Mannon v. State, 16417

• Decision Date: 10 April 1990
• Docket Number: No. 16417,16417
• Citation: 788 S.W.2d 315
• Parties: William "Pete" MANNON, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 315

788 S.W.2d 315

William "Pete" MANNON, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 16417.

Missouri Court of Appeals,

Southern District,

Division Two.

April 10, 1990.

Motion for Rehearing or Transfer

Denied April 25, 1990.

Janet M. Thompson, Columbia, for movant-appellant.

William L. Webster, Atty. Gen., Frank A. Jung, Asst. Atty. Gen., Jefferson City, for respondent.

HOGAN, Judge.

By information filed in the Circuit Court of Mississippi County, movant William "Pete" Mannon (to whom we shall refer as the defendant) was charged with the commission of second-degree murder on March 1, 1980. A jury found the defendant guilty. His punishment was assessed at imprisonment for a term of 30 years. On appeal the cause was transferred from this court to the Supreme Court, which reversed for instructional error. State v. Mannon, 637 S.W.2d 674 (Mo. banc 1982). On retrial the defendant was again found guilty by a jury. His punishment was assessed at imprisonment for a term of 50 years. On appeal, this court affirmed the judgment of conviction. State v. Mannon, 663 S.W.2d 780 (Mo.App.1983).

Thereafter the defendant filed a motion for post-conviction relief pursuant to former Rule 27.26. The motion court denied relief without an evidentiary hearing. On appeal, this court reversed and remanded with directions to make findings of fact and conclusions of law on all issues presented, as required by former Rule 27.26(i). Mannon v. State, 727 S.W.2d 936, 939 (Mo.App.1987). On remand, counsel was appointed for the defendant and the petition or motion for relief was amended. For one reason or another, disposition of the matter on the merits was postponed for some time.

On April 14, 1989, the trial court made findings of fact and conclusions of law based on the record, but again denied relief without conducting an evidentiary hearing. The defendant has appealed. ¹ We affirm the judgment.

The defendant's assignments of error have been correlated with the trial court's findings of fact and conclusions of law. It may be granted that the findings of fact and conclusions of law are to some degree inaccurate, but the merits of the appeal do not turn upon the correctness of the trial court's findings. Even if the basis for the trial court's denial of relief was incorrect, we must affirm the judgment if it is sustainable on other grounds. State v. Kimes, 415 S.W.2d 814, 815 (Mo.1967); Frederick v. State, 754 S.W.2d 934, 936 (Mo.App.1988); Mercer v. State, 666 S.W.2d 942, 947[9-11] (Mo.App.1984). The defendant's claim for relief is in substantial part that he was denied the effective assistance of counsel. In reviewing a claim of ineffective assistance of counsel, this court must deny relief unless the defendant demonstrates that he was prejudiced even though counsel's performance may have been defective. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Frederick v. State, 754 S.W.2d at 936. Therefore, even though for the purpose of reviewing the dismissal of the defendant's motion we assume the well-pleaded facts to be true, we must also consider the question of prejudice. This consideration involves a determination that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Frederick v. State, 754 S.W.2d at 936. A "reasonable probability" in this context is a probability sufficient to undermine confidence in the outcome. Bannister v. State, 726 S.W.2d 821, 824 (Mo.App.1987), cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987).

Initially two allegations of trial counsel's ineffectiveness are called to our attention. In paragraph 9(f)(vi) and 9(f)(xi) of his amended motion the defendant alleged:

"(vi) Counsel failed to object to hearsay testimony of witnesses including, but not limited to, that of Carl Matheny [sic] and Willis Cox, as the transcript will prove, and the testimony was extremely prejudicial to [defendant] because the testimony was that they heard certain persons say [defendant] had shot the victim but no eye-witness testimony as to who actually shot the victim was presented.

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(xi) Counsel failed to object to police testimony concerning [defendant's] refusal to sign a Statement of Rights or [a] Waiver of Rights and refusal to make a statement upon his arrest. This testimony prejudiced [defendant] in that it left an impression in the minds of the jurors that [defendant] knew his rights and had therefore been through the criminal justice system before this incident."

