Newman v. State, s. 15283

• Decision Date: 26 April 1988
• Docket Number: 15451,Nos. 15283,s. 15283
• Citation: 751 S.W.2d 93
• Parties: John Michael NEWMAN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 93

751 S.W.2d 93

John Michael NEWMAN, Appellant, v. STATE of Missouri, Respondent.

Nos. 15283, 15451.

Missouri Court of Appeals,

Southern District,

Division One.

April 26, 1988.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

May 12, 1988.

Application to Transfer Denied June 14, 1988.

Melinda K. Pendergraph, Columbia, for appellant in No. 15283.

John Michael Newman, pro se, in No. 15451.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Chief Judge.

In 1983 appellant John Michael Newman was found guilty by a jury of robbery in the first degree and armed criminal action and sentenced as a persistent offender by the circuit court to concurrent 25-year terms of imprisonment. The judgment was affirmed on appeal. State v. Newman, 699 S.W.2d 29 (Mo.App.1985).

In 1986 appellant filed a motion in the circuit court under Rule 27.26, Missouri Rules of Criminal Procedure (17th ed. 1986), ¹ to vacate the conviction. Following an evidentiary hearing, the circuit court, henceforth referred to as "the motion court," in an order containing findings of fact and conclusions of law, denied relief. That order was filed June 30, 1987.

Appellant, through appointed counsel, filed a timely notice of appeal. That appeal was assigned number 15283 in this court.

On August 27, 1987, appellant, pro se, filed in the motion court a "Motion To Vacate Under Supreme Court Rule 75." That motion was denied by the motion court October 6, 1987. On October 16, 1987, appellant, pro se, filed a notice of appeal "from the denial of a Rule 75 Motion." That appeal was assigned number 15451 in this court, and was consolidated with number 15283. This opinion deals first with number 15283.

In that appeal, appellant briefs one point wherein he avers the motion court erred in denying relief, in that appellant was denied his right to effective assistance of counsel at the jury trial. Appellant's point has five components, identified respectively as paragraphs "A" through "E." We shall discuss each separately. In doing so, we are mindful that our review is limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 27.26(j); Medley v. State, 639 S.W.2d 401, 403 (Mo.App.1982); Montgomery v. State, 631 S.W.2d 671, 672 (Mo.App.1982).

Paragraph "A" of appellant's point alleges that his attorney, henceforth referred to as "defense counsel," was ineffective in "failing to investigate the circumstances surrounding appellant's arrest for petty theft, a pretext to obtain information about the robbery, and illegally seized evidence of a whiskey bottle and testimony relating thereto, and failing to file a pre-trial motion to suppress such evidence, thereby allowing the improper and prejudicial evidence to be introduced at trial."

To grasp the import of this vague and conclusional averment--and others to be considered infra--it is essential that the reader study the segment of this court's opinion affirming appellant's conviction where the state's evidence is summarized, 699 S.W.2d at 31-32. As shown there, the evidence that appellant had stolen a bottle of whiskey from the store where the robbery later took place was adduced during the testimony of witness Robinson, a store employee. Robinson told the jury of a conversation he had with appellant outside the store a short time before the robbery. During the conversation appellant showed Robinson a bottle of whiskey and said he (appellant) had stolen it from the store. Appellant then said he had seen some money bags under the cash register, and he tried to induce Robinson to distract another store employee while appellant took the bags. When Robinson refused, appellant told Robinson he (appellant) was going to get a stocking mask, return, and rob the store. Brandishing a long-bladed knife, appellant commanded Robinson to go home and say nothing, otherwise he (appellant) would kill Robinson and rape and kill the latter's wife.

Robinson pretended to depart, but returned to the store and phoned police, reporting the whiskey theft. Robinson testified he did so "in hope that it might keep [appellant] from coming back and robbing the store."

At trial, the state presented no evidence regarding (1) appellant's arrest, (2) anything said by appellant to authorities after his arrest, or (3) any physical evidence seized incidental to appellant's arrest. Consequently, even if appellant's arrest was a pretext, his conviction was untainted thereby. Furthermore, appellant failed to demonstrate, either at trial or at the evidentiary hearing in the motion court, that his arrest was unlawful, thus the factual basis for his complaint in paragraph "A" was never established.

