Shepherd v. State, 9895
| Decision Date | 06 November 1975 |
| Docket Number | No. 9895,9895 |
| Citation | 529 S.W.2d 943 |
| Parties | Gary Paul SHEPHERD, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Kerry D. Douglas, Bolivar, for movant-appellant.
John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
Before STONE, P.J., and HOGAN and TITUS, JJ.
Convicted of first degree robbery and in accordance with the jury's verdict, movant was sentenced on June 16, 1971, to 15 years. Under § 546.615 RSMo 1969 (before amendment, Laws 1971, S.B. 294, effective September 28, 1971), the trial court denied credit for time movant spent in jail prior to conviction. The conviction was affirmed upon appeal. State v. Shepherd, 494 S.W.2d 53 (Mo.1973). After evidentiary hearing and denial of his Rule 27.26 motion to vacate and set aside the conviction, movant has now appealed to this court.
To sustain the robbery charge, the state's evidence showed that movant and his sister-in-law, Hazel Shepherd, went to the home of crippled 77-year-old Hillard Dickinson to 'get some guns.' Upon arriving at the home, movant kicked in a door to gain entry, obtained guns, fired shots with a rifle and shotgun inside the house, hit Dickinson with a gun, damaged some furniture, demanded and obtained money, left with the money and three guns, and fired additional shots from outside the house to prevent being followed by the victim. Mrs. Shepherd pleaded guilty to making a felonious assault upon Mr. Dickinson and appeared as a state's witness on the robbery charge. Court-appointed counsel was provided movant at the preliminary hearing; different court-appointed counsel was furnished for the trial in the circuit court and in the direct appeal from the robbery conviction; and still other appointed counsel has served movant on his Rule 27.26 motion, its hearing and appeal. Movant has been permitted to proceed as a poor person in all proceedings and has been provided with transcripts on all appeals.
Movant's first point on appeal is that he was denied a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and was denied the right to confront his accuser as guaranteed by the Sixth Amendment to the United States Constitution because neither the state nor his court-appointed counsel called Hillard Dickinson as a witness at the preliminary hearing and because his court-appointed counsel failed to adequately prepare for the preliminary hearing by subpoenaing, interviewing or deposing Mr. Dickinson.
In Missouri the state is not required to call to the stand all persons who allegedly witnessed the crime charged (State v. Jones, 456 S.W.2d 7, 8(2) (Mo.1970); State v. Kinne, 372 S.W.2d 62, 66(5) (Mo.1963)), and since Mr. Dickinson did not testify, movant's rights of confrontation and cross-examination never arose. State v. Ivey, 442 S.W.2d 506, 508(4) (Mo.1969); State v. Triplett, 520 S.W.2d 166, 171(15) (Mo.App.1975).
Following the alleged robbery on January 24, 1971, Mr. Dickinson was described as being 'in shock . . . he was practically helpless.' He was hospitalized February 17, 1971, and died before the circuit court trial was held on May 25, 1971. The lawyer who represented movant at the March 16, 1971, preliminary hearing was appointed on March 5, 1971. Before and after the preliminary hearing, Mr. Dickinson's son recalled his father 'wasn't able for nothing,' his mental condition 'was bad . . . he didn't know us a lot of the time (and) as time went, his mind kept getting weaker and weaker.' Mr. Dickinson was not physically able to attend the preliminary hearing. When his son attempted to discuss the robbery, the victim wasn't able to answer questions concerning the incident 'all (the) time,' his memory 'wasn't too good' although there 'probably could have been a few days' when he could have talked to someone.
Of course, movant had the burden of establishing his grounds for relief by a preponderance of the evidence. Rule 27.26(f). He did not establish that Mr. Dickinson was physically and mentally able to attend a preliminary hearing at any time. Neither did he show that the victim could have been effectively deposed. Likewise, movant's evidence did not reveal how Mr. Dickinson's testimony would have assisted him at trial or at the preliminary hearing, or how interrogation of the victim by appointed counsel would have been of benefit. Whether a defendant's lawyer should subpoena a certain witness to testify at a preliminary hearing, especially if that witness could reasonably be expected to be hostile to the accused because he was the victim of the crime charged, is a matter of trial tactics or strategy which is not a proper subject of inquiry for courts reviewing a Rule 27.26 motion and affords no basis for relief. Johnson v. State, 516 S.W.2d 500, 501(4) (Mo.App.1975).
Points relied on numbered III and V may be considered together. One complains of the alleged improper argument made by the prosecuting attorney at the robbery trial; the other complains that movant was denied effective assistance of counsel because his court-appointed attorney failed to object to the prosecutor's argument and thus preserve a record regarding same for review on appeal by an appellate court. The answer to the first complaint is that alleged improper arguments are not matters which afford a basis for relief on a Rule 27.26 motion. Booth v. State, 491 S.W.2d 286, 288 (Mo.1973). To answer the second complaint, it suffices to note that albeit appointed counsel did not object to the argument, the Supreme Court did in fact consider the matter on direct appeal thusly: State v. Shepherd, supra, 494 S.W.2d at 54. Movant is not entitled to use a Rule 27.26 motion to obtain a second review of a previously decided issue even though he may have a different theory for seeking a favorable decision. Weaver v. State, 520 S.W.2d 640, 643(2) (Mo.App.1975).
Point IV of movant's appeal brief alleges he was deprived of effective assistance of counsel at the robbery trial because his appointed counsel failed to lay the proper foundation to afford admission of a note purportedly written by Mrs. Shepherd to movant which, according to him, would have discredited Mrs. Shepherd as a witness for the state. The transcript of the robbery trial is before us, having been offered and received in the evidentiary hearing on the Rule 27.26 motion. At the trial on the criminal charge, movant's then attorney had marked as Defendant's Exhibit No. 2 what movant claims was the same as Exhibit C introduced and received as evidence at the hearing on his motion. The transcript of the criminal charge prepared by the reporter who marked Exhibit No. 2, describes it as 'an unsigned, hand-printed note, with rough, torn edges at the top and bottom of same.' (Emphasis supplied). However, we note from physical and visual examination of Exhibit C, that it is in three pieces (the top and bottom apparently hand-printed on notebook paper with the middle third, which contains the words deemed vital to movant, supplied by Xerox reproduction), that the top and bottom do not have 'rough, torn edges,' that the note is signed 'Hay' (presumably short for Hazel, the given name of Mrs. Shepherd), and that neither the front nor back of Exhibit C has been marked as 'Defendant's Exhibit No. 2.'
The matter regarding Exhibit No. 2 or Exhibit C arose in this fashion. Movant's counsel at the robbery trial established...
To continue reading
Request your trial
-
Garton v. Swenson
...ineffectiveness rule and its narrow scope of post-conviction evidentiary hearing in a Sixth Amendment case in Shepherd v. State (Mo.App.1975), 529 S.W.2d 943, 948. More significantly, Worley was again cited and relied upon by the Supreme Court of Missouri in Coney v. State (Mo.1973), 491 S.......
-
Valentine v. State
...deeming its opinion to be in conflict with the opinion of the Court of Appeals, Springfield District, in the case of Shepherd v. State, Mo.App., 529 S.W.2d 943 (1975) the case was transferred to this court for reexamination of the existing law. We will determine the case here the same as on......
-
Jennings v. State, 12274
...The movant in this proceeding presented no evidence to demonstrate that any of these things were in fact true. Compare Shepherd v. State, 529 S.W.2d 943 (Mo.App.1975). The point is The movant also claims trial counsel was ineffective by not objecting to the coercion to which the jury was su......
- State v. Richards