Lawrence v. State

• Decision Date: 26 April 2005
• Docket Number: No. 25990.,25990.
• Citation: 160 S.W.3d 825
• Parties: Richard D. LAWRENCE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Supreme Court

160 S.W.3d 825

Richard D. LAWRENCE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

No. 25990.

Missouri Court of Appeals, Southern District, Division One.

April 26, 2005.

COPYRIGHT MATERIAL OMITTED

Ellen H. Flottman, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Assistant Attorney General, Jefferson City, for respondent.

PHILLIP R. GARRISON, Presiding Judge.

Richard D. Lawrence ("Movant") was found guilty by a jury of driving while intoxicated, a violation of Section 577.010, and driving while his license was revoked, a violation of Section 302.321.¹ The court sentenced Movant as a prior and persistent offender to concurrent terms of ten years in the custody of the Missouri Department of Corrections and one year in the custody of the Laclede County jail, respectively. We affirmed his conviction and sentence on direct appeal. State v. Lawrence, 64 S.W.3d 346, 355 (Mo.App. S.D.2002).

On February 7, 2002, Movant filed a pro se motion to vacate, set aside or correct his conviction and sentence, pursuant to Rule 29.15.² An amended version of that motion was filed on October 25, 2002. Following an evidentiary hearing, the motion court denied Movant's motion. This appeal followed. We affirm the motion court's ruling.

On September 25, 1998, Deputy Greg Weddle ("Deputy Weddle") of the Laclede County Sheriff's Department was directing traffic at the intersection of Highway 5 and Route C because of a nearby fire, when he observed a black Pontiac Firebird traveling north on Highway 5 at a high rate of speed. The car swerved out of its lane several times and nearly hit Deputy Weddle and his patrol car as it drove past. Since the car had crossed the center line, Deputy Weddle believed the driver might be intoxicated so he called dispatch to have the highway patrol look for the vehicle. Deputy Weddle's call to dispatch included a description of the driver as a white male with long, shoulder-length hair wearing a black T-shirt and sunglasses, as well as the fact that the car had a cracked and shattered front windshield that was still intact.

Shortly after the incident involving Deputy Weddle, David Hudson ("Hudson") was traveling south on Highway 5, about a mile and a half north of the intersection where Deputy Weddle was directing traffic, when he noticed a late model black car, either a "Trans Am, Z 28[or] Firebird," cross the center line coming towards him. The black car forced another car off of the road and also forced Hudson to pull into a driveway to avoid a collision. Hudson observed that the driver had long hair and was not wearing a shirt. He also noted the vehicle had a "busted out" or shattered windshield on the driver's side. When the black car pulled into a nearby driveway, Hudson looked through the scope of an unloaded rifle and observed the driver, whom he later identified as Movant, get out of his car and walk north into a wooded area. Hudson then continued south on Highway 5 until he reached the intersection where Deputy Weddle was positioned. He told Deputy Weddle what had happened and continued on to his farm.

Several minutes later, when Hudson drove back north on Highway 5, he observed Movant, about two miles north of the intersection of Highway 5 and Route C, standing at the corner of Highway 5 and Route HH. Hudson turned around and went back to Deputy Weddle's location at Highway 5 and Route C, where he was told that Movant had been apprehended and was being brought to that location by a highway patrolman.

Trooper Jason Riggs ("Trooper Riggs") of the Missouri Highway Patrol overheard radio traffic concerning the incident with Deputy Weddle. After receiving a description of the driver, Trooper Riggs located Movant standing at the corner of Highway 5 and Route HH, in the area where Hudson last observed him. Trooper Riggs stopped and as Movant was walking to the patrol car, Trooper Riggs noticed that he was unsteady on his feet and staggering, his eyes were blood shot and watery, and his speech was slurred as he talked. Movant was also carrying a set of keys which he handed to Trooper Riggs upon being requested to do so. Movant agreed to perform some field sobriety tests. According to Trooper Riggs, Movant failed a horizontal gaze nystagmus test. Movant then refused to undergo any other sobriety tests, and when asked if he'd been drinking, Movant replied, "a lot." Movant was placed under arrest for driving while intoxicated and given his Miranda warnings.³

Trooper Riggs was informed that a witness was with Deputy Weddle. When he took Movant to that location, Hudson identified Movant as the driver of the black car. While Trooper Riggs was talking with Deputy Weddle and Hudson, they noticed that Movant had fallen out of the patrol car. When asked what he was doing, Movant said, "I am drunk" and asked Trooper Riggs to help him off the ground.