The motion court found that the transcript of the jury trial showed that the state did not offer in evidence any statement made by appellant or any physical evidence taken from him. Appellant maintains that this finding is erroneous, "as it ignores all the testimony adduced at trial relating to the theft of the whiskey." While appellant does not identify the testimony about which he complains, we assume he means Robinson's testimony, mentioned earlier.

If appellant believes defense counsel was ineffective in failing to seek suppression of that testimony, appellant is mistaken. His disclosure to Robinson that he (appellant) had stolen the whiskey was an integral part of appellant's effort to persuade Robinson to aid appellant in stealing the money bags. As observed in our opinion affirming the conviction, appellant's declaration to Robinson that he (appellant) intended to steal the bags constituted evidence that he was the perpetrator, as the presence of a design or plan to do a given act has probative value to show that the act was in fact done. 699 S.W.2d at 32. Evidence of other crimes is competent to prove the crime charged when such evidence tends to establish motive, intent, absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime on trial. State v. Mitchell, 491 S.W.2d 292, 295 (Mo. banc 1973); State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954).

As appellant's statements to Robinson tended to establish appellant's intent and his identity as the robber, such statements were admissible even though they showed appellant had stolen the whiskey. If evidence of a separate and distinct crime is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the accused guilty of another crime. State v. Holbert, 416 S.W.2d 129, 132 (Mo.1967); State v. Sanner, 655 S.W.2d 868, 879 (Mo.App.1983). Counsel for an accused has no duty to object to admissible evidence, and failure to do so does not establish ineffective assistance warranting post-conviction relief. Parcel v. State, 687 S.W.2d 621, 624 (Mo.App.1985). Paragraph "A" of appellant's point is denied.

Paragraph "B" of appellant's point indicts defense counsel for dereliction in "failing to interview and investigate five defense witnesses." The first two are Robert Chituck and Tony Tripolli. Chituck, says appellant, admitted committing the robbery; Tripolli, according to appellant, knew that Chituck, not appellant, had committed the robbery.

The evidentiary basis for the above contention follows.

Defense counsel, testifying in the motion court, was asked about Chituck and Tripolli. Counsel said: "I remember that we had discussed that there was somebody floating around--one guy that was in Joplin and I think that might have been Tripolli or the other one--that was supposed to know who robbed it. Or somebody had made a statement to him, you know, like at a party: 'I did the robbery.' And then of course the guy that allegedly did the robbery.... I talked to one of them in jail and I don't know which one it is. And somebody out of my office may have talked to both of them.... So I know that we had some investigation towards them and for some reason--I reviewed my file--we had issued writs of habeas corpus or writs for ad testificandum to both of them, and for some reason we withdrew that.... It's just I made a decision not to bring these individuals down from the Missouri State Penitentiary.... The problem was I think, you know, and I'm guessing a little bit on my memory, what really happened, I think I talked to the individual that heard the hearsay. And I knew I couldn't put him on because he can't stand up there and testify about what somebody else told him. And I believe the guy that supposedly did the robbery had a lawyer at that time and for some reason or another it got interceded. Now that's only from memory and that may not be correct. But there was some reason that I did not go ahead and try to bring that individual in. I knew that whichever one--and I don't know whether it's Chituck or the other guy--was the guy that heard the hearsay at a party, he had heard somebody, he said, I knew I couldn't use him to testify. And I don't know on the other guy.... I'm sure I made some type of decision not to use him. You're always a little careful about using people out of the penitentiary in a trial.... Now the guy that allegedly committed the crime, there was a reason, either I didn't talk to him or I did and he denied it, or he was represented by a lawyer and I think the lawyer may have told me to leave him alone."

Appellant, testifying in the motion court, recounted that while he was in jail prior to trial he called defense counsel "and told him this dude had come in the jail and told me this and that he ought to come and talk to him." According to appellant, defense counsel never did. Appellant further testified that after his trial, while he was incarcerated at Moberly, he...