Porter v. State, WD

• Decision Date: 25 September 1984
• Docket Number: No. WD,WD
• Parties: Robert E. PORTER, Appellant, v. STATE of Missouri, Respondent. 35486.
• Court: Missouri Court of Appeals

Page 16

682 S.W.2d 16

Robert E. PORTER, Appellant, v. STATE of Missouri, Respondent.

No. WD 35486.

Missouri Court of Appeals Western District.

Sept. 25, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Nov. 27, 1984.

Application to Transfer Denied

Jan. 15, 1985.

James Fletcher, Public Defender, Kevin Locke, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before CLARK, P.J., and DIXON and LOWENSTEIN, JJ.

CLARK, Presiding Judge.

Appellant was convicted by a jury of the offenses of murder in the second degree and first degree assault. The convictions were affirmed on direct appeal. State v. Porter, 640 S.W.2d 125 (Mo.1982). In this proceeding under Rule 27.26, Porter sought to set aside the judgment and consecutive life sentences on various grounds. The trial court denied relief. Porter now appeals contending in a single point of error that ineffective assistance of counsel at the criminal trial was demonstrated. Affirmed.

Because the claim of deficient representation by counsel is associated with the presentation of evidence, some review of the facts is necessary. From the testimony by the state's witnesses, the jury in the case was entitled to find that on the evening of January 7, 1981, Porter went to the home of a neighbor, William Long, for the purpose of borrowing money. Porter had been a frequent visitor at the Long home in the past, had done some minor jobs for Long and had participated in dice and card games there. Long had advanced Porter small sums of money in the past.

As Porter was admitted to the house by Long, he found another neighbor, James Jones, also to be there. Long was at the time attempting to sell some objects in a garage type sale and Jones was looking at the merchandise. Jones had been a participant in the card and dice games in the past and was known to carry several hundred dollars in currency on his person. After exchanging some remarks, Porter asked Long for a loan. Long replied that he had no funds and Porter then made his request of Jones. The latter also declined saying he had no money to loan. Porter then moved to the front door of the residence, as if to leave, but before departing he turned toward Long and fired three shots from a revolver striking Long in the head, body and hip.

At this point, Long fell to a chair and closed his eyes feigning death in the hope Porter would not shoot again. While his eyes were closed, Long heard another shot fired followed by the closing of the front door. Before losing consciousness, Long used a telephone to call the police. Officers soon arrived and transported the victims to a hospital where Jones was pronounced dead. As a consequence, the only witnesses to the events in the Long home the evening of January 7 were Long and Porter. Consistently from his first interrogation by the police through his evidence at trial, Long named Porter as the assailant.

The only evidence presented at trial which linked Porter to the crimes was the testimony by Long described above. For his part, Porter denied the account by Long contending he was at a friend's house, together with his girl friend, throughout the evening and until the next morning. Porter's companions confirmed the alibi. Defense counsel attacked Long's identification evidence by attempting to show that Long was an alcoholic and that his recognition of the assailant was suspect because of his intoxicated state the night of January 7. By Long's own admission, he was accustomed to consuming eighteen beers a day, and on the night in question, he had drunk two shots of whiskey and was drinking his second beer when Porter arrived at his home.

The defense adduced evidence as to Long's alcohol intoxication, not only from cross examination of Long, but from medical records at the hospital and from testimony by a physician and a police officer. The substance of that evidence was that Long had the odor of alcohol about him when he was taken to the hospital, that he exhibited withdrawal symptoms necessitating intravenous injection of alcohol, that he suffered from hallucinations and that he was incoherent when a police officer attempted to question him about the shooting. The strategy of the defense was to rely on Porter's alibi and to cast doubt on Long's identification evidence by suggesting that his intoxicated state precluded reliability.

At the hearing on the 27.26 motion, Porter contended that his trial attorney had failed to provide adequate representation in that counsel did not call Porter's sister, Teresa, as a defense witness despite the fact that she had relevant and material evidence to supply. That evidence, described by both Porter and Teresa at the hearing consisted of a statement made to Teresa by Long subsequent to the crime. According to Teresa, she had engaged Long in a conversation and had inquired if he was certain it was Porter who had committed the offenses. Long had replied, "No, I can't really say." This was reported by Porter to defense counsel during trial preparation. The attorney told Porter the testimony would not aid his case and Teresa would not be endorsed or called as a witness. No testimony was available from the attorney to explain his decision because the attorney had died before the motion was heard.

On appeal, Porter contends his evidence in support of his Rule 27.26 motion was sufficient to sustain his burden of demonstrating ineffective assistance of counsel because the failure to call Teresa as a defense witness proved inexcusable neglect by the...