Molasky v. State, 49592

• Decision Date: 25 March 1986
• Docket Number: No. 49592,49592
• Citation: 710 S.W.2d 875
• Parties: Mark MOLASKY, Movant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 875

710 S.W.2d 875

Mark MOLASKY, Movant, v. STATE of Missouri, Respondent.

No. 49592.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 25, 1986.

Motion for Rehearing and/or Transfer

Denied April 22, 1986.

Application to Transfer Denied

June 17, 1986.

Cyril Mehrle Hendricks, Jefferson City, for movant.

John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.

PUDLOWSKI, Judge.

Mark Molasky, movant, appeals from the trial court's order denying his motion to vacate judgment and sentence pursuant to Rule 27.26. We affirm.

On March 5, 1982, the jury found the movant guilty of rape, Section 566.030, RSMo 1978; three counts of sodomy, Section 566.060, RSMo 1978; and abuse of a child, Section 568.060, RSMo 1978. On May 25, 1982, the trial court sentenced the movant to thirty-two years imprisonment. This judgment was affirmed in State v. Molasky, 655 S.W.2d 663 (Mo.App.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 727, 79 L.Ed.2d 187 (1984).

On appeal, the movant raises nine points: (1) the movant's convictions on the five counts constituted double jeopardy; (2) the reviewing court improperly viewed Exhibit I-A because it was not properly identified or the same exhibit presented at trial; (3) the trial court expressed prejudice and bias toward the movant; (4) the movant was denied effective assistance of counsel; (5) the movant was unable to assist his defense due to his psychological state and treatment with drugs pending and during trial; (6) the movant was given cruel and unusual punishment; (7) the movant was denied assistance of counsel at a critical stage of the trial when the trial court responded to questions from the jury outside the presence of counsel; (8) the movant was denied due process of law when the fourth amended information was amended on the last day of trial; and (9) the movant was denied due process when the reviewing court did not allow him to call certain witnesses.

Our review is limited to a determination whether the reviewing court's findings, conclusions, and judgment were clearly erroneous. Rule 27.26(j). Credibility of the witnesses is deferred to the trial court and its findings, conclusions, and judgment will not be held clearly erroneous unless we are firmly convinced that a mistake was made. King v. State, 639 S.W.2d 396, 397 (Mo.App.1982).

In his first point, the movant asserts that the reviewing court erred in denying his motion for post-conviction relief because his convictions on the five counts as charged constituted double jeopardy. We disagree. The movant did not raise the claim of double jeopardy at trial, in his motion for a new trial, or on direct appeal. He may raise double jeopardy for the first time in a Rule 27.26 motion only where the evidence shows that the movant unintentionally failed to raise the claim earlier. Williams v. State, 646 S.W.2d 848, 849 (Mo.App.1982).

In the present case, the issue of double jeopardy was deliberately bypassed. From his testimony at the Rule 27.26 hearing, it is evident that the movant's trial counsel first considered and then abandoned the issue of double jeopardy. At the hearing, the movant's counsel stated that he must have discussed the defense of double jeopardy In his second point, the movant contends he was erroneously denied post-conviction relief because the reviewing court improperly viewed State's Exhibit I-A when the exhibit was not the same one presented at trial and never properly qualified or identified. We disagree.

                with the movant.  He further testified that he doubted whether there was a double jeopardy problem because, as he understood the indictment, "it was based on different acts that occurred separated by point in time."   As such, the movant's counsel believed that "each count was in fact supported by some evidence."
                

At the time of the movant's Rule 27.26 hearing, the state could not locate Exhibit # 1. Exhibit # 1 was a videotape made by the movant and depicted his fiancee and his three year old son from a prior marriage engaging in sexual relations. During trial, the movant admitted the authenticity of Exhibit # 1. Molasky, 655 S.W.2d at 667. His expert medical witnesses relied upon the tape when they testified at trial. Id. His trial counsel also admitted to the jury that the defense did not deny the videotape or the acts it recorded. Id. In addition, Exhibit # 1 was verified by a videotape expert who said it was an original tape produced on a common home videocassette recorder and that it had not been edited in any way. Id. at 668.

