Ross v. State, 11552

• Decision Date: 01 July 1980
• Docket Number: No. 11552,11552
• Citation: 601 S.W.2d 672
• Parties: Calvin ROSS, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 672

601 S.W.2d 672

Calvin ROSS, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 11552.

Missouri Court of Appeals, Southern District, Division One.

July 1, 1980.

Richard D. Bender, Springfield, for movant-appellant.

John D. Ashcroft, Atty. Gen., Edward F. Downey, Asst. Atty. Gen., Jefferson City, for respondent.

TITUS, Presiding Judge.

Movant, then defendant, was convicted by a Mississippi County jury (after a change of venue from New Madrid County) of assault with intent to kill with malice aforethought (§ 559.180, RSMo 1969) and armed robbery (§ 560.135, RSMo 1969). The convictions were affirmed upon appeal. State v. Ross, 523 S.W.2d 841 (Mo.App. 1975).

Thereafter, and pursuant to Rule 27.26, V.A.M.R., movant, as an indigent prisoner, filed a pro se motion to set aside the convictions, supra, and the sentences imposed thereon. In accordance with Rule 27.26(h), V.A.M.R., the court nisi appointed counsel for movant and that attorney filed an amendment to subparagraphs 8 and 9 of the motion as originally written. As penned, the amendment is rather repetitive and prolix while covering 12 pages of the transcript on appeal. The matter comes to this court via movant's appeal from denial of his motion without an evidentiary hearing.

Let us first consider some of the ground rules pertinent to this appeal. Even if the circuit court's basis for denying relief was not correct, we must affirm that court's judgment if sustainable for any other reason. State v. Kimes, 415 S.W.2d 814, 815(2) (Mo. 1967). Also, a motion under Rule 27.26, V.A.M.R., may not be employed as a second appellate view of questions and matters which were or should have been raised in the direct appeal. Johnson v. State, 561 S.W.2d 704, 706(4) (Mo.App. 1978); Sherrill v. State, 515 S.W.2d 611, 612(1) (Mo.App. 1974). "A hearing must be held on a motion to vacate, set aside or correct a sentence '(u)nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.' Rule 27.26(e). A motion is sufficient to warrant a hearing only if it alleges facts, not conclusions, which if true, warrant relief, if its allegations are not refuted by the files and records of the case, and if the matters complained of caused prejudice to the prisoner. Haliburton v. State, 546 S.W.2d 771, 773(1) (Mo.App. 1977); Voegtlin v. State, 546 S.W.2d 40, 41(4) (Mo.App. 1977). The burden is on movant to state the facts upon which he bases his claim of ineffective assistance of counsel. Wimberly v. State, 549 S.W.2d 101, 103(3) (Mo.App. 1977)." Tollison v. State, 556 S.W.2d 455, 457(1, 2) (Mo.App. 1977).

In paragraphs I (subpar. 5) and II of movant's amended 27.26 motion, he claims he was denied effective assistance of counsel at the criminal trial because his lawyer failed to object to the admission into evidence of two pistols found in an automobile in which movant was riding after the crimes in question were committed. Movant said this constituted evidence of an uncharged crime, i.e., carrying a concealed weapon, and the display of the pistols was inflammatory and prejudicial. This was not ineffective assistance of counsel because the evidence was proper. Evidence which shows that, following the crime charged, defendant and his joint crime-feasor possessed weapons with which the crime was committed is relevant under an exception to the general rule that the state is not ordinarily allowed to show the commission of other crimes. State v. Kilgore, 447 S.W.2d 544, 547(3) (Mo. 1969); State v. Hindman, 543 S.W.2d 278, 287(27) (Mo.App. 1976); State v. Armbruster, 541 S.W.2d 357, 362(5) (Mo.App. 1976).

Movant asserts, in paragraph V of his motion, the claim of double jeopardy for having been convicted of both assault and armed robbery. He candidly admits that he raised this point on his direct appeal in State v. Ross, supra. As the matter was a point relied on in the direct appeal and was ruled against movant, it is not the proper subject for a Rule 27.26 proceeding. Maggitt v. State, 572 S.W.2d 870, 871(1) (Mo.App. 1978).

In paragraphs I (subpar. 1(a-g)) and III of movant's 27.26 motion, he asserts ineffective assistance of counsel because his attorney in the criminal cause failed to investigate the facts and the law regarding the selection of the petit jury panel so as to ascertain the disproportionate number of whites over blacks. 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).

Paragraph I (subpar. 2(a-d)) of the 27.26 motion claims ineffective assistance of counsel for failure to move for suppression of the in-court identification of movant, then defendant, by witnesses Hardin and Maxwell because of impermissible suggestiveness of a pretrial show-up. A reading of the opinion in State v. Ross, supra, reveals that witness Hardin, the victim of the assault and robbery, had personal confrontation with movant and his accomplice that produced such a high degree of attention for a considerable duration that it was unnecessary for the trial court, even had the matter been raised, to examine the details of the questioned show-up procedures for impermissible suggestiveness. State v. Morgan, 593 S.W.2d 256, 258(4) (Mo.App. 1980). The transcript on appeal in the criminal case reveals that after commission of the crimes charged, movant and associates fled in an automobile that became wrecked about a mile from the scene of the events. Witness Maxwell was at the site of the accident "for quite a period of time" while movant et al. "milled around" the damaged car until they departed in another vehicle. This was proof of an independent source upon which witness Maxwell based his in-court identification of movant. Therefore, it was not necessary, via motion or otherwise, to examine the details of the pretrial identification procedure and counsel could not be held ineffective for omitting to do a futile thing. State v. Little, 572 S.W.2d 871, 873(1, 2) (Mo.App. 1978). In other words, any number of non-errors cannot add up to an error. They cannot be employed to gain succor under a Rule 27.26 motion. Shepherd v. State, 529 S.W.2d 943, 948(9) (Mo.App. 1975).

Under paragraph I (subpars. 4 and 9) of the Rule 27.26 motion, movant asserts his trial counsel in the criminal action was ineffective for failure to object to and pursue alleged errors in two instructions. Averred erroneous trial instructions are not proper subjects for review and consideration in a postconviction motion. Williams v. State, 567 S.W.2d 370, 371(1) (Mo.App. 1978); Jackson v. State, 558 S.W.2d 816, 818(4) (Mo.App. 1977); Williams v. State, 550 S.W.2d 821, 823(5) (Mo.App. 1977); Edwards v. State, 535 S.W.2d 124, 125(1) (Mo.App. 1976).

Paragraph I (subpars. 6 and 7) of the motion claims ineffective assistance of counsel in failing (1) to call three witnesses (two of whom were movant's accomplices in the crimes charged) who allegedly would testify that movant was target practicing the morning the crimes were committed and thus explained the positive gunshot residue evidence offered by the state and (2) in failing to show that movant and his accomplice brother were in New Madrid County for a funeral and that his brother had borrowed $500 for the trip so as to refute the prosecutor's opening statement that at the time of arrest "these men . . . had some money." As previously seen, defendant was positively identified by the victim and by another as being present at the wreckage of the get-away car. 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, whether or not defense counsel undertakes to produce witnesses...