Lewis v. State, s. 35556

• Citation: 513 S.W.2d 772
• Decision Date: 27 August 1974
• Docket Number: Nos. 35556,35557,s. 35556
• Parties: James Farmer LEWIS, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent. . Louis District, Division Two
• Court: Court of Appeal of Missouri (US)

Page 772

513 S.W.2d 772

James Farmer LEWIS, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.

Nos. 35556, 35557.

Missouri Court of Appeals, St. Louis District, Division Two.

Aug. 27, 1974.

McQuie & Deiter, Daniel W. Deiter, Montgomery City, for defendant-appellant.

James G. Gregory, Pros. Atty., Montgomery City, for plaintiff-respondent.

GUNN, Judge.

Defendant appeals the denial by the Montgomery County Circuit Court of his petition for post conviction relief under Supreme Court Rule 27.26, V.A.M.R. In two separate trials, defendant was charged with and convicted of burglary and stealing. In one case, punishment was assessed six years for burglary and four years for stealing. In the second case, punishment of five years for burglary and two years for stealing was imposed, with the sentences to run concurrently. The convictions were appealed and affirmed. State v. Lewis, 482 S.W.2d 432 (Mo.1972); State v. Lewis, 482 S.W.2d 436 (Mo.1972).

The facts of the cases are detailed in the reported opinions of defendant's appeals of convictions. In brief, the cases against defendant were brought as a result of burglaries of two dwellings and the theft from them of certain items of personal property. One of the burglary victims, with his two brothers, captured defendant on the night after the burglary in a nearby woods where defendant was seeking to retrieve a television set which had been stolen in one of the burglaries and hidden by the burglar. The police were summoned, took defendant into custody and searched his car, which was parked on a side road about one-eighth mile away from the woods where defendant was apprehended. The car search disclosed four automobile titles and two fishing rods and reels taken from the dwellings of the burglary victims and two pairs of gloves and a screwdriver.

A hitchhiker, who had been picked up by the defendant earlier in the evening and who was with defendant when he was captured in the woods, testified for the State. The hitchhiker's testimony was that defendant had said that the reason for going into the woods was to pick up a television set and some pistols which defendant had earlier stolen. At trial, the items taken from the car were introduced. Defendant's trial counsel objected to the introduction of the gloves and screwdriver as irrelevant and to the introduction of duplicates of the car titles as not the best evidence. No objection was made to the receipt in evidence of the fishing rods and reels.

Defendant's defense to being in the woods looking for a television set was that he had been paid $50 to pickup to t.v. set by a person who had possession of defendant's car during the time that the burglaries occurred; that the defendant did not have knowledge that the television set was stolen. The circuit court, without hearing, sustained the State's motion to dismiss defendant's Rule 27.26 motion, and defendant appealed.

The major thrust of defendant's 27.26 motion is directed at the failure of his counsel to move to suppress the items seized from the defendant's automobile on the grounds of unlawful search and seizure. Defendant argues that without those items in evidence, the State had no submissible case against defendant; that defendant was thereby denied effective assistance of counsel.

The validity of a search and seizure is not a proper matter for consideration in a Rule 27.26 proceeding. Brodkowicz v. State, 474 S.W.2d 822 (Mo.1972); State v. Caffey, 457 S.W.2d 657 (Mo.1970). Nor do we need determine whether a motion to suppress would have been granted or denied. State v. Worley, 371 S.W.2d 221 (Mo.1963).

While defendant asserts that it is apparent that without the exhibits the State had no case, the Supreme Court found otherwise on the appeals from the convictions. In State v. Lewis, supra, the court said l.c. 434:

'This case, to a substantial degree, was based on circumstantial evidence, but it does not rest solely on the inference authorized by reason of possession of recently stolen property. The jury could take into consideration that appellant parked his automobile over one-eighth of a mile from where he entered the woods, that he entered the woods near midnight and went directly to the place where the television set had been found, that he had possession of some of the property stolen in the burglary, that he admitted to Gary (hitchhiker) that he had stolen the television set, and that he made inconsistent statements concerning his reason for entering the woods. When these facts and circumstances are considered with the facts of the burglary, and the items which were stolen, they authorized a finding by the jury that appellant was the one who burglarized the Strube mobile home and stole the property therefrom. Possession of the stolen property was but one of the circumstances; the case did not rest on that fact alone.'

Therefore, as noted from the foregoing, defendant had substantially more to overcome than the discovery of certain items in his car. It was a matter of trial strategy for defendant to defend his case on the grounds that some other person had taken possession of his car; that such person had the opportunity to commit the burglaries, hide the t.v. set and leave evidence in defendant's car. It is not our function to review or second guess the strategy of the trial counsel. In State v. Brownridge, 506 S.W.2d 466...