Meade v. State, 55568
| Decision Date | 19 September 1989 |
| Docket Number | No. 55568,55568 |
| Citation | 779 S.W.2d 659 |
| Parties | William Wayne MEADE, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Ilene A. Goodman, St. Louis, for appellant.
William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.
Movant, William Meade, appeals from the denial of his Rule 27.26 motion after an evidentiary hearing. Movant was convicted by a jury of two counts of sodomy for which he was sentenced as a persistent sexual offender to two consecutive thirty (30) year terms of imprisonment. This court affirmed the conviction on direct appeal. State v. Meade, 736 S.W.2d 473 (Mo.App., E.D.1987). In his Rule 27.26 motion, movant alleged ineffective assistance of counsel. On appeal, movant argues that the motion court findings and conclusions were clearly erroneous. We affirm.
Initially, we note the standard of review employed in evaluating movant's claim. Our determination is limited to whether the findings, conclusions and judgment of the motion court are clearly erroneous. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Rule 27.26(j). The motion court's findings and conclusions are clearly erroneous if a review of the entire record leaves this court with a definite and firm impression that a mistake has been made. Richardson v. State, 719 S.W.2d 912, 915 (Mo.App., E.D.1986). In order to prove ineffective assistance of counsel, movant must show not only that trial counsel's performance failed to rise to the level of reasonable professional standards, but also that the alleged ineffective assistance affected the trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Bradford v. State, 735 S.W.2d 118, 120 (Mo.App., E.D.1987).
Movant's first claim of error is the motion court's finding that his counsel was not ineffective in denying movant the right to be present and be consulted during the exercise of peremptory challenges. Movant testified at his hearing that he was present during the entire voir dire examination but that counsel never discussed with him which prospective venireman he wished to challenge. Movant's defense counsel, however, testified that he had gone over the list of jurors with the movant as well as discussing who he recommended they take and why. "The hearing court is entitled to disbelieve the testimony of the movant even if no contrary evidence is presented." Fullerton v. State, 750 S.W.2d 484, 487 (Mo.App., W.D.1988). The motion court found that the movant's counsel had consulted with the appellant on prospective challenges and we hold this finding is not clearly erroneous.
Next the movant claims that counsel was ineffective in failing to request a mistrial when one of the victims became "hysterical and upset on the witness stand." According to movant's defense counsel, the victim, an eleven year old male with multiple sclerosis and a speech impediment, refused to look at the defendant when asked to make an identification. Movant's counsel objected because he believed an improper identification had been made of the movant. When pressed by the prosecuting attorney to look at the movant, the victim began crying and became hysterical. The court immediately declared a recess. When the victim returned he properly identified the witness without incident. 1
In determining ineffective assistance of counsel, a motion court and this court may proceed directly to the issue of prejudice without first determining whether counsel's conduct was deficient. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069-70, 80 L.Ed.2d 674 (1984); Davis v. State, 748 S.W.2d 698, 700 (Mo.App., E.D.1988). Where it is alleged that counsel was deficient in failing to ask for a mistrial, this prejudice must go beyond a mere error or mistake in trial strategy or judgment and be of such character as to result in a substantial deprivation of the right to a fair trial. McConnell v. State, 530 S.W.2d 43, 44 (Mo.App., W.D.1975). This can be demonstrated by showing that, under the circumstances, a mistrial would have been granted by the court had it been requested by counsel. Newman v. State, 751 S.W.2d 93, 101 (Mo.App., S.D.1988). The current case does not support such a finding.
In State v. Johnson, 672 S.W.2d 160 (Mo.App., E.D.1984) the defendant was charged with capital murder. The first witness of the state was the murder victim's daughter who had been present when the crime was committed. While testifying, the daughter became hysterical. The court immediately called a recess. The court denied a motion for a mistrial by defense counsel and this court affirmed stating: ...
To continue reading
Request your trial
-
State v. DuBose, No. 61573-4-I (Wash. App. 5/3/2010)
...cases he points to involving "hysterical" witness conduct, the courts found a mistrial was unwarranted. See, e.g., Meade v. State, 779 S.W.2d 659, 660 (Mo. App. Ct. 1989) (defense counsel not ineffective for failure to move for mistrial after 11-year-old witness-victim "began crying and bec......
-
Myszka v. State
...State v. Lay, 896 S.W.2d 693, 701 (Mo. App. W.D. 1995); State v. Landers, 969 S.W.2d 808, 812 (Mo. App. W.D. 1998); Meade v. State, 779 S.W.2d 659, 660 (Mo. App. E.D. 1989). A judgment is clearly erroneous when, in light of the entire record, "the reviewing court is left with the definite a......
-
Ham v. State
...State v. Lay, 896 S.W.2d 693, 701 (Mo. App. W.D. 1995); State v. Landers, 969 S.W.2d 808, 812 (Mo. App. W.D. 1998); Meade v. State, 779 S.W.2d 659, 660 (Mo. App. E.D. 1989). A judgment is clearly erroneous when, in view of the entire record, "the reviewing court is left with the definite an......
-
Newlon v. Villmer
...State v. demons, 946 S.W. 2d 206, 231 (Mo. banc 1997); State v. Light, 871 S.W. 2d 59, 63 (Mo. App. E.D. 1994); Meade v. State, 779 S.W. 2d 659, 661 (Mo. App. 1989).Movant presented no evidence with regard to this claim and the Court does not believe the record supports any finding of coerc......