Maclin v. State
| Decision Date | 07 February 2006 |
| Docket Number | No. 26867.,26867. |
| Citation | 184 S.W.3d 103 |
| Court | Missouri Court of Appeals |
| Parties | Floyd MACLIN, Jr., Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
Mark A. Grothoff, Columbia, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Cecily L. Daller, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
Floyd Maclin, Jr. ("Movant") appeals from an order denying his Rule 29.15 motion requesting post-conviction relief.1 The motion alleged, inter alia, that Movant's trial counsel was ineffective for failing to call a witness at the trial. The motion court concluded otherwise. Movant contends that conclusion is clearly erroneous. We affirm.
In February 2001, Movant was arrested by officers from the Springfield Police Department after he tried to steal liquor from an Albertson's grocery store. Movant was charged with second degree robbery for violating § 569.030.1, which states: "[a] person commits the crime of robbery in the second degree when he forcibly steals property."2 The phrase, "forcibly steals," is defined by § 569.010(1) in the following way:
"Forcibly steals", a person "forcibly steals", and thereby commits robbery, when, in the course of stealing, as defined in section 570.030, RSMo, he uses or threatens the immediate use of physical force upon another person for the purpose of:
(a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
(b) Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft[.]
Stealing occurs when a person "appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion." § 570.030.1. Movant was charged with second degree robbery because he attempted to leave the store with the stolen liquor and was involved in an altercation with four Albertson's employees: Matt Young ("Young"); Jason Lindsay ("Lindsay"); Daryn Davis ("Davis"); and Chad Lawson ("Lawson").
After Movant waived his right to a jury trial, his case was scheduled to be tried to the court in May 2002. A few weeks before the trial, an investigator for Movant's trial counsel contacted Young, Lindsay, Davis and Lawson and asked them to come to the prosecutor's office for an interview. Young, Lindsay and Davis complied with the request and were interviewed by Movant's trial counsel. Lawson did not come to the interview, and Movant's counsel made no further effort to contact him.
At the trial, Young and Lindsay were the only witnesses called by the State to testify about what transpired at the store prior to the arrival of the police. Their trial testimony is summarized below.
On February 4, 2001, Movant entered the Albertson's grocery store in Springfield, Missouri. Young recognized Movant. Young called Lindsay and told him to keep an eye on Movant. To do so, Lindsay went into the front office. This office is an elevated platform, surrounded with one-way glass, standing about eight feet above the floor level of the store. Lawson was already there.
Movant went to the store's liquor department. From the vantage point of the front office, Lindsay saw Movant pick up at least three bottles of Crown Royal and appear to leave the liquor department with the merchandise hidden on his person. Lindsay called Davis, the store manager, and told him what had happened. Lindsay and Lawson then left the front office. Lindsay went to the liquor department and confirmed that the bottles of Crown Royal had not been left there by Movant. Lawson and Young positioned themselves at the store's front doors. They were joined by Lindsay and Davis.
When Movant got to the front doors, he was stopped by Lawson. Davis asked Movant if he needed to pay for anything. Movant said, "no," and denied that he had done anything. He then attempted to leave the store. When Davis put out his arm to block the door, Movant "started to use force to run." He shoved Davis out the door and got onto the parking lot. All four Albertson's employees were trying to grab Movant's arms and get him down on the ground because he was still "[f]ighting pretty hard, still trying to shove [Davis] out of the way, and run." Movant started swinging a Crown Royal bottle and hit Lawson in the forehead. Both Young and Lindsay believed Movant was trying to hit somebody with the bottle. Movant then bit Lindsay's thumb. Lindsay started screaming that Movant "was trying to bite my thumb off. . . ." Davis picked Movant up to get him off balance, and the pair toppled to the ground. Davis sustained a broken ankle in the fall. Lindsay and Young got on top of Movant to hold him down. Lawson went into the store and obtained some handcuffs, but the employees were only able to cuff one of Movant's wrists. Because Movant continued to struggle, Lindsay and Young remained on top of Movant for about five minutes until police arrived.
The State then called the two officers who were sent to the store to investigate this incident: Anthony Gomez ("Officer Gomez") and Kent Bishop ("Officer Bishop"). Officer Gomez testified that when he arrived on the scene, Movant was not fully cuffed and was still resisting. Officer Gomez provided medical assistance to Davis and told Lindsay that he needed to be seen by ambulance personnel. On cross-examination, Officer Gomez admitted that, besides Davis and Lindsay, no other store employee reported being hurt during the struggle. Specifically, "[n]o one came up to [Officer Gomez] and said they were hit in the head with a bottle." During the cross-examination of Officer Bishop, defense counsel established that the officer had interviewed all four Albertson's employees involved in the incident. Only Davis and Lindsay reported being injured. Officer Bishop did not recall anyone saying he had been hit in the head with a bottle. If the officer had received such information it would have been included in his report.
