Richardson v. State

• Decision Date: 24 May 1988
• Docket Number: No. WD,WD
• Parties: Harold RICHARDSON, Appellant, v. STATE of Missouri, Respondent. 39703.
• Court: Missouri Court of Appeals

Page 919

752 S.W.2d 919

Harold RICHARDSON, Appellant, v. STATE of Missouri, Respondent.

No. WD 39703.

Missouri Court of Appeals,

Western District.

May 24, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 28, 1988.

Application to Transfer Denied July 26, 1988.

Sean D. O'Brien, Public Defender, David S. Durbin, Asst. Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before LOWENSTEIN, P.J., and NUGENT and MANFORD, JJ.

NUGENT, Judge.

Movant Harold Richardson appeals after an evidentiary hearing from the denial of his Rule 27.26 motion to set aside his conviction and sentence. We affirm the judgment.

In November, 1985, a jury found Harold Richardson guilty of second degree burglary and stealing, and we affirmed his conviction on direct appeal. State v. Richardson, 719 S.W.2d 884 (Mo.App.1986).

On January 14, 1987, Mr. Richardson moved under Rule 27.26 to set aside his conviction and sentence. In his second amended motion he alleged that his trial counsel had been ineffective in at least three ways: First, he was ineffective in failing to move to quash the jury panel because members of the jury had been selected in such a way that their names could be seen before final selections were made. Next, he says that counsel was ineffective in failing to establish that the only black venire member had been peremptorily stricken by the state, failing to make a proper record and failing to move to quash the jury panel or to assert that error in his motion for new trial. Mr. Richardson also alleged that his counsel was ineffective because of certain actions at trial and that the trial court had erred when it refused to listen to his reasons for wanting substitute counsel in place of his appointed counsel, Dennis Rolf.

Mr. Richardson contends that the trial court erred in refusing to listen to his "grounds" for wanting a new attorney, arguing that this "refusal" meant that he did not have effective assistance of counsel. His contention is not supported by the record. When this matter first arose during pretrial conferences on October 15, 1985, the trial judge did, in fact, tell the defendant that he "d[id]n't care" what his grounds were. However, when he made that statement, Judge Bellamy indicated to the defendant that, regardless of his grounds, he would see that another attorney was appointed to represent him, and he directed Mr. Rolf to contact the public defender's office and have them assign someone else to the case.

Mr. Rolf did as he was instructed and wrote Mr. Robert D. Godfrey, the deputy director of the office of the State Public Defender, and requested that another attorney be appointed to handle the case. In that letter Mr. Rolf indicated that Mr. Richardson's disagreement with him was based upon Mr. Rolf's refusal to file some motions until he had a chance to read them and possibly redraft them. Mr. Godfrey informed Judge Bellamy that, after reviewing Mr. Rolf's letter and after speaking with Mr. Rolf, he could not determine any conflict of interest sufficient to justify Mr. Rolf's removal from the case. On October 29, 1985, Judge Bellamy informed the defendant that Mr. Rolf would continue to represent him. At that time the defendant did not voice any further objection to Judge Bellamy's ruling; he did not reassert his demand for another attorney, and he did not state any ground to justify or require Mr. Rolf's removal from the case.

Before an attorney may be allowed to withdraw from the case, an irreconcilable conflict, that is, a total breakdown of communication between the attorney and client must exist. State v. Richardson, 718 S.W.2d 170, 173 (Mo.App.1986). See also State v. Turner, 623 S.W.2d 4, 11 (Mo.1981) (en banc). The record reveals no irreconcilable conflict between Mr. Rolf and Mr. Richardson.

To prevail on a claim of ineffective assistance of counsel, the movant must show that his attorney failed to exercise the customary skill and diligence of a reasonably competent lawyer under similar circumstances and that this failure prejudiced movant. Id. at 12; Seales v. State, 580 S.W.2d 733, 736 (Mo.1979) (en banc).

Defendant argues that the jury selection procedure utilized at his trial was tainted because Mr. John Morgan, the Circuit Clerk of Lafayette County, "would look at the names" of the venire members before final selections were made. A claim concerning supposed irregularities in the procedures used to select a defendant's jury must be raised in a timely manner at trial and cannot be raised for the first time in an action under Rule 27.26. Hemphill v. State, 566 S.W.2d 200, 207 (Mo.1978) (en banc); Benson v. State, 611 S.W.2d 538, 541-42 (Mo.App.1980).

However, defendant argues that his trial counsel was ineffective in failing to move to quash the jury panel because of this alleged irregularity. At defendant's Rule 27.26 hearing Mr. Morgan, the Circuit Clerk, testified that he could not see the names of the juror cards until he had pulled the cards. After the cards were pulled, he looked at the cards to see who might be away on vacation and, therefore, unavailable for jury duty. The hearing court found no violation of § 495.080 R.S.Mo., 1978, and neither do we. Mr. Rolf was not ineffective for failing to make a baseless motion.

Mr. Richardson also contends that Mr. Rolf was ineffective because he failed to highlight the "inconsistencies" in the testimony given by two arresting police officers because the discrepancies would have called "their accuracy into question" and because he did not introduce into evidence the shoes seized from the defendant at the crime scene because the jury would have observed a lack of "obvious glass particles" in the soles of the shoes.

The general rule is that the extent of cross-examination and subjects covered must be left to the judgment of counsel. Williams v. State, 712 S.W.2d 404, 409 (Mo.App.1986). The decision to impeach an opposing witness constitutes a choice of trial technique which lies within the broad latitude possessed by counsel in conducting a defense. Green v. State, 575 S.W.2d 868, 869 (Mo.App.1978). We decline to second-guess Mr. Rolf's choices.

Defendant argues that his shoes did...