. Perforce, movant was charged with the burden of so doing in the particulars just mentioned. Jackson v. State, 465 S.W.2d 642, 646 (Mo.1971); and Babcock v. State, supra, 485 S.W.2d at 89. The amount of time that counsel spent in consulting with movant prior to entry ......
-
Walker v. State
...that effective assistance of counsel includes investigation by counsel, Jones v. State, 491 S.W.2d 233 (Mo.1973), Jackson v. State, 465 S.W.2d 642 (Mo.1971), preparation by counsel, Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962), and availability for conference, Coles v. Peyton, 389 F.2d ......