State v. Boyd, s. 17321
| Decision Date | 08 December 1992 |
| Docket Number | 17927,Nos. 17321,s. 17321 |
| Citation | 842 S.W.2d 899 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Ronald Gene BOYD, Defendant-Appellant. Ronald Gene BOYD, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
J. Gregory Mermelstein, Columbia, for Ronald Gene Boyd.
William L. Webster, Atty. Gen., Robert Alan Kelly, Asst. Atty. Gen., Jefferson City, for State.
The defendant Ronald Gene Boyd was found guilty by a jury of the class C felonies of burglary in the second degree, § 569.170, RSMo 1986, and stealing, § 570.030, RSMo 1986, and sentenced by the trial court as a prior and persistent offender, § 558.016, to two consecutive terms of ten years' imprisonment. He appealed in our case No. 17321.
The defendant sought postconviction relief pursuant to Rule 29.15. 1 In his pro se motion he alleged his trial attorney was ineffective because he "failed to properly investigate ... defense witnesses and failed to call defense witnesses...."
A public defender, appointed to represent the defendant, filed an unverified amended motion. At an August 17, 1990, hearing, the motion court denied the appointed lawyer's request that the defendant be allowed to verify the amended motion. The hearing proceeded on the original motion, and the motion court denied relief. The defendant appealed in our case No. 17178, which was consolidated with the appeal from his convictions, case No. 17321. We reversed the order denying postconviction relief and remanded for a motion court determination of whether postconviction counsel met the requirements of Rule 29.15(e). We suspended the appeal of the convictions. See State v. Boyd, 816 S.W.2d 19 (Mo.App.1991).
On November 13, 1991, the motion court conducted a second hearing, limited solely to the issue of abandonment by postconviction counsel. The motion court denied relief, after concluding that postconviction counsel performed as required by Rule 29.15(e). The defendant appealed in our case No. 17927, which we have consolidated with case No. 17321.
In case No. 17321, the defendant contends the trial court abused its discretion in overruling his motion for a continuance so that he might hire private counsel. In case No. 17927, the defendant contends the motion court erred in denying postconviction relief, arguing that he received ineffective assistance of trial counsel and that he was abandoned by his postconviction counsel.
We affirm in both cases.
The defendant does not challenge the sufficiency of the evidence to convict him. Here we recite only those facts necessary for resolution of his appeal of his convictions. We set forth additional facts in our discussion of the defendant's appeal from the denial of postconviction relief.
This case originated in Barton County; it was transferred to Dade County upon the defendant's motion for a change of venue. On December 14, 1989, the date originally set for trial, the defendant, represented by the public defender, filed a motion for a continuance, giving three reasons: his desire to hire private counsel, the absence in the record of a written report of his mental examination, and the need for further investigation of alibi witnesses. Because of the absence of the mental examination report, the trial court granted the continuance. At that time, the trial judge stated to the defendant that if he desired private counsel, "I suggest you get busy doing it at this time, because when this case is again set for trial, I will not view favorably a request for another continuance to hire private counsel." The court set February 15, 1990, as the new date for trial.
At a pre-trial hearing on February 15, the defendant sought another continuance, offering as one reason his desire to hire private counsel. At the hearing, the defendant testified about his attempts to obtain a private attorney. Summarized, his testimony was that he had been incarcerated in the Dade County jail approximately two and one-half months; that he had been attempting since November 1989 to hire private counsel; that certain persons had agreed to provide financial assistance to enable him to hire private counsel, but when he wrote them concerning money they did not respond; and that personnel of the Dade County Sheriff's Department refused his requests to use the telephone to contact persons who would provide money to him. Portions of the defendant's testimony are set out marginally. 2
The trial court denied the request for a continuance. Immediately thereafter, a jury was selected, the trial was conducted, and the defendant was convicted.
The defendant contends the trial court "abused its discretion in overruling [his] motion for a continuance so that he could hire private counsel because the failure to grant the continuance denied [him] his rights to due process of law and to effective assistance of counsel ... in that [he] was forced to go to trial with inadequate counsel...."
