Moss, v. State

• Decision Date: 11 January 2000
• Citation: 10 S.W.3d 508
• Parties: (Mo.banc 2000) . Supreme Court of Missouri Edward D. Moss, Appellant, v. State of Missouri, Respondent. Case Number: SC81837 Handdown Date: 0
• Court: Missouri Supreme Court

10 S.W.3d 508 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Supreme Court of Missouri

Edward D. Moss, Appellant, v. State of Missouri, Respondent.

Case Number: SC81837

Handdown Date: 01/11/2000

Appeal From: Circuit Court of Lafayette County, Hon. Robert H. Ravenhill

Counsel for Appellant: Andrew A. Schroeder

Counsel for Respondent: Shaun J. Mackelprang

Opinion Summary:

Edward Moss appeals the denial of his post-conviction motion after his robbery conviction was affirmed.

AFFIRMED.

Court en banc holds:

1) Moss' trial counsel was not ineffective for failing to object to a witness' statement because the statement was admissible under the co-conspirator exception to the hearsay rule. The witness, who was also involved in the robbery, said a third robber said he told his girlfriend about it. Additionally, Moss was not prejudiced by the girlfriend's statement that the third robber declared he committed the robbery because it was cumulative of other evidence.

2) A) Moss was not actually prejudiced by counsel's failure to file a Rule 32.03 motion for change of venue. The record shows Moss had an unbiased jury.

B) Moss was also not presumptively prejudiced by counsel's failure to file a Rule 32.03 motion. Rule 32.03 does not create a presumption that a defendant cannot receive a fair trial in counties having 75,000 or fewer inhabitants. It merely recognizes a defendant's ability to secure a fair trial in small counties is often contested and affords a defendant the right to change venue as a matter of convenience.

3) Appellate counsel was not ineffective for failing to raise on appeal the endorsement of two state witnesses five days before trial, because the trial court did not err by permitting the state to endorse these witnesses. The state did not intend surprise, and Moss was not surprised or disadvantaged by the endorsement.

Opinion Author: Ronnie L. White

Opinion Vote: AFFIRMED. All concur.

Opinion:

Edward Moss was found guilty of robbery in the first degree¹ and was sentenced as a prior offender to serve fifteen years in prison. His conviction was affirmed on appeal.² Moss then filed a Rule 29.15 motion for post conviction relief, which the motion court denied without a hearing. After opinion by the Court of Appeals, Western District, this Court granted transfer.

In his Rule 29.15 motion, Moss claims his conviction was imposed in violation of his Sixth and Fourteenth Amendment constitutional right to the effective assistance of counsel.³ In particular, Moss claims 1) trial counsel was ineffective for failing to object to hearsay testimony from prosecution witnesses; 2) trial counsel was ineffective for failing, upon Moss' request, to timely file a written motion for change of venue pursuant to Rule 32.03; and 3) appellate counsel was ineffective for failing to raise the claim on appeal that the trial court erred by sustaining, over trial counsel's objection, the State's motion for leave to endorse two additional witnesses on the first day of trial. We affirm the judgment of the motion court.

I. Standard Of Review

Appellate review of the denial of a post-conviction motion is limited to a determination of whether the findings of fact and conclusions of law of the motion court are clearly erroneous.⁴ Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.⁵ To be entitled to an evidentiary hearing, 1) Moss must cite facts, not conclusions, that, if true, would entitle him to relief; 2) the factual allegations must not be refuted by the record; and 3) Moss' claims of error must prejudice him.⁶

II. Facts

Edward Moss, Quentin Hackley, and Rocky Evans all were charged with robbing Truck Stops of America (T.A.). Rocky pleaded guilty and testified against Moss. Rocky testified that the three men drove to T.A., Quentin alone entered the store, held up the employee Angela Schelp, took the money, and then fled by car with Rocky and Moss. Rocky further testified that after the robbery, the three men returned to Moss' apartment and divided the money among them. Lisa Ikenberry and Jennifer Friedly were sleeping there, and all had been drinking and watching a movie together earlier at the apartment before the robbery. Lisa testified Moss woke her up and told her he had robbed the T.A. Jennifer also testified that Quentin told her about the robbery. Police arrived at the apartment soon thereafter and arrested Moss, Rocky, and Quentin. Police ultimately discovered all the money stolen from the T.A. in Moss' apartment.

