Plant v. State
| Decision Date | 12 December 1989 |
| Docket Number | No. 54467,54467 |
| Parties | Robert Harry PLANT, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Michael Lee Henderson, Clayton, for appellant.
William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for respondent.
Movant, Robert Plant, appeals from the denial of his Rule 27.26 motion after an evidentiary hearing. Movant was convicted by a jury of second degree burglary, RSMo § 569.170 (1986) and stealing, RSMo § 570.030 (1986). Movant was sentenced as a persistent offender to two consecutive fifteen year terms. This court affirmed his convictions on appeal. State v. Plant, 691 S.W.2d 1 (Mo.App., E.D.1985). In this appeal movant alleges that the motion court erred in not finding ineffective assistance of counsel.
Initially, we note the standard of review employed in evaluating movant's claim of error. Our determination is limited to whether the findings, conclusions and judgment of the motion court are clearly erroneous. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Rule 27.26(j). The motion court's findings and conclusions are clearly erroneous if a review of the entire record leaves this court with a definite and firm impression that a mistake has been made. Wooten v. State, 776 S.W.2d 453, 454 (Mo.App., E.D.1989). In order to prove ineffective assistance of counsel, movant must not only show that trial counsel's performance failed to rise to the level of reasonable professional standards, but also that the alleged ineffective assistance affected the outcome of the trial. Id. We must next evaluate movant's claims in light of these principles.
Movant claims that his trial counsel was ineffective in failing to include certain bases for suppression and exclusion of evidence in his motion to suppress. The evidence seized pursuant to the search warrant in question had been stolen from a nearby I.G.A. grocery store. Movant advanced two claims of ineffective assistance of counsel based on this warrant.
Movant first claims that his counsel was ineffective in failing to include an allegation that the affidavit of the victim, Russell Peterson, upon which the warrant was partially based, contained "false statements made with reckless disregard for the truth." The motion court found, however, that no evidence existed that Russell Peterson made a false statement in his affidavit. In addition, movant's allegation was conclusory in nature. We do not find this to be clearly erroneous.
Movant next asserts that the affidavit of Officer Boyd Haddock was defective in that it included no substantial basis for Haddock's belief in the credibility or reliability of Russell Peterson's statements. In support of this argument, movant cites State v. Ambrosio, 632 S.W.2d 262 (Mo.App., E.D.1982). In Ambrosio, this court held that a warrant based on hearsay from an informant is valid where the affidavit shows that the informant gleaned the information through personal observation and if the informant's statements are corroborated through other sources. Ambrosio, 632 S.W.2d at 265. Ambrosio does not apply to the case at bar, however.
The test set out in Ambrosio is used to insure that hearsay statements of an informant are reliable and to reduce the chances of reliance on a reckless or prevaricating tale. Illinois v. Gates, 462 U.S. 213, 242-245, 103 S.Ct. 2317, 2334-35, 76 L.Ed.2d 527 (1982); State v. Cummings, 765 S.W.2d 366 (Mo.App., S.D.1989). In the case at bar, we are not dealing with the hearsay statements from a mere informant. Russell Peterson was the victim of the crime committed and filed his own affidavit stating that he observed his stolen property in a van located at the Pike County Sheriff's office. The great concerns of reliance on a reckless or prevaricating tale that exists where a mere informant is involved is lacking here. There was, thus, no error.
Movant next claims that he received ineffective assistance of counsel because his counsel failed to object to the introduction of the customer copy of a rental agreement for the van from which the stolen merchandise was recovered. Movant claims that the rental agreement was hearsay which did...
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