Perkins-Bey v. State, PERKINS-BE

• Decision Date: 21 July 1987
• Docket Number: D,PERKINS-BE,No. 52118,52118
• Citation: 735 S.W.2d 170
• Parties: Davidefendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
• Court: Missouri Court of Appeals

Page 170

735 S.W.2d 170

David PERKINS-BEY, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.

No. 52118.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 21, 1987.

Motion for Rehearing and/or Transfer Denied Aug. 18, 1987.

Application to Transfer Denied Sept. 15, 1987.

David Hemingway, Asst. Public Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Colly Frissell-Durley, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Judge.

Movant appeals denial of post conviction relief under Rule 27.26. Movant was convicted of robbery first degree, Section 569.020 RSMo 1978, and tampering first degree, Section 569.080 RSMo 1978. We affirmed the convictions. State v. Perkins, 679 S.W.2d 410 (Mo.App.1984). ¹ Defendant was sentenced to serve a term of imprisonment of sixteen years for robbery and a concurrent six year term for tampering. The motion court considered movant's pro se motion. No amended motion was filed by appointed counsel. The court held an evidentiary hearing, entered findings of fact and conclusions of law and denied relief.

We find movant's second claim of error decisive. The testimony of movant, movant's trial counsel, an investigator for trial counsel and movant's alibi witness supports the only possible conclusion that movant was denied effective assistance of counsel and is entitled to a new trial.

We review under the limitation that we are to determine whether the findings, conclusions, and judgment of the trial court are clearly erroneous. Rule 27.26(j). Credibility in this civil proceeding is for the trial court, but is not an issue in this appeal because the testimony of movant's trial counsel and his investigator was offered by the state.

In order to succeed movant must allege facts not refuted by the record which warrant relief by indicating the nature of the prejudice claimed. Haliburton v. State, 546 S.W.2d 771, 773 (Mo.App.1977). Defendant alleged that his trial counsel failed to prepare for trial by failing to interview alibi witnesses who, if called, would testify that he was with them at the time the charged crime occurred elsewhere. According to movant's testimony and testimony of his trial counsel, movant told his appointed trial counsel that he was at home with his mother at the time the crimes charged were committed. The motion was sufficient to present the issue.

Movant's testimony that he informed his appointed counsel of his alibi defense and the name of his mother as a witness is undisputed. Trial counsel testified that he requested his investigator to contact defendant's mother. He supplied her telephone number to the investigator. Trial counsel and the investigator testified for the state and said that they talked with defendant's mother by telephone. There is no testimony that they asked about the details of the alibi defense or that they obtained any information from defendant's mother which would have confirmed or refuted the alibi. Trial counsel "talked with her within a day or two of the trial and asked her to please come down, because it always helps to have some family members in the courtroom and show that somebody's there." He offered no testimony that he ever asked movant's mother about the alibi during telephone conversations. He never met her in person and did not make any effort to subpoena her as a witness. The investigator testified that she "telephonically conversed" with movant's mother. She made appointments, but "Mrs. Walters [movant's mother] failed to appear, she never did show up." The motion court did not enter any finding of fact or conclusion of law that the failure of counsel to interview movant's mother, an identified alibi witness, or the failure to subpoena movant's mother in that capacity was effective or ineffective assistance of counsel.

In Stokes v. State, 688 S.W.2d 19, 23-24 (Mo.App.1985), the court considered a claim of ineffective assistance of counsel and said:

To establish this, Movant must show counsel did not exhibit the customary skill and diligence exercised by a reasonably competent attorney under similar circumstances. Tate v. State, 675 S.W.2d 89, 90-91 , (Mo.App.1984). Movant must 'show that there is a reasonable probability [sic] 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.' Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 , 80 L.Ed.2d 674, 698 (1984); Smith v. State, 674 S.W.2d 638, 640 [4, 5] (Mo.App.1984).

The right to counsel guaranteed by state and federal constitutions includes the right to effective assistance thereof. Thomas v. State, 516 S.W.2d 761, 764 (Mo.App.1974). The duty to render effective counsel encompasses an obligation to investigate the evidence available on behalf of one's client. Id. Such investigation, however, would be an empty duty if counsel, having obtained the evidence, fails to take the steps necessary to produce the evidence at trial: "A competent lawyer's duty is to utilize every voluntary effort to persuade a witness who possesses material facts and knowledge of an event to testify and then, if unsuccessful, to subpoena him to court in order to allow the judge to use his power to persuade the witness to present material evidence."...