Roulette v. State, KCD

• Decision Date: 03 December 1973
• Docket Number: No. KCD,KCD
• Citation: 504 S.W.2d 331
• Parties: James ROULETTE, Jr., Appellant, v. STATE of Missouri, Respondent. 26272.
• Court: Missouri Court of Appeals

Page 331

504 S.W.2d 331

James ROULETTE, Jr., Appellant, v. STATE of Missouri, Respondent.

No. KCD 26272.

Missouri Court of Appeals, Kansas City District.

Dec. 3, 1973.

Motion for Rehearing and/or Transfer Denied Jan. 4, 1974.

Application to Transfer Denied Feb. 11, 1974.

Willard B. Bunch, Public Defender, William E. Mounts, Asst. Public Defendant, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Daniel P. Card II, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and WASSERSTROM, JJ.

PER CURIAM.

This appeal is from an order denying a Rule 27.26, V.A.M.R., motion to vacate a judgment and sentence imposed upon conviction for murder in the first degree. The allegations of the motion were that movant had been denied the effective assistance of counsel both at the trial of the criminal offense and then on appeal. After an evidentiary hearing on the motion, relief was denied as to all grounds.

Appellant's first complaint is that the brief filed by retained counsel in the Supreme Court on his behalf shows such lack of professional skill and competence to demonstrate denial of effective assistance of counsel on the original appeal and, thus, the benefits of Sixth Amendment to the United States Constitution. Whatever may be the merit of this claim, appellant seeks relief in the wrong forum. Rule 27.26 authorizes a trial court to set aside a judgment of conviction for infirmities arising from trial proceedings only; relief from defects in proceeding before the appellate courts are beyond the scope of the remedy. Such relief is obtainable only in the appellate court of rendition by motion to recall mandate, vacate the judgment of affirmance and redocket the cause for rehearing. State v. Schaffer, 383 S.W.2d 698, 799(6--9) (Mo.1964). Accordingly, relief is denied on this point.

For his second point appellant contends he was denied effective assistance of court-appointed counsel whose incompetence is shown in three particulars: first, counsel did not give sufficient time in preparation of the defense; second, counsel neither interviewed nor called as a witness a companion who had made certain incriminating statements which were used against appellant at the trial; and third, defense counsel failed to strike a venireman who admitted that he was acquainted with the murder victim.

The claim that counsel did not prepare a proper defense was shown by appellant's evidence to be a complaint that counsel did not spend adequate time conferring with him in preparation for trial. Appellant testified that he met his counsel on three occasions: once for forty-five minutes when counsel was appointed, another time four weeks later when a guilty plea was discussed and, then, on the morning of trial. Competency of counsel, however, cannot be determined by the amount of time spent in consultation with his client in the absence of a showing that more time was necessary. State v. Babcock, 485 S.W.2d 85, 89(3, 4) (Mo.1972).

Relief on this point is denied.

Appellant next contends his counsel should have interviewed and called as a witness James Johnson, a companion, who was arrested with appellant and charged with murder arising from the same incident. Johnson had...