Ross v. State, 12094

Decision Date09 December 1981
Docket NumberNo. 12094,12094
Citation629 S.W.2d 572
PartiesCalvin ROSS, Movant-Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Michael F. O'Rourke, Charleston, for movant-appellant.

John D. Ashcroft, Atty. Gen., Lew A. Kollias, Asst. Atty. Gen., Jefferson City, for respondent.

TITUS, Judge.

Near 2 p. m. December 4, 1973, Calvin Ross (movant herein), his cousin Robert Ross and Charles Williams entered a liquor store. The proprietress of the store was beaten, sexually assaulted by the insertion of a soda bottle into her privates and robbed. A customer in the store was also assaulted. Movant was jury-convicted of robbing the proprietress and feloniously assaulting the customer. These convictions were affirmed upon appeal. State v. Ross, 554 S.W.2d 522 (Mo.App.1977). On the same day and shortly after committing the crimes at the liquor store, the same trio drove to a service station-grocery store manned by Willie Hardin. Mr. Hardin was robbed, pistol-whipped and shot in the face causing the loss of an eye. In connection with the latter event, Calvin Ross was charged with and convicted of armed robbery and assault with intent to kill with malice aforethought. The convictions were affirmed in State v. Ross, 523 S.W.2d 841 (Mo.App.1975) and his subsequently filed motion to set aside the convictions, per Rule 27.26, V.A.M.R., was denied without evidentiary hearing. The denial of the motion was affirmed in Ross v. State, 601 S.W.2d 672 (Mo.App.1980). The instant appeal is from the denial by the trial court, without evidentiary hearing, of movant's Rule 27.26 motion to set aside the convictions and sentences affirmed in State v. Ross, supra, 554 S.W.2d 522.

Paragraphs 8 and 9 of the motion here, wherein movant is to state "concisely" his grounds for vacating, setting aside or correcting the convictions and sentence and the facts in support thereof, are prolix, consisting of 20 legal-sized typewritten pages. However, as augmented by movant's brief on appeal and the points relied on, we believe movant's reasons for claiming ineffective assistance of counsel at the criminal trial may be summarized in that the lawyer allegedly failed, either at trial or on direct appeal or both, (1) to file a motion to quash the jury panel because of the unconstitutional discrimination used in the jury selection procedures, (2) to interview and present certain defense witnesses, (3) to object to trial testimony regarding identification of movant as a perpetrator of the charged crimes, (4) to object to trial testimony as to the uncharged sexual assault upon the proprietress of the store, (5) to object to trial instructions, (6) to request separate trials on the charges of assault and robbery and (7) to properly object to evidence exhibits of liquor taken in the robbery.

Regarding movant's claim of ineffective assistance of counsel because his lawyer in the criminal case failed to investigate the law and the facts regarding selection of the petit jury panel so as to ascertain the disproportionate number of whites over blacks, we need only repeat what was said in Ross v. State, supra, 601 S.W.2d at 675(6-9): "... If there was a variance from the statutory selection process of the panel sufficient to support a challenge to the array, such a challenge should have been made before the jury was sworn. State v. Robinson, 484 S.W.2d 186, 188(4) (Mo.1972). Constitutional objections to a jury's composition may be waived by failure to make timely objections and come too late when raised for the first time in a Rule 27.26 motion. Hemphill v. State, 566 S.W.2d 200, 207(14) (Mo.banc 1978); Thompson v. State, 569 S.W.2d 380, 382(3, 4) (Mo.App.1978). Points not raised in the trial court nor on direct appeal from a conviction ordinarily cannot be raised in a Rule 27.26 proceeding (Rule 27.26(b)(3); Fields v. State, 468 S.W.2d 31, 32(1) (Mo.1971) ) and a defendant's failure to raise a challenge to the jurors on direct appeal is viewed as a deliberate bypass making the subject inappropriate in a postconviction proceeding. Johnson v. State, 574 S.W.2d 957, 958(1) (Mo.App.1978)." Movant's urgings with respect to this issue are denied.

Movant's assertion of ineffective assistance of counsel because the lawyer failed to interview and present at trial witnesses requested by movant and failed to advise movant concerning "defense and appeal," violates the mandatory requirements of Rules 30.06(d) and 84.04(d). No effort is made in the point to identify the witnesses requested or reveal what their expected testimony would be or demonstrate wherein and why such testimony would have benefited the defense or wherein and why the absence of such testimony was harmful. Likewise, no explanation is undertaken to state what advice counsel should have given movant regarding "defense and appeal" or wherein and why such failure was prejudicial. Jones v. State, 600 S.W.2d 189, 190(1) (Mo.App.1980). This court is not obliged to seek through the argument portion of a movant's brief to come by the intendment of abstractions presented under "points relied on." Warren v. State, 572 S.W.2d 874, 876(3) (Mo.App.1978). Nevertheless we will briefly consider the point on its merits, if any.

