Jones v. State, 41519.
| Citation | 604 S.W.2d 607 |
| Decision Date | 15 October 1980 |
| Docket Number | No. 41519.,41519. |
| Parties | Ardell JONES, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent. |
| Court | Court of Appeal of Missouri (US) |
Leonard W. Buckley, Jr., St. Louis, for movant-appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for defendant-respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied July 16, 1980.
Movant, Ardell Jones, appeals from a denial without a hearing by the trial court, of his Rule 27.26 motion to vacate a judgment against him assessing a punishment of 25 years imprisonment for second degree murder.
Movant, has through a series of legal actions, expanded his assignment of error as originally made by objection in the trial court. At trial, the defense attorney objected to statements made by the prosecutor during argument on the grounds that the statements were conclusory. The trial court ruled on this objection by allowing the prosecutor to continue with his argument.
In his motion for new trial, movant alleged that the court erred in overruling defense counsel's objections to these comments made by the prosecutor because such comments were speculative and improper. The court overruled the motion stating that the allegations in the motion were insufficient to change the court's mind concerning the proceedings at trial. Movant then appealed to the Missouri Supreme Court, his assignment of error being that the prosecutor improperly inferred that defense counsel believed movant was guilty and that his belief was based on matters not in evidence. The Supreme Court affirmed the conviction refusing, however, to consider this particular assignment of error on the grounds that it had not been made the basis for objection at trial nor had it been presented in the motion for new trial and was, therefore, not properly preserved for the Court's review. State v. Jones, 515 S.W.2d 504, 506 (Mo. 1974).
Movant then filed a Rule 27.26 motion alleging ineffective assistance of counsel. The bases for this allegation were that his attorney failed to make continuous objections to the prosecutor's alluding to the idea during closing argument that defense counsel believed that his own client was guilty and that his attorney failed to move for a mistrial.
Pursuant to a preliminary conference with the circuit attorney and movant's newly appointed counsel, the trial court denied the motion on the basis that the movant had already received complete review of his conviction in the Supreme Court. In its memorandum opinion on the motion the Court states that the movant was asserting by way of his motion essentially the same point as was ruled against him by the Supreme Court and that by relabeling his assignment of error "ineffective assistance of counsel" movant was attempting to obtain a second appeal by way of a Rule 27.26 motion.
On appeal from the denial of his motion movant asserts two points of error. Movant's first point is that the trial court erred in not specifically addressing in its findings and conclusions movant's claims of unconstitutional trial proceedings and ineffective assistance of counsel. Movant's second point is that the trial court erred in denying him an evidentiary hearing on his motion. Movant claims that he is entitled to an evidentiary hearing because the allegations in his motions are not refuted by the record.
Although, the trial court did not make specific findings as to movant's allegations of unconstitutional trial proceedings and ineffective assistance of counsel, we do not agree with movant's contention that this constitutes reversible error. While movant correctly cites Fields v. State, 572 S.W.2d 477 (Mo. banc 1978) for the proposition that specific findings of fact and conclusions of law are contemplated by Rule 27.26, Fields does not change our scope of review in an appeal from a denial of a 27.26 motion. Our review is limited to a determination of whether such findings, conclusions and judgment of the trial court as they appear in the record are clearly erroneous. Rule 27.26(j); Henson v. State, 581 S.W.2d 595 (Mo.App.1979). Where the trial court has made findings on all issues sufficient to enable this court to review movant's contentions this constitutes compliance with Rule 27.26(i). Thomas v. State, 512 S.W.2d 116,...
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