At the movant's evidentiary hearing, the reviewing court did not err in admitting State's Exhibit I-A, a copy of Exhibit # 1, into evidence over the movant's objection. Where an original has been lost or destroyed, proof in secondary form is generally admissible where shown to be trustworthy. Scrivner v. American Car & Foundry Co., 330 Mo. 408, 50 S.W.2d 1001 (banc 1932). The correctness of a copy may be proved by the testimony of a person who has compared the copy with the original and found it to be correct. Id. 50 S.W.2d at 1009. In Allen v. State, 146 Ga.App. 815, 247 S.E.2d 540, 541-542 (1978), the Georgia Court of Appeals held that a proper foundation was laid for the admission of a videotape where the police officer who made the recording testified that he had viewed the copy shown to the jury and that it completely and accurately duplicated the original.

In the present case, a sufficient foundation for the introduction of Exhibit I-A was provided. Richard Koenig, an investigator with the St. Louis County Prosecuting Attorney's Office, testified that he had seen both Exhibit # 1 and Exhibit I-A. He stated that the copy was an "exact duplicate" of the excerpt of Exhibit # 1 which was played at the movant's trial. Thomas Cotter, an associate of the movant's trial counsel, also screened both Exhibit # 1 and Exhibit I-A and testified that the copy was in fact a "duplicate" of the original. Furthermore, Richard Barry, the prosecuting attorney who tried the movant, also viewed both Exhibit I-A and Exhibit # 1 and considered them to be substantially the same.

In his third point, the movant argues he was denied due process of law because Judge Ruddy, the judge presiding at his trial, expressed prejudice and bias. He contends Judge Ruddy should have disqualified himself sua sponte because the judge previously ruled adversely against the movant and earlier recused himself from one of the movant's divorce proceedings. He further argues that remarks made by Judge Ruddy following the movant's sentencing which expressed the judge's belief that the movant was a liar further demonstrated the judge's bias and prejudice. We disagree.

Where a judge's freedom from bias or prejudice becomes an issue, our inquiry is not whether the judge was actually prejudiced but whether an onlooker might on the basis of objective facts reasonably question whether the judge was so. State v. Lovelady, 691 S.W.2d 364, 365 (Mo.App.1985). However, once a defendant has been afforded one change of judge under Rule 32.09, the successor judge is under a duty to remain as judge in the cause and this duty is equally as strong as his duty to recuse himself under circumstances requiring it. State v. Hindman, 543 S.W.2d 278, 283 (Mo.App.1976).

This point does not concern the disqualification of Judge Ruddy by motion because the movant already disqualified one judge and was not entitled to disqualify another one as a matter of right. Rule 32.09. During his trial no attempt was made to disqualify Judge Ruddy. Before trial, the movant's trial attorney went to the judge and told him that his client had some concern whether he could have a fair hearing before him. Following his discussion with Judge Ruddy, the movant's attorney was "absolutely convinced" that the movant would receive a fair trial. The attorney discussed this with the movant and his parents and they agreed to try the case before the judge.

Further, the movant's argument that Judge Ruddy was biased and prejudiced against him because of prior adverse rulings and an earlier recusal is without merit. Our review of the record reveals no support for the movant's allegations of bias. Mere adverse rulings and previous contacts in other litigated matters do not form the basis for such a claim. State v. Tyler, 622 S.W.2d 379, 385 (Mo.App.1981).

Nor did Judge Ruddy's remarks to a newsreporter demonstrate bias and prejudice. The judge was under as strong a duty to preside over the case as he was to recuse himself because the movant had already been granted one change of judge. Hindman, 543 S.W.2d at 283. His comments were made after the movant's sentencing and referred to events unrelated to the crimes sub judice. In June 1982 in response to a reporter's questioning, Judge Ruddy answered that he had recused himself from the movant's divorce case several years earlier because he thought the movant was a liar. Although the judge's comments indicated that he had formed an opinion on the movant's credibility at the time of the movant's divorce proceeding, no evidence was presented that this was a fixed opinion or one held by the judge during the movant's trial. Cf. Lovelady, 691 S.W.2d at 367. As already shown, this was a case where Judge Ruddy assured the movant's counsel that the movant would receive a fair hearing. It was also a jury tried case where the movant did not testify and the judge's opinion of the movant's veracity would have been of no consequence.

In his fourth point, the movant contends that he was denied effective assistance of counsel. We disagree. Our review of effective assistance of counsel is guided by whether the movant's attorney acted with that degree of care and skill of a reasonably competent lawyer rendering similar services under like circumstances. Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979). For a successful claim, the movant "must show that there is a reasonable probability that,...