As to ground 8(f)(vi) of the motion, the trial court found:

"Counsel's failure to object to certain testimony is within that counsel's discretion and trial strategy. The [defendant] fails to state sufficient facts of the testimony not objected to in order to be granted relief. Even if counsel's failure to object to certain hearsay testimony was not an exercise of [that] customary skill and diligence that a reasonably competent attorney would exercise, [defendant] was not prejudiced thereby. Testifying at trial, Mississippi County Sheriff, Norris Grissom, told the jury that the defendant asked police officers who he shot and then stated that he had driven from Arkansas and shot the wrong man. This testimony, taken with all the testimony at trial, would have been enough to convince the jury of [defendant's] guilt."

As to ground 8(f)(xi) of the defendant's amended motion, the trial court found:

"(xi) Counsel's failure to object to police testimony concerning Statement of Rights, or Waiver of Rights did not prejudice [defendant].... In this case, even if counsel was deficient in failing to object to such testimony, the State made an extremely strong case, including [defendant's] admission that he shot the victim. The [defendant] therefore was not prejudiced. McLaurin v. State, 755 S.W.2nd 341, 343 (Mo.App.1988). There [is] no reasonable probability that counsel's failure to object to police testimony of [defendant's] refusal to sign the forms would have altered the trial's result."

The excerpt of the record we have quoted makes it plain that the issue tendered by the defendant's first point is this: Does the record presented to the trial court warrant the conclusion that no prejudice resulted from trial counsel's failure to object to inadmissible evidence? Unless it may be said that but for counsel's failure to object, there is a reasonable probability that the result of the proceeding would have been different, this question must be answered affirmatively.

The State had the evidence of Carl R. Matheney who was present at the Crystal Inn in Charleston when the defendant shot and killed Ricky Brooks. Matheney went to the Crystal Inn between 11:30 and 12 p.m. on February 29, 1980. Matheney left the Crystal Inn with Ricky. The defendant came in the door by which they were leaving. He had his hands in front of him. As the defendant approached Ricky, he "put his hands like that (indicating) and then the shot went off and Ricky fell." It appeared to Matheney that the defendant aimed a handgun at his victim's abdomen. In response to a very general question about "what happened" thereafter, Matheney testified:

"After the shot was fired, Pete [defendant] stood there for a few seconds, then Larry came in.

Q. Larry who?

A. Larry Johnson.

Q. What happened next?

A. Then he said, 'Pete, come on. Let's go.' And Wanda, she stuck her head ---

Q. Wanda who?

A. Wanda Johnson.

Q. All right; what did she say?

A. She stuck her head in the door and Larry told her, 'He done shot him,' and they, Ricky and Pete--I mean Larry and [the defendant]--went back outside." (Emphasis added.)

Counsel for the defendant argues that this testimony was clearly hearsay and highly prejudicial, and trial counsel's failure to object to it demonstrated prejudicial incompetence on counsel's part.

The defendant also calls our attention to the testimony of Willis Cox. Cox, a police officer, was asked about the defendant's conduct when he was taken in custody. Cox testified he took the defendant's arm while he led the defendant to a police car. Cox was afraid the defendant "might try to run or something." Being asked why he was afraid the defendant might "try to run," Cox answered, "[w]ell, all the people that said he had shot this man, and I didn't want him getting away from me." (Emphasis added.) Counsel argues that the statement "all the people ... said he shot this man" is further prejudicial hearsay and trial counsel's failure to object to this statement further demonstrates his incompetence.

It is further contended that on two occasions, the State was permitted to show the defendant's failure to volunteer an exculpatory statement on arrest. It is, of course, true that the State may not use post-arrest silence either as affirmative proof of the defendant's guilt or to impeach his testimony. State v. Mathenia, 702 S.W.2d 840, 842 (Mo. banc), cert. denied, 477 U.S. 909, 106 S.Ct. 3286, 91 L.Ed.2d 574 (1986); State v. Nolan, 595 S.W.2d 54, 56 (Mo.App.1980). In this case, the State's evidence of post-arrest silence was very similar to that discussed in State v. Mathenia, 702 S.W.2d at 841-42. Officer Cox was asked if he had spoken to the defendant after he took the defendant in custody. Cox responded that he had, stating that:

* * * * * * "A. Well, after I got him to the station--I didn't ask him anything until I got him to the station. Placed him under arrest, carried him to the station, read him his rights, and then asked him what happened.

And he just told me that he wouldn't tell me anything; he wouldn't tell me anything.

Q. Didn't make any statement?

A. Didn't make any statement at all to me."

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The State also had the evidence of the Charleston Chief of Police, William Ritchey. Chief Ritchey testified that after the defendant had been taken to the Charleston police station:

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"A. ... I took Mr. Mannon into my office. I...