Lytle v. State, WD

• Decision Date: 27 December 1988
• Docket Number: No. WD,WD
• Citation: 762 S.W.2d 830
• Parties: Roger LYTLE, Appellant, v. STATE of Missouri, Respondent. 40600.
• Court: Missouri Court of Appeals

Page 830

762 S.W.2d 830

Roger LYTLE, Appellant, v. STATE of Missouri, Respondent.

No. WD 40600.

Missouri Court of Appeals,

Western District.

Dec. 27, 1988.

Melinda K. Pendergraph, Nancy A. McKerrow., Columbia, for appellant.

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

Before FENNER, P.J., and MANFORD and GAITAN, JJ.

FENNER, Presiding Judge.

Appellant, Roger Lytle, appeals the denial of his Rule 27.26 (now repealed) motion for post conviction relief. Appellant was convicted after trial by jury of two counts of selling a controlled substance, in violation of § 195.017.2(4)(j), RSMo 1978 and § 195.020.1, RSMo Supp.1984. After his conviction was upheld on appeal, State v. Lytle, 725 S.W.2d 141 (Mo.App.1987), Lytle sought post conviction relief under former Rule 27.26. His post conviction relief under Rule 27.26 was denied after hearing.

In this appeal, Lytle alleges the trial court erred in denying his motion for post conviction relief. Lytle argues he was denied his right to effective assistance of counsel in violation of the Sixth and Fourteenth amendments to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution, in that his trial counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under the same or similar circumstances. Lytle cites five separate examples, each of which he argues constitute ineffective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, the defendant must show that his attorney (1) failed to provide reasonably effective assistance; and (2) that the defendant was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

I. CLOSING ARGUMENT

Lytle argues first that counsel was ineffective by conceding, in closing argument that he was guilty of Count I. In this regard Lytle refers to the following statement by his trial counsel in closing argument:

"There's no use my trying to deceive you. There's no use my trying to say Roger didn't sell the marijuana because he did. Corporal James testified. I have no reason not to believe him."

Appellant takes this statement out of context and when viewed in context counsel did not in fact concede appellant's guilt. The final sentence of the above quoted paragraph was "But you have to think about the background of that transaction."

Counsel then went on to argue at great length that Lytle had no intent to sell the marijuana, and that any crime was created by the overreaching of the highway patrol who, he maintained, were adept at turning ordinary citizens into criminals. Appellant's counsel argued that the highway patrol had Lytle convicted before they even knew who he was and added:

"On Count I, sure that sale was made in his house, but not at his request and not at his initative. [sic] So you have to deal with that in a way that you think is fair.

What, what was his motive? What was the intent? Roger didn't have any intent. He was sitting in a house. He was minding his business. He didn't even know any of these guys and they turn up in their disguises and put the heat on him."

Counsel further argued that this was all set up by some informant who was trying to save himself and that the offense was all manufactured by the law enforcement authorities. Counsel did not concede the appellant's guilt as to Count I, or urge the jury to return a verdict of guilty against him. On the contrary, he conceded only that a sale had occurred at the appellant's house--facts that were undisputed. Counsel was arguing that the appellant had no criminal intent, no motive and no interest in committing any crimes, which, he argues, were wholly manufactured by the conduct of the highway patrol.

At the hearing on Lytle's Rule 27.26 motion, his trial counsel gave an explanation for the complained of statement which is quoted verbatim from the transcript as follows:

"That was not done out of negligence or dereliction it was done by design. There was no argument that the sale was made and that Roger was there when it was made. The focus of my closing argument was that it was not something he wanted to do. I think pretty much as he testified, ¹ he said, Well, they came in and I told them where it was and they left the money and my argument to the jury was, if it was a sale it was certainly a backward sale and one initiated and coordinated by the highway patrol and not Roger and that was the thrust of what I was trying to present to the jury."

Allegations of ineffective assistance relating to matters of trial strategy do not provide a basis for post-conviction relief. Camillo v. State, 757 S.W.2d 234, 238 (Mo.App.1988). A defendant is bound by the decisions of his attorney as to the management of the trial and as to the stipulations which give effect to that strategy. State v. Johnson, 714 S.W.2d 752, 765 (Mo.App.1986).

