Jackson v. State, 37049
| Decision Date | 17 August 1976 |
| Docket Number | No. 37049,37049 |
| Citation | 540 S.W.2d 616 |
| Parties | Otis JACKSON, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Hayes & Heisler, Daniel B. Hayes, Clayton, for plaintiff-appellant.
John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for defendant-respondent.
After full hearing and a comprehensive opinion, the trial court ruled adversely to defendant on his Rule 27.26 motion for post conviction relief, and defendant has appealed. We find no error and affirm the judgment of the trial court.
Defendant was convicted of the first degree murder of Eugene Helm, and the judgment of conviction was affirmed on appeal in State v. Jackson, 511 S.W.2d 771 (Mo.1974), which details the facts giving rise to defendant's conviction. It is enough to state that defendant shot Helm with a rifle, and Helm bled to death from a wound in his hip.
The thrust of defendant's Rule 27.26 motion is inadequate assistance of counsel, and we find defendant's position in this regard to be untenable. Defendant asserts that his trial counsel failed to elicit from him that Helm had a reputation for violence. The evidence was that defendant's trial counsel did make inquiry of several people whether Helm had the nature of causing any trouble or had been in any fights. The response to the trial counsel's investigation was negative. While defendant urges that he advised his trial counsel that Helm had a reputation for bellicosity, the trial counsel testified at the 27.26 hearing that although the defendant was specifically asked, the defendant never indicated that Helm had a reputation for violence. We recognize that inquiry into the general reputation of a decedent for turbulent disposition is legitimate. State v. Maggitt, 517 S.W.2d 105 (Mo. banc 1974). But according to defendant's trial counsel, after investigation and inquiry, such a line of attack would have been fruitless. The trial court resolved the conflict between defendant and his trial counsel in the latter's favor, and we defer to the trial court's finding. Dean v. State, 535 S.W.2d 301 (Mo.App.1976); Floyd v. State, 518 S.W.2d 700 (Mo.App.1975).
Defendant also attacks the action of his trial counsel: a) in failing to impeach the testimony of an eyewitness to the shooting; b) in failing to obtain expert testimony regarding the characteristics of the rifle utilized by defendant and the fact that it was deliberately aimed low to hit Helm in the hip rather than some other vital part of the body; 3) in failing to argue to the jury that defendant aimed low to halt, rather than kill Helm. None of these charges is availing for defendant. According to defendant's trial counsel his investigation revealed no contradictions of the eyewitness worthy of impeachment, and, furthermore, argument was made to the jury that defendant had deliberately aimed low to avoid inflicting a fatal wound; that after full consideration, it was determined that no need existed for bringing in an expert witness regarding the structure of the gun and the fact that it would have had to have been intentionally aimed low in order to inflict the hip wound. Under the circumstances, the question of impeachment and of obtaining a gun expert were matters of trial strategy and technique, which will not serve as a basis for ineffective assistance of counsel. Haynes v. State, 534 S.W.2d 552 (Mo.App.1976).
Defendant argues that his trial counsel failed at trial to make objection or move for mistrial during portions of the prosecutor's argument to the jury. This matter was specifically covered by the Supreme Court in State v. Jackson, supra, and it was held, in spite of defendant's contentions of plain error on the appeal...
To continue reading
Request your trial
-
Kenley v. State
...a witness is a matter of trial technique and strategy and cannot be the basis of a breach of duty toward appellant. Jackson v. State, 540 S.W.2d 616, 617 (Mo.App.1976). Moreover, we find these "inconsistencies" minor at best and agree with the hearing court that appellant has not shown how ......
-
Bryant v. State, 11346.
...common-law wife with whom he testified he had spent the evening of the crime? Booth v. State, 491 S.W.2d 286 (Mo. 1973); Jackson v. State, 540 S.W.2d 616 (Mo.App.1976). In spite of the foregoing review of appellant's assertions, ineffective assistance of counsel is not to be determined by a......
-
Coleman v. State, WD
...small consequence. Barton v. State, 586 S.W.2d 819, 821 (3) (Mo.App.1979); Aikens v. State, 549 S.W.2d 117 (Mo.App.1977); Jackson v. State, 540 S.W.2d 616 (Mo.App.1976). 1-b. Ineffective assistance of counsel failure to object to Movant then claims his attorney was ineffective in failing to......
-
Barton v. State, 11118
...466 S.W.2d 689 (Mo.1971); Jackson v. State, 465 S.W.2d 642 (Mo.1971); Aikens v. State, 549 S.W.2d 117 (Mo.App.1977); Jackson v. State, 540 S.W.2d 616 (Mo.App.1976). "(T)he fixing of a standard by which effectiveness of counsel can be measured has been very difficult." Seales v. State, 580 S......