III. Hearsay

To establish ineffective assistance of trial counsel, Moss first must "show that counsel's representation fell below an objective standard of reasonableness."⁷ Moss also must show "there is reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."⁸

The first ineffective assistance of counsel claim made by Moss involves similar statements made by two state witnesses at trial. First, Rocky stated that when they all returned to Moss' apartment, Quentin declared that he had told Jennifer "all about it." Second, Jennifer corroborated Rocky's testimony when she stated that Quentin also separately declared to her that he had robbed the T.A. Moss claims these statements were inadmissible hearsay and that his trial counsel was ineffective by failing to object to them. We disagree. Moss was entitled neither to a hearing nor to relief on the merits on this claim.

Trial counsel for Moss was not ineffective for failing to object to Rocky's statement because the statement was admissible under the co-conspirator exception to the hearsay rule.⁹ Rocky's statement was that Quentin declared he had told Jennifer "all about it." A "witness may testify to statements of a co-conspirator that show the furtherance of the conspiracy [and] the fact that declarations are made by a conspirator after the crime has been consummated does not necessarily make such declarations inadmissible."¹⁰ Rocky's testimony showed that he, Quentin, and Moss were all co-conspirators. Quentin's declaration that he had told Jennifer "all about it" was made in furtherance of the conspiracy because it was made while the men were dividing the proceeds of the robbery. Furthermore, Quentin continued to assure Rocky and Moss, "[i]t will be all right. She is not going to tell anybody. She is my girlfriend." Quentin's statement that Rocky repeated at trial was also in furtherance of the conspiracy, therefore, in that it was made as part of his efforts to conceal the crime.¹¹

Moss' ineffective assistance of counsel claim about Jennifer's statement - that Quentin declared he had committed the robbery - is also without merit. Even if Jennifer's statement was inadmissible hearsay, and if trial counsel was deficient by not objecting, Moss was not prejudiced.¹² Quentin's declaration, even if interpreted to implicate Moss in the robbery, did not prejudice Moss because it was cumulative of other evidence properly admitted at trial.¹³ For instance, Rocky testified at length about the participation of Moss in the robbery. In addition, Lisa testified that Moss himself admitted to her that he had robbed the T.A.

IV. Venue

The second ineffective assistance of counsel claim made by Moss involves the failure of his trial counsel to file a Rule 32.03 motion for change of venue. Moss asked his trial counsel to change the venue of his trial from Lafayette County because of substantial pretrial publicity. Nonetheless, trial counsel did not timely file a written Rule 32.03 motion for change of venue. According to Rule 32.03(a),

A change of venue shall be ordered in any criminal proceeding triable by a jury pending in a county having seventy-five thousand or fewer inhabitants upon the filing of a written application therefore by the defendant. In felony and misdemeanor cases the application must be filed not later than ten days after the initial plea is entered. The defendant need not allege or prove any reason for change.

Moss claims counsel was ineffective by failing to file this Rule 32.03 motion, that he was presumptively and actually prejudiced thereby, and that the motion court clearly erred by denying his motion without an evidentiary hearing. We disagree.

A. Actual Prejudice

Moss was not actually prejudiced by counsel's failure to file a Rule 32.03 motion, regardless of whether counsel was constitutionally ineffective thereby.¹⁴ Moss claims he was prejudiced by the substantial pretrial publicity surrounding his case and that he and his co-defendants were "notorious criminal figures in the community." Moss claims the record shows that, during voir dire, "at least fifteen members of the venire panel said that they knew Mr. Moss or one of his co-defendants, that they had heard about the case in the media, or that they had heard about the case from friends or family."

These claims of prejudice, however, are refuted by the record, which shows Moss had an unbiased jury.¹⁵ Of his twelve jurors, only four had ever heard about the charged offense, either from the media or from their friends or family, and these four said they had only a vague recollection of the events. All four also said they could be fair and impartial and reach a conclusion based solely on the evidence presented in court.¹⁶ Furthermore, none of the twelve jurors indicated they knew Moss or his co-defendants.

Nor does the record support Moss' claim that the entire venire panel was tainted by responses given by two venirepersons stricken for cause. One stricken venireperson lived in co-defendant Quentin's neighborhood and said of him, "I just know what that kid can be like." Another said she knew both co-defendants through church...