Nelson v. State
| Citation | 537 S.W.2d 689 |
| Decision Date | 25 May 1976 |
| Docket Number | No. 36960,36960 |
| Parties | Steven Gale NELSON, Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Three |
| Court | Court of Appeal of Missouri (US) |
William J. Shaw, Public Defender, Joseph W. Downey, Asst. Public Defender, Clayton, for movant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, William F. Arnet, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Sam C. Bertolet, Asst. Pros. Atty., Clayton, for respondent.
This is an appeal by movant-appellant, Steven Gale Neslon, from an order entered by the Circuit Court of St. Louis County on February 14, 1975, denying movant's motion to vacate filed December 23, 1974.
Appellant was tried and convicted in 1972 of the offense of murder in the first degree and sentenced to life imprisonment in the Department of Corrections. The conviction was appealed to the Supreme Court and affirmed in October, 1974. State v. Nelson, 514 S.W.2d 581 (Mo.1974). The facts surrounding the offense are detailed therein.
Following his conviction, movant, on December 23, 1974, filed a motion to vacate sentence under Rule 27.26 alleging that the conviction should be vacated because (1) the trial court was without jurisdiction to render judgment and sentence 'for the reason that the State failed to prove . . . venue contrary to Article I, Section 18(a) of the Missouri Constitution . . .'; (2) he was deprived of due process of law 'in violation of the 14th Amendment to the Constitution of the United States for the reason that the State suppressed evidence of an oral statement made by Movant . . .' and then '. . . impeached him by the said statement'; and (3) movant was denied the effective assistance of counsel for the reason that trial counsel failed to object to the state's failure to prove venue or to object to the state's impeachment of him.
The motion to vacate states that the trial transcript 'page(s) 176 through 487, will reveal that there was no evidence or any testimony to show in what city or county did the offense occurred at, nor did the evidence inferred such (sic).' Movant contends that since there was 'no evidence whatsoever in showing venue' the trial court was without jurisdiction to render judgment and sentence. 1
Movant also argues that the 'transcript will reveal' that counsel filed a motion for the production of favorable evidence and 'pursuant to that motion, the State . . . stated that there was no statement, oral or otherwise made by Movant.' Hence, he contends that the state, 'in effect, suppressed favorable evidence because on cross-examination by the State, it brought out the fact that Movant did make a statement on April 18, 1972,' which violates due process. 2
Lastly, he contends in his motion that his trial counsel was ineffective because he 'failed to protect Movant's rights as stated above . . ..' McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974).
Following his motion and his forma pauperis affidavit, the public defender was appointed to represent him on the motion. The matter was heard by the trial court without the presence of the appellant, and on February 14, 1975, the trial court overruled the motion. The court found that venue was shown because state's exhibit No. 1--a diagram of the apartment where the offense occurred--was admitted into evidence by stipulation of both counsel and such exhibit 'bears the legend in large black print, St. Louis County, Missouri.' The court also found (1) that the transcript does not support the allegation that favorable evidence was suppressed by the state and (2) that his claim that counsel was ineffective was without merit.
On this appeal, appellant again contends in his pro se brief that the court erred in denying the motion because (1) the state failed to establish and prove venue at the trial and (2) the state suppressed 'favorable evidence of a (sic) oral statement which had not been disclosed pursuant to a pre-trial motion for production of favorable evidence of any written or oral statements . . ., thereby depriving the appellant of a fair trial and due process of law . . ..'
In the brief filed by appellant's counsel, counsel contends that the trial court was 'clearly erroneous' in ruling that trial counsel was not ineffective, because counsel 'failed to object to the prosecution's introduction into evidence of a statement made by movant which had not been disclosed pursuant to a previous court order.'
Prior to trial, which occurred in October, 1972, trial counsel filed a motion 'for production of favorable evidence' and a motion 'for discovery and inspection.' The motion for the production of favorable evidence requested the state to furnish the defendant with various items including 'all statements, books, papers, records, documents, lists and objects in the possession of the State that are favorable to this defendant or exculpatory of his actions.' The motion for discovery requested the state to produce 'and to permit this defendant to inspect and copy or photograph all written or recorded statements or confessions made by the defendant, or copies thereof . . ..' At trial a motion to suppress was heard and overruled.
Following the overruling of the motion to suppress, defense counsel stated:
'Judge, the motion for discovery and inspection, I think we're entitled and I am sure (the prosecutor) will agree, to any statements that Mr. Nelson may have given to the police or any admissions that he may have given to the police . . ..'
After further colloquy regarding other matters, the prosecutor then stated:
During the trial, Mr. Nelson took the stand and detailed some of the events. On cross-examination the prosecutor, after asking a general question, said: '. . . Do you recall on previous occasions making the statement that you don't remember what happened in there?' After an objection to the 'general nature' of the question and the court indicating that it 'can be more specific,' the prosecutor then asked:
Movant replied, 'Yes, sir.' No further reference was made to the statement, and there was no indication to whom the statement was made or what the statement involved. Undoubtedly, the statement referred to was an 'oral' statement.
It is upon these facts that movant contends the court erred in overruling his motion to vacate because the state suppressed 'favorable' evidence of an oral statement, and because counsel was ineffective in not interposing an objection to the reference to the April 18, 1972 'statement.'
On this motion to vacate, we are guided by certain well-established principles. (1) A motion filed under Rule 27.26 is an independent civil action which is governed, so far as applicable, by the Rules of Civil Procedure. Rule 27.26(a); (2) in such a proceeding, the burden is upon the movant to establish his right to the relief sought; (3) upon a review of the trial court's order, we are limited to a determination of whether the judgment is 'clearly erroneous.' Rule 27.26(j); (4) a finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed; (5) while an accused is entitled to the effective assistance of counsel, movant has a heavy burden to carry to show that counsel was ineffective; counsel is vested with broad latitude and is not to be adjudged incompetent by reason of what, in retrospect, appears to be error of judgment; and (6) defense counsel has broad latitude in the conduct of a defense and cannot be adjudged incompetent and the defendant deemed to be denied effective assistance of counsel by reason of trial strategy which did not produce an acquittal or some other desired result. Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974); Brown v. State, 495 S.W.2d 690, 693--694 (Mo.App.1973).
Tested within these well-recognized principles, and after examining the transcript on appeal and the transcript of the 27.26 motion, we are convinced that the trial court was not 'clearly erroneous' in overruling the movant's 27.26 motion.
First, as to venue, appellant contends that the state did not produce 'any testimony' as to where the alleged crime was committed notwithstanding many witnesses testified for the state. He contends there was not estimony produced that the offense occurred in St. Louis County.
There is no question that venue must be proved because the accused is guaranteed the right to a public trial by an impartial jury of the state and district wherein the crime shall have been committed. State v. Garrett, 416 S.W.2d 116, 118--119 (Mo.1967); Dean v. United States, 246 F.2d 335, 338 (8th Cir. 1957); Mo. Const., Art. I, § 18(a); § 541.033, RSMo 1969. But venue is not an integral part of a criminal offense and need not be proved beyond a reasonable doubt or by direct evidence, but may be inferred from all the evidence in the case. State v. Valentine, 506 S.W.2d 406, 410 (Mo.1974), citing many authorities; State v. Rocha, 526 S.W.2d 834, 837 (Mo.App.1975).
'. . . In a criminal case venue may be...
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