The following day, Trooper Riggs went to the location where the black car Hudson saw Movant get out of had been towed. He found that the keys Movant handed to him started that car.

At trial, Movant's driving record was introduced, showing that his driving privileges were under revocation at the time of the incident in question and, as indicated earlier, he was found guilty of felony driving while intoxicated and driving while his license was revoked.

Movant now appeals the motion court's denial, following an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. Movant raises two points on appeal. First, he contends the motion court clearly erred in denying his Rule 29.15 motion because Movant's trial counsel was ineffective for failing to request a change of venue in that he was prejudiced because his niece by marriage, who knew of his prior alcohol-related convictions, became a juror in his case. Second, he contends his trial counsel was ineffective for not allowing Movant to testify in that he wanted to tell the jury that he did not have the car keys in his hand, despite contrary evidence, which went to the element of whether Movant was actually driving the car.

Our review of the denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Knese v. State, 85 S.W.3d 628, 631 (Mo. banc 2002); Bewley v. State, 151 S.W.3d 151, 153 (Mo.App. S.D.2004). The findings and conclusions of the motion court are clearly erroneous only if, after a thorough review of the record, we are left with the definite and firm impression that a mistake has been made. Shockley v. State, 147 S.W.3d 189, 191 (Mo.App. S.D. 2004).

Trial counsel's performance is presumed to be effective and therefore, Movant bears the burden in overcoming this presumption by a preponderance of the evidence. Rule 29.15(i); Nicklasson v. State, 105 S.W.3d 482, 484 (Mo. banc 2003); State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996). In order for Movant to prevail on his ineffective assistance of counsel claim, he must first demonstrate that his trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances. Crooks v. State, 131 S.W.3d 407, 409 (Mo.App. S.D.2004). Second, he must demonstrate that not only was his trial counsel ineffective, but that he was prejudiced by trial counsel's poor performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). "Prejudice is shown where `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Crooks, 131 S.W.3d at 409 (citing Strickland at 694, 104 S.Ct. 2052). If Movant fails to satisfy either prong, relief will be denied. State v. Simmons, 955 S.W.2d 752, 772 (Mo. banc 1997); Wright v. State, 125 S.W.3d 861, 866 (Mo.App. S.D.2003).

Movant cannot base a claim of ineffective assistance on reasonable choices of trial strategy. Knese, 85 S.W.3d at 631. Therefore, in attempting to satisfy the first prong of the test, Movant must overcome the presumption that the challenged action was a decision appropriately made in the exercise of professional judgment. Jameson v. State, 125 S.W.3d 885, 890 (Mo.App. E.D.2004). "Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable." Tokar, 918 S.W.2d at 761, (citing Strickland, 466 U.S. at 690-691, 104 S.Ct. 2052). In reviewing trial strategy, we evaluate the conduct of counsel from his perspective at the time of the conduct. State v. Light, 835 S.W.2d 933, 940 (Mo.App. E.D.1992).

Movant maintains his trial counsel was ineffective by not requesting a change of venue, even though Movant requested that he do so. He contends that he was prejudiced by this failure because his niece, by marriage, became a juror and that she knew of his prior alcohol related convictions. He also explained, at the evidentiary hearing, that he wanted his counsel to request a change of venue because Movant was "well[-]known around [the county] because of the alcohol," but that his trial counsel refused unless Movant paid more money.

During voir dire, the State asked prospective jurors if anyone knew Movant. None of the jurors, including a juror later identified by Movant as his niece by marriage, responded affirmatively to the State's question. The same was true when they were asked if anyone knew anything about this case. However, on the second day of trial, Movant advised his trial counsel that ...