Moore v. State

Decision Date15 August 2000
Citation28 S.W.3d 389
Parties(Mo.App. S.D. 2000) Gerald W. Moore, Movant/Appellant, v. State of Missouri, Respondent. 23234 0
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Greene County, Hon. Henry W. Westbrooke

Counsel for Appellant: Emmett D. Queener

Counsel for Respondent: Adriane D. Crouse

Opinion Summary: None

Shrum and Montgomery, JJ., concur.

John E. Parrish, Presiding Judge

Gerald W. Moore (movant) appeals the denial of a Rule 29.15 motion directed to his conviction for possession of a controlled substance. See State v. Moore, 972 S.W.2d 658 (Mo.App. 1998). Movant filed a pro se motion. Counsel was appointed and an amended motion filed. The motion was denied after an evidentiary hearing. This court affirms.

One of the grounds raised in movant's amended motion was a claim that he received ineffective assistance of counsel in the underlying criminal case. Movant alleged that the attorney who represented him in his criminal case "failed to exercise the customary skill and diligence that a reasonably competent attorney would have exercised under similar circumstances"; that, as a result thereof, he was prejudiced. Movant alleged his defense counsel was ineffective for failing to call David Jeffrey Adams as a witness at the suppression hearing and at trial.

To prevail on his claim of ineffective assistance of counsel, movant must have proven, by a preponderance of evidence, that his trial counsel's performance was deficient and that the deficient performance prejudiced the outcome in his case (as opposed to showing the deficient performance had some conceivable effect on the outcome). Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

A movant "must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim." Sanders v. State, [738 S.W.2d 856, 857 (Mo. banc 1987)], (emphasis in original). However, a court need not determine the performance component of the test before examining for prejudice. Id.; State v. Woods, 861 S.W.2d 326, 333 (Mo.App.1993). Further, after a plea of guilty, ineffective assistance of counsel is relevant only to the extent it affects the voluntariness of the plea. Wesson v. State, 768 S.W.2d 160, 162 (Mo.App.1989); Armour v. State, 741 S.W.2d 683, 688 (Mo.App.1987).

Reece v. State, 891 S.W.2d 863, 866 (Mo.App. 1995).

The facts concerning movant's arrest are set out in the opinion from movant's direct appeal. Movant is referred to as "Defendant" in that opinion.

On January 28, 1997, Springfield police officers Corporal Mark Deeds and Corporal James McCulloch went to 908 West State Street to look for Van Johnson, a burglary suspect. Upon arriving at this house, they first knocked on the front door. Thereon, David J. Adams came around the west side of the house. After questioning Adams, Deeds asked if he and McCullough [sic] could "go into the basement and look to ensure that Van Johnson was not there." Adams responded they "could." Adams then opened the basement door and "let [Deeds and McCulloch] in."

As Adams walked down the stairway, followed by the policemen, Deeds heard someone say, "Who is it?" Adams answered, "Popo[,]" a phrase explained as a "common slang term . . . used in the street to refer to police." At that time, Deeds saw Defendant in the basement, standing against a ledge, with an object in his hand. He (Deeds) immediately recognized the object as a crack pipe. Deeds testified that as soon as Defendant "saw someone else was behind . . . Adams, he [Defendant] threw the [pipe] over his shoulder, up on this ledge in the basement." Deeds then retrieved the pipe, placed Defendant under arrest, and "searched his person incident to arrest." Upon his search of Defendant, Deeds found and seized a plastic bag of material that was later confirmed to be crack cocaine.

State v. Moore, 972 S.W.2d at 660.

In this appeal, movant argues his trial attorney was deficient in failing to adequately investigate and failing to call David Adams as a witness with respect to...

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3 cases
  • Brady v. Rossotti
    • United States
    • Missouri Court of Appeals
    • August 8, 2002
    ... ... Charles O. ROSSOTTI, Commissioner, Internal Revenue Service; Quentin Wilson, Director of Revenue, State of Missouri; Kari Brady, an individual; and Community Bank of the Ozarks, a corporation, Respondents ... No. 24818 ... Missouri Court of Appeals, ... ...
  • Waters v. State
    • United States
    • Missouri Court of Appeals
    • March 16, 2004
    ...court need not address the performance prong of the test for effectiveness of counsel before examining for prejudice. Moore v. State, 28 S.W.3d 389, 390 (Mo.App.2000). Failure to prove either prong is fatal to a claim of ineffective assistance. The motion court did not believe movant's argu......
  • Norville v. State, 24485.
    • United States
    • Missouri Court of Appeals
    • August 28, 2002
    ...satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim.'" Moore v. State, 28 S.W.3d 389, 390 (Mo.App.2000), quoting Sanders v. State, supra. Appellate review of the denial of a claim for post-conviction relief is limited to determ......

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