Mills v. State

• Citation: 757 S.W.2d 630
• Decision Date: 12 July 1988
• Docket Number: No. 53799,53799
• Parties: Ricky MILLS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 630

757 S.W.2d 630

Ricky MILLS, Appellant, v. STATE of Missouri, Respondent.

No. 53799.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 12, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 31, 1988.

Application to Transfer Denied Oct. 18, 1988.

Ilene A. Goodman, St. Louis, for appellant.

William Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Presiding Judge.

Movant re-appeals denial of post-conviction relief under former Rule 27.26. Movant's original appeal resulted in a remand for an evidentiary hearing. Mills v. State, 723 S.W.2d 71 (Mo.App.1986). Movant sought relief from consecutive sentences on five counts of armed robbery for the robbery of five patrons at the Peach Pit Tavern.

The direct appeal following jury trial, conviction and sentences was decided in State v. Mills, 671 S.W.2d 437 (Mo.App.1984). The state offered evidence to prove defendant's guilt on the charged crimes consisting of: (1) two eyewitnesses who identified defendant; (2) a spontaneous statement made by the defendant to the arresting officer, "You've got me this time"; (3) recovery by the police at the scene of arrest of wallets and items of identification belonging to the victims; and, (4) testimony of Nicholas Paul Connell that prior to the date of the robbery he saw defendant in possession of nylon masks and a chrome derringer, implements used in the robbery. An arresting officer observed defendant attempt to dispose of the chrome derringer. The eyewitness testimony, possession of the stolen items, and the admission by defendant were direct evidence of guilt. Proof of the crimes and defendant's culpability did not depend solely upon the circumstantial evidence derived from the testimony of Nicholas Paul Connell.

Before the first appeal a motion court made findings of fact and conclusions of law and denied relief requested in a first amended motion for post-conviction relief. We were required by previous decisions to remand for further proceedings. We offered movant an opportunity to amend his first amended motion. Movant filed a second amended motion incorporating the allegations in the first amended motion and alleging further factual claims. The court held an evidentiary hearing. It considered testimony of movant, movant's trial counsel and the trial prosecuting attorney. We review findings of fact, conclusions of law and a judgment denying relief.

Movant first claims that the motion court failed to follow the mandate of Rule 27.26(i) which requires findings of fact on all well pleaded issues. Specifically, movant claims the court failed to rule on allegation four, that he was denied effective assistance of counsel because his attorney also represented codefendant Austin Gamble. Movant contends the motion court failed to rule on that allegation except by adopting findings of fact entered by the original motion judge who denied post-conviction relief before the first appeal. The original findings decided appellant was not prejudiced by any conflict of interest. By adopting that finding the court has responded to the allegations. All Rule 27.26(i) requires is findings of fact which permit meaningful appellate review. McCoy v. State, 610 S.W.2d 708, 709 (Mo.App.1981). No particular pattern or form is prescribed. The motion court adopted the findings of the prior judge in the same manner that movant adopted the allegations made in the first amended motion in his second amended motion. Accordingly, the motion court found, by reference, movant was not prejudiced by any conflict of interest when his attorney represented the codefendant. The record is sufficient to permit review of the finding.

The circumstances resulting in dual representation support the finding. Defendant's trial counsel was retained by his family. Defendant offered the court a negotiated plea. In that connection codefendant Austin Gamble requested movant's counsel to also represent him when entering a plea of guilty to the charges. Subsequently, movant was permitted to withdraw his pleas of guilty. The codefendant did not testify at movant's trial. Movant cannot successfully claim prejudice for failure of his counsel to call the codefendant, who admitted participating in the crimes with defendant. Accordingly, the possibility of a conflict of interest is not established as an actual conflict. Movant cannot and did not show any actual prejudice resulting from a conflict of interest. The findings of fact of the motion court were responsive to this claim of ineffective assistance of counsel. Based upon these facts dual representation did not affect the adequacy of representation. In the absence of prejudice the ruling of the motion court was correct. Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979).

Movant's second point is that the conflict of interest, if the court made the finding required by Rule 27.26(i), requires a new trial. This claim fails because movant did not and cannot show actual prejudice resulting from representation of movant and the codefendant for the limited purpose of the plea of guilty by codefendant. "Although [dual representation] often raises the potential of a conflict of interest, a dual representation does not as a matter of law establish ineffective assistance of counsel." Harris v. State, 609 S.W.2d 723, 724 (Mo.App.1980). In the absence of a claim and proof of an actual conflict resulting from prejudice to movant's rights, dual representation of a codefendant does not require a new trial. Defendant is entitled to faithful service and undivided loyalty from counsel. Douglas v. State, 630 S.W.2d 162, 164 (Mo.App.1982). Movant has not alleged and has not proven that representation of his codefendant by his counsel, only at a plea hearing associated with movant's plea hearing, deprived movant of undivided loyalty on the part of his attorney. Point denied.

Movant next claims that his counsel was ineffective for failure to object during trial to the identification testimony of two eyewitnesses. Movant's counsel opined that it was sufficient to rely upon his pre-trial motion to suppress this evidence. The motion was denied before trial. The basis of the motion was that the police told the witnesses before a lineup that they had "caught the robbers." Trial counsel believed the pretrial motion to suppress was adequate to preserve the claim of error. Clearly, the failure to object to the identification testimony when first offered during trial failed to preserve the issue. State v. Mills, 735 S.W.2d 197, 200 (Mo.App.1987). The testimony of movant's counsel on this point indicates counsel's misunderstanding of the law. The identification question was not preserved as a claim of error. The error lingered during movant's direct appeal when his trial counsel was appointed to handle the appeal. No error relating to suggestive pretrial procedures or admission of testimony of eyewitnesses was argued on appeal.

Movant has proven error. However, movant must also show a reasonable probability that, but for counsel's unprofessional error, the results of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A failure to object to testimony may be, at most, trial error which does not warrant post-conviction relief. Gant v. State, 577 S.W.2d 142, 143 (Mo.App.1979); State v. Morris, 591 S.W.2d 165, 169 (Mo.App.1979). The burden of establishing a reasonable probability of a...