Defendant testified in his own behalf. He admitted that he went to the Albertson's store to steal liquor. Once in the liquor department, he took four bottles of Crown Royal whiskey and hid them inside his shirt. The bulk of the bottles was concealed by a three-quarter length leather coat Movant was also wearing. He also admitted that, until he attempted to leave the store, he was not touched by any Albertson's employee. The gist of Movant's testimony was that he had intended to cooperate when he was caught stealing and only fought with Albertson's employees because they attacked him first. On cross-examination, Movant gave the following testimony:
Q. And during this time [when Movant was biting Lindsay's thumb] you were trying to give up, I assume, right?
A. I never struggled with these gentlemen with the exception of biting that gentleman who was trying to twist my neck.
Q. How about swinging the bottle of Crown Royal at someone?
A. Well, that's interesting because those Crown Royal bottles are pretty thick. They have strings attached to them.
Q. Yes, they do.
A. If I was to swing them over my head with four people surrounding —
Q. Just answer my question.
A. Absolutely not.
Q. You didn't?
A. No sir.
Q. So those two gentlemen [Young and Lindsay] who got up there earlier lied?
A. I would say they are mistaken, sir.
In closing argument, Movant's trial counsel noted that the State had only called two of the four Albertson's employees involved in this incident. After pointing out various contradictions and inconsistencies in their testimony, counsel then made the following argument:
We also heard stories from [Young and Lindsay] that there was the flailing of this bottle, this huge heavy bottle, spinning around trying to hit somebody in the head and did hit Chad Lawson in the forehead while it's being swung around. It seems a little unbelievable especially when we hear from the police officers that reported to the scene talking to all of the individuals involved, no mention. No mention at all about this person being whacked in the head with a full Crown Royal bottle and being thrown to the ground. No mention of it at all by any of them. Not then, but all of a sudden now that's part of the story.
At the conclusion of the trial, the judge found Movant guilty of second degree robbery because the State had "quite easily" met its burden of proving each element of the crime beyond a reasonable doubt. Movant received a 12-year sentence. We affirmed the conviction and sentence on direct appeal in State v. Maclin, 113 S.W.3d 304 (Mo.App.2003).
Movant then filed a Rule 29.15 motion to vacate, set aside or correct judgment or sentence. New counsel was appointed, and an amended motion was filed. In Movant's amended motion, he alleged, inter alia, that trial counsel was ineffective because he failed to call Lawson as a witness. In January 2005, an evidentiary hearing was held on Movant's amended motion. The judge assigned to rule on the motion was the same one who had served as the trier-of-fact at Movant's trial. At the motion hearing, the court heard testimony from Movant, his trial counsel and Lawson. The relevant portions of their testimony are summarized below.
Movant was asked why he alleged that his trial attorney was ineffective for failing to call Lawson as a witness. Movant said he wanted Lawson to testify because "he was the one that allegedly was struck in the head with the Crown Royal bottle, and I was hoping to get his testimony to refute that."
Movant's trial counsel testified that he might have wanted to refute Young's testimony about Movant swinging the bottle and hitting Lawson "[i]f I had a definite way of doing that. . . ." Counsel noted, however, that Lawson did not show up for the pre-trial interviews conducted at the prosecutor's office. Counsel had...
To continue reading
Request your trial
-
United States v. Bell
...a single indivisible crime containing two generic elements: “stealing and the use of actual or threatened force.” Maclin v. State, 184 S.W.3d 103, 109 (Mo. Ct. App. 2006) ; see also Hughes v. State, 204 S.W.3d 376, 381 (Mo. Ct. App. 2006).2 At first blush, then, it appears as though Bell's ......
-
Hughes v. State
...crime of second degree robbery is composed of two elements: stealing and the use of actual or threatened force." Maclin v. State, 184 S.W.3d 103, 109 (Mo.App. 2006); § 569.030; § The gist of Hughes' argument on appeal is that the events allegedly depicted on the videotape would have provide......
-
Placke v. State
...for not calling a witness who would contradict the defendant's testimony or undermine the theory of defense. Maclin v. State, 184 S.W.3d 103, 110 (Mo.App.2006). Clearly, “ ‘[c]ounsel may and often does elect not to call a witness because he judges the witness's testimony will not be helpful......
-
Hudson v. State, ED 106162
...of Movant’s booking photo, taken after the interview, which showed no blood or open cuts on Movant’s face. See Maclin v. State , 184 S.W.3d 103, 109 (Mo. App. S.D. 2006) (finding no ineffective assistance of counsel where witness testimony would not have unqualifiedly supported the movant’s......