Morrison v. State, WD

• Decision Date: 26 September 1989
• Docket Number: No. WD,WD
• Citation: 779 S.W.2d 677
• Parties: Fred Lee MORRISON, Appellant, v. STATE of Missouri, Respondent. 41418.
• Court: Missouri Court of Appeals

Page 677

779 S.W.2d 677

Fred Lee MORRISON, Appellant, v. STATE of Missouri, Respondent.

No. WD 41418.

Missouri Court of Appeals Western District.

Sept. 26, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Oct. 31, 1989.

Application to Transfer Denied Dec. 12, 1989.

Sean D. O'Brien, Public Defender, Lise Koenig, Asst. Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

Before GAITAN, P.J., and MANFORD and ULRICH, JJ.

GAITAN, Presiding Judge.

Movant, Fred Lee Morrison, appeals the denial of his Rule 29.15 Motion Without Evidentiary Hearing. The movant alleges that the motion court erred in denying his motion because he was denied effective assistance of counsel in that counsel: (1) failed to file motions to suppress out-of-court and in-court identifications of movant; (2) failed to timely object to the prosecution's comments regarding movant's failure to volunteer exculpatory explanations during police interrogation; (3) failed to timely object to the prosecution's alleged deliberate distortion of evidence; (4) failed to object to the prosecution's alleged personalizing during closing arguments; (5) failed to timely object to the introduction of a gun into evidence which was not used in the crime; and (6) failed to timely object to the exclusion of black venirepersons from the jury panel. The judgment is affirmed.

After the trial by jury on April 23, 1987, the movant was found guilty of two counts of robbery in the first degree, in violation of § 569.020 RSMo, and two counts of armed criminal action in violation of § 571.015 RSMo. He was sentenced to consecutive terms of ten years on each at the robbery counts, and to concurrent terms of ten years for each of the armed criminal action counts. This Court affirmed the movant's convictions and sentences on direct appeal. State v. Morrison, 753 S.W.2d 23 (Mo.App.1988).

On January 2, 1986 at approximately 11:00 p.m., two women were robbed of their purses, at gunpoint by two black males, while in a lighted parking garage on the Country Club Plaza in Kansas City, Missouri. Both victims made positive identifications of the movant at subsequent lineups. The movant provided an alibi defense, supported by four witnesses, who placed the movant at another location at the time of the robbery.

The movant filed a pro se post-conviction motion pursuant to Rule 29.15 on June 7, 1988. Movant's appointed counsel filed an amended motion on September 6, 1988. The motion was overruled without evidentiary hearing on October 7, 1988. Movant contends that the motion court erred in denying his Rule 29.15 Motion without hearing because the motion contained a sufficient factual basis to require an evidentiary hearing on the allegations of ineffective assistance of counsel.

The Court's review is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989); Jones v. State, 760 S.W.2d 176, 177 (Mo.App.1988). The motion court's findings and conclusions are clearly erroneous only if a review of the entire record leaves the appellate court with a definite and firm impression that a mistake has been made. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

Rule 29.15(g) provides that a hearing shall not be held if the files and records of the case conclusively show that the movant is entitled to no relief. "To be entitled to an evidentiary hearing on the issue of ineffectiveness of counsel, a prisoner seeking relief must plead facts, not conclusions, which if true would warrant relief; and the matter complained of must have resulted in prejudice to the prisoner." Boggs v. State, 742 S.W.2d 591, 594 (Mo.App.1987).

To prevail on a claim of ineffective assistance of counsel, a Rule 29.15 movant must show that his attorney's performance fell below the standard of care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances, and that the movant was prejudiced by such deficient performance. Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984); Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979). There is a strong presumption that counsel's conduct and actions may be considered sound trial strategy. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. In reviewing such claims the determination need not focus on whether the trial counsel's performance was deficient prior to examining the prejudice prong. Id. at 697, 104 S.Ct. at 2069; Guinan v. State, 769 S.W.2d 427, 428 (Mo. banc 1989).

I.

In his first point, movant contends that he was denied effective assistance of counsel in that trial counsel failed to file motions to suppress or object to out-of-court and in-court identifications of movant.