Movant contends trial counsel was ineffective for failing to call Joe Ross, Robert Ross and Charles Williams as defense witnesses because these people would have testified that on the morning the concerned crimes were committed, they and movant had been shooting at targets. Such testimony, movant contends, would explain the state's evidence of gunshot residue on movant's hands following his arrest. Movant's cousin Robert Ross and Charles Williams were movant's co-actors in the criminal spree of December 4, 1973, and likewise were charged in connection therewith. The evidence at the criminal trial revealed that shortly after the commission of the two robberies and assaults, the get-away car was wrecked. Found therein was a shotgun, a quantity of cash and a collection box of charitable contributions taken in one of the robberies. Movant was positively identified by the liquor store manager and a witness to the auto wreck. "Even assuming movant's partners in crime would voluntarily or via subpoena testify as movant claims (which is doubtful), with the above indicated identification evidence against him (and the items found in the wrecked automobile), whether or not defense counsel undertakes to produce witnesses suggested by his client is a matter of trial tactics not subject to Rule 27.26 reflection on the correctness vel non of the strategy. Hampton v. State, 558 S.W.2d 369, 370(1) (Mo.App.1977)." Ross v. State, supra, 601 S.W.2d at 676(13). Movant additionally complains of ineffective assistance of counsel because his trial attorney did not call an optometrist who allegedly would testify movant could not see without glasses. Such testimony, we are told, would refute the positive testimony of the identifying witnesses that movant was not wearing glasses while at the liquor store or at the scene of the car wreck. Again, the decision not to call the optometrist as part of movant's defense, in light of all the other evidence in the case against him, was a matter of trial strategy not reviewable in this proceeding. Davis v. State, 600 S.W.2d 613, 614(2) (Mo.App.1980). Movant's claims with regard to these matters are denied.

As to the claim of ineffective assistance of counsel because of his failure to object to trial testimony relative to identification of movant as a perpetrator of the charged crimes, we make the following observations. Following the arrest of movant and others, the female victim viewed them in a lineup at the place of incarceration. Defense counsel filed a motion to suppress identification because of the alleged improper lineup. Although the prosecutor, when the motion was called for hearing, said the state would not rely upon the lineup at trial for identification purposes, a hearing on the motion and testimony of witnesses relative thereto was had and the motion was overruled. At trial, and without objection, the proprietress of the store identified movant as one of her assailants. Of course, movant's failure to object to the in-court identification of the proprietress at trial waived any error resulting therefrom for consideration upon appeal. State v. Barnett, 537 S.W.2d 885, 886(1) (Mo.App.1976). Nevertheless, upon the direct appeal in the instant case, it was declared that because of the ample opportunity of the proprietress to view movant during the robbery, which afforded her an independent basis for trial identification, any averred pretrial improper identification procedure did not render unobjected-to admissions of testimony a miscarriage of justice or plain error. State v. Ross, supra, 554 S.W.2d at 524(5). Where a matter is considered on direct appeal for whatever reason, it is proper for the trial court, as was done here, to conclude that it cannot be considered in a post-conviction proceeding. Pittman v. State, 604 S.W.2d 638, 640(6) (Mo.App.1980).

We next consider the fourth claim of ineffective assistance because the trial lawyer did not object to the testimony of the store's proprietress relating to the uncharged sexual assault. During direct examination of the proprietress she recounted how the robbers applied tape to her eyes and mouth and tied her hands behind her back and put her on the floor "and they beat me.... After they beat me I heard a door open and someone came in and in a little bit I heard them shout: 'Shoot the son-of-a-bitch,' and I heard a shot. Then they beat me some more and they took my pants off and stuck a soda bottle in me; and while they were beating me they called me names."...

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2 cases
  • Thomas v. State
    • United States
    • Court of Appeal of Missouri (US)
    • November 29, 1988
    ...seldom that the face of a motion will establish that an alleged dereliction of counsel was a part of trial strategy. Cf. Ross v. State, 629 S.W.2d 572 (Mo.App.1981). However, the record, considered as a whole, may demonstrate that an alleged dereliction was in fact a part of trial strategy.......
  • Pruitt v. State, 16241
    • United States
    • Court of Appeal of Missouri (US)
    • March 15, 1990
    ...modification of an instruction such instruction shall be set forth in full in the argument portion of the brief....' " Ross v. State, 629 S.W.2d 572, 576 (Mo.App.1981) (emphasis in Movant's brief does not comply. It does not suggest, even in general terms, the language of the instruction tr......

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