In making such tactical decisions, there exists a strong presumption that counsel was effective, and it will be the rare exception where a strategic choice is declared to have been so unsound as to amount to ineffectiveness. Porter v. State, 682 S.W.2d 16, 19 (Mo.App.1984).

The undisputed facts at trial relevant to Count I, and the portion of counsel's argument in relation thereto, of which Lytle now complains, are significant to explain counsel's strategy. There was no dispute at trial but that an undercover narcotics officer of the Missouri Highway Patrol went to a residence in the company of an informant to attempt to purchase marijuana. Lytle met the undercover officer and his informant at the front door of the residence and let them in the house. The officer inquired about purchasing some marijuana and Lytle led him to a back bedroom where Lytle showed him several bags of marijuana. A conversation was had between Lytle and the officer. Lytle agreed to sell, and the officer agreed to purchase, a pound of marijuana for $650.00. Lytle took the money and gave the officer what was identified by a chemist, employed by the Missouri Highway Patrol, as having been analyzed and determined to be marijuana.

Counsel was confronted with a situation in the case at bar that left him with few choices and his strategy was to concede certain of the facts that could not be disputed in an obvious attempt to establish credibility for the position that his client had been set up and was the victim of overreaching by the highway patrol.

Lytle's claim of ineffective assistance of counsel alleging that counsel conceded his guilt in closing argument is denied.

II. SHACKLING

Lytle argues next that counsel was ineffective for allowing him to be shackled with handcuffs and a waist chain in front of the jury during trial.

Generally the use of restraints for the purpose of maintaining order and security in the courtroom is a matter within the discretion of the trial court. State v. Methfessel, 718 S.W.2d 534, 537 (Mo.App.1986). Nevertheless, the defendant is entitled to appear before the jury unfettered unless for good cause. State v. Gilmore, 661 S.W.2d 519, 525 (Mo.banc 1983). Furthermore, security measures, not supported by good cause, can be grounds for a new trial if they are such as to prejudice the defendant before the jury. See, State v. Borman, 529 S.W.2d 192, 195-196 (Mo.App.1975). The relevant determination is whether or not the defendant is prejudiced before the jury by the security measures employed.

The trial of the case at bar was a relatively short proceeding that was submitted to the jury at 2:53 p.m. on the same day that the jury was picked and sworn. Lytle did not testify at trial and was seated at counsel table during the entire proceeding. The foreman of the jury testified at the 27.26 hearing that he did not observe Lytle in any type of restraints at trial and that none of the other jurors mentioned Lytle being in restraints.

Where the record is devoid of any proof that the jurors actually saw the defendant in any restraints, an appellant court will not speculate as to whether they did. State v. Beal, 470 S.W.2d 509, 516 (Mo.banc 1971).

The only evidence that Lytle was able to offer at his 27.26 hearing in an effort to show that he was prejudiced by the jury observing him in restraints was when he left the courtroom through the backdoor to the smoke area. Lytle testified at the 27.26 hearing that "there was a bunch of people out there, quite a few" and that he recognized some of them "as being in here and sitting in the jury box and being chosen back and forth." However, even assuming this testimony to be true and further assuming that the testimony supports the proposition that one or more of the individuals finally chosen to serve as a juror in Lytle's trial saw him leave the courtroom in restraints this would not be sufficient to show prejudice. It is recognized under the law that it is a normal and regular as well as a highly desirable and necessary practice to handcuff prisoners when they are being taken from one place to another and juries are aware of this practice. State v. Hankins, 642 S.W.2d 606, 610 (Mo.1982).

Lytle has failed to establish prejudice, the second prong of the test for a showing of ineffective assistance of counsel, as set forth in Strickland v. Washington, supra.

III. JOINDER

In his third point in this appeal Lytle argues that his trial counsel was ineffective for failing to request a severance of the two counts of selling marijuana with which he was charged. Lytle argues that the two counts occurred more than three months apart, at different locations and that under Count I he was charged as acting alone while under Count II he was charged as an accomplice.

Pursuant to § 545.140.2, RSMo 1986, a defendant may be charged in the same indictment or information with separate offenses if they "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected...