Phillips v. State, 44010

• Decision Date: 31 August 1982
• Docket Number: No. 44010,44010
• Citation: 639 S.W.2d 270
• Parties: Richard T. PHILLIPS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 270

639 S.W.2d 270

Richard T. PHILLIPS, Appellant, v. STATE of Missouri, Respondent.

No. 44010.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 31, 1982.

Gillihan & Reeves by William G. Reeves, Farmington, for appellant.

John Ashcroft, Atty. Gen. by Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

DATZ, Judge.

Movant, Richard T. Phillips, was convicted of armed robbery and sentenced to 35 years in the Missouri State Penitentiary. His conviction was upheld on direct appeal in State v. Phillips, 596 S.W.2d 752 (Mo.App.1980). In the trial court, movant sought to vacate the sentence pursuant to Rule 27.26 basically on two grounds: (1) he had ineffective assistance of counsel at his original trial and (2) he had, since trial, discovered exonerating evidence. The trial court dismissed that part of the Rule 27.26 motion relating to newly discovered evidence without an evidentiary hearing, and, after an evidentiary hearing on that part of the motion pertaining to ineffective assistance of counsel, the court denied movant relief. Movant appeals. We affirm.

Movant raises three points on appeal: (1) the trial court erred in failing to find that movant was denied effective assistance of counsel at trial; (2) the trial court erred in dismissing without an evidentiary hearing that part of his 27.26 motion relating to newly discovered evidence; (3) the trial court erred in refusing to grant a continuance of the 27.26 evidentiary hearing.

In this appeal, our review is limited to determining whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j); Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968).

Movant's first contention is that the trial court erred in failing to find that he was denied effective assistance of counsel. Movant claims that his trial counsel committed a multitude of errors, but these all concern the propriety of his trial counsel's investigation of three purported witnesses and his decision not to call them at trial. ¹

The testimony at the evidentiary hearing on the Rule 27.26 motion revealed the following facts. ² Around 8:15 or 8:30 p. m., on October 16, 1977, two men drove into a gas station in Bonne Terre, Missouri. One of the men entered the building on the gas station's lot, pointed a sawed-off shotgun at an employee and demanded "all the money!" The employee handed over all the money in the cash register; about $157.00. The area was well lighted and the employee viewed the robber for about five minutes. As the robber left the building he passed by a cab driver who was preparing to enter the building. The cab driver had a full-faced view of the robber for about thirty seconds while the robber was about six to ten feet away from the cab driver. At trial, both the employee and the cab driver positively identified movant as the robber.

Prior to the original trial, movant supplied his court-appointed counsel with the names of three potential witnesses. Movant's counsel employed an investigator to interview these witnesses. The investigator, who was also a notary, took sworn statements from each witness.

The first witness, was Paul Kay, a potential alibi witness. Mr. Kay stated to the investigator that he was with movant until approximately 3:00 p. m. on the afternoon of the robbery, and that he did not see movant again until 10:00 a. m. the next morning. Movant's counsel reviewed Mr. Kay's statement and concluded that, since Mr. Kay could not place movant some place other than the gas station at the time of the robbery, Mr. Kay would not be a good alibi witness for movant.

The second witness was Earl Eckhoff, also a potential alibi witness. Mr. Eckhoff picked up movant while movant was hitchhiking on the day following the robbery. ³ Eckhoff picked up movant on highway 21, near Hillsboro, just south of St. Louis. Movant was apparently traveling south from St. Louis towards St. Francois County, where the robbery took place. Movant's counsel came to the conclusion that Mr. Eckhoff's contact with the movant was too remote in time to be of much help.

The third potential witness was Leo Lewis. Mr. Lewis stated to the investigator that on the day preceding the robbery, he bought a car from the movant for $50.00. Movant claims that this accounts for $50.00 of the $124.00 that he had when he was arrested by the police. Although Mr. Lewis came to the trial, movant's trial counsel did not call him as a witness. Movant's counsel felt the case turned on the strength or weakness of the identification of movant by the state's witnesses. Movant's counsel considered the source of part of movant's money as relatively unimportant.

The test for determining whether movant was deprived of effective assistance of counsel is set forth in Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979):

" 'The accepted standard for effectiveness of trial counsel is now established as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances. (cases omitted).... Finally, the exercise of reasonable judgment, even when hindsight reveals a mistake in that judgment, does not render a lawyer negligent or lacking in competence in rendering his services.' "

In addition, movant must also show that he was prejudiced by his counsel's failure to meet the "reasonably competent attorney" standard. Id. at 736.

Movant's trial counsel reviewed the sworn statements of all three witnesses suggested by movant and concluded that none would be beneficial to movant's case. If counsel properly establishes what the testimony of a witness would be and sensibly decides that the testimony would not support his client's position, it is a matter of trial strategy not to call him to the stand. State v. Turner, 623 S.W.2d 4, 12 (Mo. banc 1981). "And the manner in which trial strategy is applied does not provide an adequate basis for attack on competency of counsel." Graham v. State, 605 S.W.2d 535, 536 (Mo.App.1980). ⁴

In this case, the trial court found that movant's attorney met the standard of a reasonably competent attorney acting under the same or similar circumstances. Counsel obtained sworn statements from each potential witness concerning their knowledge of movant's whereabouts before and after the crime. Obtaining sworn statements from potential witnesses who were not eye-witnesses to the crime is a reasonable method of investigation and a reasonable method for determining trial tactics and strategy. Movant's counsel reviewed each statement and found that none provided movant with an alibi or was supportive of movant's position.

Movant did tell his trial counsel that "Paul Kay was lying" and that Kay "would put him in St. Louis [on] the night of the offense." Although counsel had already decided not to use Kay as a witness, he did have a subpoena issued to Kay because movant "wanted him subpoenaed anyway." The return to this subpoena was "non est." We do not find it an unreasonable decision not to use Kay as an alibi witness based upon his sworn statement. Movant's counsel was not required to secure Kay's attendance to determine whether his story would change.

Movant also complains that his trial counsel failed to seek a continuance to enable him to make further attempts to secure Kay as a witness. Assuming Kay's attendance was essential, movant's trial counsel could not properly have sought a continuance. A proper motion for continuance is made by "written motion accompanied by the affidavit of the applicant ..." Rule 65.03 and the application for continuance must show "(1) the facts showing the materiality of the evidence sought to be obtained ..." Rule 65.04. Kay's sworn statement did not provide movant with an alibi and, thus, was not material and could not serve as grounds for a continuance.

Additionally, an argument can be made that testimony by Lewis about his payment to movant may have been relevant. We do not find, however, that failure to call Lewis prejudiced movant. Counsel had narrowed the issue down to identification. On the facts, this was not an unreasonable analysis. Explanation that Lewis was the source of part of movant's money may have lessened the possible inference that movant's money came from the robbery, but it did not directly affect the identification of movant by the state's witness. With hindsight, counsel's judgments can be questioned but we do not find them differing from "the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances." Seales v. State, supra at 735. Therefore, we find the conclusion of the trial court was not clearly erroneous.

Movant next contends the trial court erred in dismissing that portion of the 27.26 motion relating to newly discovered evidence without a hearing. While incarcerated at the state penitentiary, movant discovered a fellow inmate named Richard Chandler who, according to movant, would have testified that he, and not movant, committed the robbery. Movant wanted to present this evidence to the trial court at the evidentiary hearing. The trial court dismissed that part of the 27.26 motion relating to Richard Chandler's alleged exonerating testimony without a hearing. Movant contends that newly discovered evidence is a proper subject of a 27.26 motion. Movant is incorrect. ⁵

Generally, "a proceeding under Rule 27.26 is not the proper vehicle for relief on the basis of newly discovered evidence." Westmoreland v. State, 594 S.W.2d 596, 598 (Mo. banc 1980). This is so even where the newly discovered evidence is evidence of another person's guilt of the crime for which movant was convicted. Beishir v. State, 480 S.W.2d 883, 885 (Mo.1972); Drake v. State, 582 S.W.2d 711, 714 (Mo.App.1979). Thus a trial court, as the trial court here, may properly deny an evidentiary hearing on a 27.26 motion based on newly discovered evidence. Westmoreland v. State,...