On the night of January 2, 1986, the victims gave to the police, the following description of the robber who brandished a gun: black male, twenty to twenty-one years of age, slim build, with a mustache and flat nose. A few days after the robbery, the victims observed a lineup which did not include movant. Both women stated that their assailant was not a participant in the lineup. On January 22, 1986, a police officer showed one of the victims, Betty Hayes, a photo array that included movant's photograph. The photo array was comprised of black males, with mustaches and flat noses. Miss Hayes tentatively identified the movant as the man who robbed her. Movant Morrison was arrested on January 27, 1989. Waiving his Miranda rights and claiming to know nothing of the robbery, movant requested to participate in a lineup. The following day, police conducted a lineup composed of movant and two other black males who did not share in the same physical characteristics as the movant. Both women observed the lineup and identified appellant as one of the men who participated in the robbery. During trial, they identified movant, in court, as one of their assailants.

The movant argues that the lineup in which he participated was impermissibly suggestive and thereby undermined the reliability of the in-court identification. We find no merit to this argument.

The movant bases his allegation that the lineup was impermissibly suggestive on the fact that the other two participants did not physically resemble movant and did not fit the description of the robbery suspect. The analysis relied on to determine any prejudicial effect of a pretrial identification procedure is whether the procedure was so impermissibly suggestive as to create a very substantial likelihood of an irreparable misidentification at trial. State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc 1979); State v. Burns, 671 S.W.2d 306, 310 (Mo.App.1984). This determination must be examined in light of the "totality of the circumstances."

There is no requirement that participants in a lineup share the same physical characteristics. State v. Young, 701 S.W.2d 490, 495 (Mo.App.1984). See also State v. Kirk, 636 S.W.2d 952, 954 (Mo. banc 1982); State v. Greer, 609 S.W.2d 423 435 (Mo.App.1981). Additionally, a lineup is not improperly suggestive when only one of the participant's picture has been shown to the witness. State v. Robinson, 641 S.W.2d 423, 427 (Mo. banc 1982). It is therefore necessary to examine all facts surrounding the lineup. Both women had an opportunity to observe their assailant at the time of the robbery. The parking garage was lighted; the event lasted a minimum of three to four minutes. Following the incident, the victims gave to police a description of the perpetrator who held the gun. The description was specific enough to demonstrate reliability. The women testified that they got a good look at the assailant with the gun. Based on their observations they positively identified movant. The witnesses testified that the police made no attempt to influence them nor made any suggestive comments. The reliability of their identification is supported by the fact that the initial description each witness gave the police matched the movant's description, and that each positively asserted that their assailant was not a participant in the first lineup.

The record clearly indicates that the lineup procedure was proper, lacked suggestiveness, and caused no likelihood of irreparable misidentification. Both women's subsequent in-court identifications were not tainted and were reliable. Therefore both the out-of-court and in-court identifications were admissible evidence. Defense counsel has no duty to object to the introduction of evidence which the law considers admissible, and a failure to object is not a basis for establishing incompetency of trial counsel. Miller v. State, 760 S.W.2d 166, 169 (Mo.App.1988). The movant fails to demonstrate that trial counsel's failure to file motions to suppress or to object to the identifications prejudiced his case or altered its outcome. Additionally, the record indicates that movant's trial counsel made vigorous and competent cross-examinations regarding the identifications. As movant offered an alibi defense, misidentification was not the only basis for his defense. The record indicates that trial counsel's actions were a matter of sound trial strategy, and movant fails to provide this Court with evidence that the findings of the motion court were clearly erroneous. Movant's first point is denied.

II.

Next, movant contends that trial counsel failed to properly object to the prosecutor's comments, during cross-examination and closing arguments, regarding movant's failure to volunteer exculpatory explanations for his whereabouts on the night of the robbery.

Movant was arrested on January 27, 1986. Advised of his Miranda rights, movant voluntarily waived his right to remain silent and signed a waiver form. Questioned about the robbery by police, movant Morrison stated that he knew nothing about the...