Lewis v. State

• Decision Date: 14 February 1989
• Docket Number: No. WD,WD
• Citation: Lewis v. State, 767 S.W.2d 49 (Mo. App. 1989)
• Parties: William C. LEWIS, Appellant, v. STATE of Missouri, Respondent. 40293.
• Court: Missouri Court of Appeals

Page 49

767 S.W.2d 49

William C. LEWIS, Appellant, v. STATE of Missouri, Respondent.

No. WD 40293.

Missouri Court of Appeals,

Western District.

Feb. 14, 1989.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 28, 1989.

John Edward Cash, Kansas City, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before FENNER, P.J., and SHANGLER and BERREY, JJ.

FENNER, Presiding Judge.

Appellant, William C. Lewis, appeals from an evidentiary hearing denying his Rule 27.26 (now repealed) motion.

Lewis was convicted in April of 1976, after trial by jury, of murder in the first degree. He was sentenced to life in prison on April 28, 1976. On December 5, 1977, Lewis' conviction and sentence were affirmed on direct appeal. State v. Lewis, 559 S.W.2d 584 (Mo.App.1977).

In his first point in this appeal, Lewis alleges that he was denied effective assistance of counsel by his counsel's failure to file a motion to quash the jury panel based on the systematic exclusion of women. Lewis argues that if this issue had been preserved he would have been entitled to a reversal of his conviction.

On January 21, 1975, the United States Supreme Court held that the Sixth Amendment of the United States Constitution affords a defendant in a criminal proceeding the right to a jury selected from a representative cross-section of the community, and that "distinctive groups" in the community, such as women, cannot be systematically excluded from the selection process. Taylor v. Louisiana, 419 U.S. 522, 537-539, 95 S.Ct. 692, 701-702, 42 L.Ed.2d 690 (1975). On January 9, 1979, the United States Supreme Court applied its holding in Taylor v. Louisiana, to invalidate the conviction of a criminal defendant tried in Missouri by a Jackson County jury in March of 1976, one month prior to appellant's trial. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). In Duren, the United States Supreme Court held that the systematic exclusion of women which results in jury venires averaging less than 15% females violates the Constitution's fair cross-section requirement. Id. at 360, 99 S.Ct. at 666. The ruling of the United States Supreme Court in Duren overturned an earlier ruling to the contrary by the Missouri Supreme Court which, on September 27, 1977, had upheld the jury-selection procedures then used in Jackson County. State v. Duren, 556 S.W.2d 11 (Mo. banc 1977). However, it is well settled that absent a timely objection, no claim based on alleged underrepresentation of women on juries can be made with respect to a jury seated prior to the ruling of the Missouri Supreme Court on September 27, 1977, in State v. Duren, regardless of whether the claim is made on direct appeal or in a post-conviction proceeding. Benson v. State, 611 S.W.2d 538 (Mo.App.1980). Benson at 545-546, specifically holds that failure to file a motion to quash the jury panel on the basis of underrepresentation of women in a criminal case tried prior to the 1977 Missouri Supreme Court decision in State v. Duren, is not to be deemed ineffective assistance of counsel. Appellant's trial was in April of 1976 and accordingly, his claim of ineffective assistance of counsel on this point is denied.

In his second point, Lewis argues that it was clearly erroneous for the court to fail to grant his request under Rule 75.01, to vacate the denial of his 27.26 motion and reopen the case for further evidence of his claim that trial counsel was ineffective in failing to investigate the mental background of Grace Lawton, who was a key witness at his trial.

The background on this point is that Lewis' motion under Rule 27.26 was denied by order of the court on January 7, 1988. On February 3, 1988, the appellant, pro se, filed a pleading styled "Notice of Motion". Apparently attached to or included with this notice was a motion for leave to proceed in forma pauperis, an affidavit of poverty, and a motion styled "Motion to Vacate Under Rule 75". Appellant's request to perfect his appeal as a poor person was sustained but no action was taken on appellant's motion under Rule 75. The motion under Rule 75 raised the issue of which appellant now complains that counsel was ineffective in failing to investigate the mental background of Grace Lawton.

The court did not err in failing to take up appellant's pro se "Motion to Vacate Under Rule 75", even if it would have arguably had any merit, because the appellant was still represented by counsel at the time his motion was filed and he has no right to proceed both pro se and through counsel. State v. Harris, 669 S.W.2d 579 (Mo.App.1984).

In his third point in this appeal Lewis argues that it was clearly erroneous for the court to find that he was not denied effective assistance of counsel because of the following: (1) the shortness of time that trial counsel was assigned to his case before trial; (2) the failure of trial counsel or previously assigned public defender to investigate possible evidence that would have impeached Grace Lawton, a key state witness; (3) the failure of trial counsel to move for a continuance; (4) the failure of trial counsel to adequately prepare defense witnesses by warning them not to allude to an inadmissible prior offense of appellant; and (5) the failure of counsel to object to inadmissible evidence at trial.

Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). To overcome this presumption of competency and establish the ineffectiveness of trial counsel, a defendant must show, by a preponderance of the evidence, that his attorney's performance was deficient, and that the deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. at 2064.

An attorney's performance will be deemed deficient if he makes errors so serious as to deprive the defendant of a fair trial, a trial the result of which is reliable. Id. at 687, 104 S.Ct. at 2064. To satisfy the prejudice aspect of this two-part test, the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

In regard to appellant's first three complaints on the shortness of time trial counsel had been assigned to his case, the lack of investigation by the public defender's office and the failure to request a continuance, the record shows that a thorough and exhaustive investigation was conducted on appellant's behalf and that counsel was, as he testified at the 27.26 hearing, thoroughly prepared to try the case.

Appellant's argument that trial counsel's testimony at the 27.26 hearing, as to his preparation and trial strategy, was not reliable and that the court should have believed appellant's testimony that he gave trial counsel leads that were not pursued is of no avail. The Rule 27.26 court determines the credibility of witnesses and the court is not required to believe the defendant's testimony even if no contradictory evidence is offered. Mountjoy v. State, 750 S.W.2d 471 (Mo.App.1988).

Appellant's complaint that trial counsel failed to adequately prepare defense witnesses by warning them not to allude to appellant's prior criminal record centers on the testimony at trial of appellant's stepfather. At trial appellant's stepfather stated, in a non-responsive answer, that appellant had been tried for bank robbery.

At the 27.26 hearing trial counsel testified that he does prepare his witnesses and that the reference to the bank robbery was wholly unexpected and nonresponsive. Just as a lawyer cannot be labeled ineffective because a witness unexpectedly changes his testimony on the witness stand, Mountjoy v. State, supra at 474, he cannot be so labeled when a witness makes an unexpected and nonresponsive answer that contains inadmissible evidence. Furthermore, in light of the fact that the appellant admitted to two prior convictions, including one robbery, during his...