Mooring v. State, 57516

• Decision Date: 12 November 1973
• Docket Number: No. 57516,No. 1,57516,1
• Parties: Charles Marvell MOORING, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 7

501 S.W.2d 7

Charles Marvell MOORING, Appellant, v. STATE of Missouri, Respondent.

No. 57516.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1973.

Joseph R. Aubuchon, Asst. Public Defender, Clayton, for appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Commissioner.

Appeal (taken prior to January 1, 1972) from denial, after evidentiary hearing, of motion under Rule 27.26, V.A.M.R., to vacate and set aside judgment of conviction of rape.

Charles Marvell Mooring was convicted of rape by a jury which assessed his punishment at fifty years' imprisonment. Sentence and judgment were rendered accordingly; and, on appeal, the judgment of conviction was affirmed. State v. Mooring, 445 S.W.2d 303 (Mo.1969).

As grounds for relief movant alleged: (a) that his conviction resulted from illegal arrest, illegal identification procedure and denial of counsel at lineup; (b) that the prosecution employed improper methods calculated to produce a conviction which, coupled with the identification by prosecutrix, deprived him of a fair trial; (c) ineffective counsel.

Movant presented his case by the trial transcript and testimony from Florence Bindbeutel, a supervisor in the I.B.M. Department of the Board of Election Commission, Ruth Mary Brock, the prosecutrix, Charles M. Shaw, defendant's trial and appellate counsel, and himself.

Mrs. Bindbeutel stated that the cards furnished by her office to the circuit court for selection of jurors showed name, address, township, and precinct, by which it would be possible to determine whether the person involved was from Ladue or Kinloch. They did not show race. By transcript reference movant elicited that the venire of thirty-four jurors did not contain any Negroes.

Mrs. Brock acknowledged that she had seen pictures of men brought to her home for her to identify about four months before trial. She saw a picture of the defendant some time before trial. She viewed pictures, five to seven at a time, on three or four occasions. On the occasion she identified a picture of defendant the police may have said 'we have the man,' but she was not certain how the words were. She was interviewed by a Kenneth Ziegler to whom she told what happened. There were several identifications and she identified defendant by a picture. She also told Mr. Ziegler that the police had told her two men had also identified defendant at the time she identified his picture. 'They told me that they had confessions from the * * * other two men * * * involved, but I don't recall whether they told me that at the time that they brought the picture * * *. There had to be some indication that the man was among these in the pictures otherwise they wouldn't have brought them, but I don't remember what they said * * *.' She could not remember a lineup, but when her memory was refreshed from the transcript she recalled a lineup of four persons from which she identified defendant. She thought the lineup occurred after the picture identification. She also identified a man named Taggert and another as being involved in the rape.

The trial transcript shows that the rape occurred about 10:30 p.m., February 9 1966, in an area lighted by house lights. Mrs. Brock saw the faces of her three assailants, Charles Marvell Mooring, Nathaniel Warters, and Michael Taggert. She saw Mooring's face for several seconds when she was first grabbed and for several more seconds as she was dragged to some bushes. She also saw his face for two full minutes while he was performing his act of forcible intercourse. Mrs. Brock made an in-court identification of Charles Marvell Mooring as one of her assailants. She also testified to seeing a picture of him and at the police station. Defendant made no objection at trial to this evidence. Upon cross-examination by defendant, Mrs. Brock testified with respect to the police lineup. The transcript shows also that Detective James Scavatta testified to Mrs. Brock's identification of defendant Mooring. This, too, went in without objection, and defendant cross-examined the officer on the subject. The transcript also shows that defendant adduced evidence calculated to raise doubts as to the identification and on alibi. By transcript reference it was shown that trial counsel filed no motions to suppress identification testimony.

Charles Shaw, a lawyer engaged in the practice of criminal and defense law for a number of years, represented movant on the rape charge both in the trial court and on appeal to the supreme court. He did not remember how many times he discussed the case with defendant in preparation for trial. The defendant told him about a lineup and everything that happened from the time defendant was arrested. He also represented a man named Taggert and a boy named Hull (Michael Taggert and Bradford Robert Hull; see State v. Taggert, 443 S.W.2d 168 (Mo.1969)) on other rape charges involving different facts and victims. He did not talk with any other men in the lineup and could not remember what cause the police gave for the original arrest of Mooring, Taggert, and Hull. He did not know whether Taggert may have implicated Mooring by affidavit or writ or some other proceeding. With respect to whether movant knew Mr. Shaw also represented Taggert, he knew it because he and Taggert were friends. With respect to motions to suppress, Mr. Shaw explained: '* * * the crux of the case was the identification of the eyewitness. I had felt that under the circumstances from what I knew of the case, that this woman's identification would not be good. The trial itself * * * bore me out * * * she had the wrong height, the wrong weight, the wrong features, the wrong complexion. I felt that, at the beginning, from a tactical point, that I wanted to leave the identification alone until we went to trial, * * * one of the ways I handle identification cases. I don't like preliminary hearings, I don't like in any way to get involved in attacking the identification before trial because my experience has shown that all you do is educate the policemen and the witnesses. * * * I wanted to do all this in Court when we proceeded to trial and when we went to trial, the eyewitness identification was, I thought, legally and factually extremely flimsy. * * * that is * * * a matter for the jury to inquire, to decide. I have always felt the defendant was convicted not on his identification but by the failure of an alibi which was raised on appeal. I felt that this was improperly attacked by the prosecution.'

With respect to his representation of Taggert and Hull on other charges at the same time he represented movant, Mr. Shaw explained: '* * * they were friends, hired me. * * * What difference would it make who would be blaming anything on a lineup, as far as my legal work is concerned. * * * My understanding of the law is that if all three or more claim they...