A trial court's discretion in deciding whether to grant a continuance to allow a defendant a choice of attorney has been described as "vast," State v. Smith, 607 S.W.2d 737, 738 (Mo.App.1980), and to prove trial court abuse of discretion in denying a motion for a continuance requires a "very strong showing." State v. Cuckovich, 485 S.W.2d 16, 21-22 (Mo.banc 1972). The constitutional right to counsel does not mean that an accused is entitled to a particular attorney, State v. Turner, 623 S.W.2d 4, 11 (Mo.banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982), and an "accused's right to private counsel is limited by the state's right to proceed to trial after the accused has been afforded a fair opportunity to engage his own counsel and adequate time to prepare his defense, and does not include the right to defeat or impede the orderly processes of the administration of justice." State v. Crider, 451 S.W.2d 825, 828 (Mo.1970). See also State v. Wilson, 816 S.W.2d 301, 304[4, 5] (Mo.App.1991). "It is only where the accused can justify the need to change counsel and can demonstrate that he was not dilatory in seeking other representation that he can be entitled to a continuance on the day set for trial in order to obtain different counsel." State v. Gaskin, 618 S.W.2d 620, 626 (Mo.1981), vacated on other grounds sub nom. Missouri v. Haggard, 459 U.S. 1192-93, 103 S.Ct. 1171-72, 75 L.Ed.2d 423-24 (1983).
The defendant decided as early as November 1989 that he wanted to hire private counsel. On December 14 the trial judge advised the defendant that if he was going to hire his own lawyer, he had to do so by February 15, 1990, the rescheduled trial date, and warned him that on that date he would "not view favorably a request for another continuance to hire private counsel."
The defendant argues he was diligent in his efforts to obtain private counsel. He asserts that he had obtained "initial commitments from Wise and Ershom to put up money for this purpose." Based on the record, this assertion is conjectural, at best. The defendant testified that Deana Wise and Tracie Ershom had agreed to supply "part of the money." The defendant also said that he planned to write an unnamed person who had visited him during the week prior to trial who "would be willing to help me with money." The defendant admitted that earlier letters he had written concerning money had gone unanswered. There is nothing else in the record to indicate the defendant had any likelihood of obtaining private counsel if he were given more time. The trial court did not abuse its discretion in refusing to grant the continuance.
The defendant also argues that the trial court's refusal to grant a continuance denied him his right to effective assistance of counsel, citing Turner, 623 S.W.2d at 11, for the proposition that the trial court's discretion in making its ruling "should not be lightly disturbed when it appears the defendant was not denied skilled and competent representation." Because of our conclusion that the trial court did not abuse its discretion in denying a continuance, we need not consider, in case No. 17321, the defendant's various allegations of ineffective assistance of trial counsel. 3
We affirm the judgment in case number 17321.
TRIAL COUNSEL'S PERFORMANCE
Prior to reciting facts pertaining to the defendant's postconviction relief efforts, we summarize trial testimony essential to an understanding of the defendant's points on appeal.
The victim, Darrell McDonald, lived about five and one-half miles northwest of Golden City. He left his home about 5:30 p.m., August 27, 1988, to go to Joplin with a friend. Upon his return between 1:30 and 2:00 a.m., August 28, McDonald discovered two doors of his house standing open and several items of personal property missing. At trial, McDonald identified three of those items: a mounted deer head (state's exhibit 9) and two stereo speakers (state's exhibits 10 and 11).
Ralph Dunlap testified that on August 27 he and the defendant left Dunlap's Golden City residence in Dunlap's pickup truck when "[i]t was dark, it was late in the afternoon," and drove to a point a mile west of the McDonald residence where they parked the vehicle. They walked to the McDonald house, forced open the back door, and placed several items of property, including a deer head and two stereo speakers, outside the back door. They walked back to the truck, drove to the McDonald house, and loaded the property into the truck. They drove to Dunlap's residence where they unloaded the speakers and a television set and then went to the home of a Kathy Coats where they put the rest of the property in her basement. Asked how much time elapsed "from the time you left your trailer until you took the property back," Dunlap replied, "A couple of hours." At...
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