State v. Bradley

• Decision Date: 11 June 1991
• Docket Number: No. 73400,73400
• Citation: 811 S.W.2d 379
• Parties: STATE of Missouri, Respondent, v. Mark BRADLEY, Appellant. Mark BRADLEY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 379

811 S.W.2d 379

STATE of Missouri, Respondent, v. Mark BRADLEY, Appellant.

Mark BRADLEY, Appellant, v. STATE of Missouri, Respondent.

No. 73400.

Supreme Court of Missouri En Banc.

June 11, 1991.

Deborah B. Wafer, St. Louis, for appellant.

William L. Webster, Atty. Gen., Joseph P. Murray, Andrea K. Spillars, Asst. Attys. Gen., Jefferson City, for respondent.

PER CURIAM.

This is a consolidated appeal. First, defendant directly appeals his conviction on Count V charging him with kidnapping. He claims the count was duplicitous in that it charged the kidnapping of two victims in a single count. Second, he appeals the dismissal of his Rule 29.15 motion without an evidentiary hearing. Perceiving a potential conflict between its opinion and recent decisions of this Court and because of the general importance of the question presented, and for the purpose of reexamining existing law, the Missouri Court of Appeals, Eastern District, transferred the case here after opinion. Mo. Const. art. V, § 10; Rule 83.02. ¹ The opinion adopted by this Court is, with some modifications, that of the Court of Appeals, authored by the Honorable Carl R. Gaertner. The conviction is affirmed. However, the judgment in the Rule 29.15 proceeding is reversed and remanded for further proceedings.

The facts may be briefly stated as defendant does not challenge the sufficiency of the evidence. On July 6, 1987, as Debra Moore was about to start her car in which Mandy Williams was seated, the driver's door was opened and a man wearing a stocking mask placed a knife against After a four day trial, on February 25, 1988 the jury found defendant guilty of two counts of robbery in the first degree, armed criminal action, assault in the first degree, and kidnapping. On March 28, 1988, the court sentenced defendant on all five counts to a total of seventy-five (75) years of imprisonment. The court found defendant to be a prior, persistent, and class X offender. In accordance with Rule 29.07(b)(4), the court then advised defendant of his right to an appeal and examined defendant under oath as to the quality of the assistance of counsel he received during the proceedings. With defendant's consent his retained trial counsel was present throughout this interrogation. Defendant expressed his dissatisfaction with the representation he had received, specifically complaining about counsel's failure to comply with his request to call as witnesses his father, his brother, and Beverly Ratliff. Trial counsel indicated her awareness of these witnesses by providing the court reporter with Ratliff's first name and the spelling of her last name. She also prompted defendant to include his father among the uncalled witnesses. Counsel was not asked for and did not offer any response to defendant's charges of ineffective assistance.

Moore's neck. He slid in the back seat and ordered Moore to drive. After finding no money in Moore's purse, the man told her to stop. He ordered Williams to give him her jewelry and after she had complied told her to get out of the car. Moore was again ordered to drive, and the man searched her person and appropriated food stamps found in her pocket. He ordered her to stop the car, get in the back seat and perform a sex act. Moore opened the door and ran. The man pursued her, pushed her to the ground and stabbed her in the chest. At one point during the drive the man lifted the stocking mask and Moore saw his face. The next day she identified a photograph of defendant. Later both women identified defendant in a lineup of four men all wearing stocking masks.

The trial court determined there was probable cause to raise an issue of ineffective assistance of counsel and, pursuant to Rule 29.07(b)(4) directed trial counsel to file a notice of appeal and to withdraw. The public defender was appointed to perfect the appeal and to file a Rule 29.15 motion after ascertaining all facts and grounds for such motion.

DIRECT APPEAL

In his only point on direct appeal, defendant challenges his conviction on Count V because he claims it charges two offenses in a single count thereby violating his rights to due process and protection against double jeopardy. Count V of the amended information in lieu of an indictment charged defendant with kidnapping Debra Moore and Mandy Williams. The verdict director based on this charge, Instruction No. 10, patterned after MAI-CR 3d 319.24, reads in part:

As to Count V, if you find and believe from the evidence beyond a reasonable doubt:

First, that on July 5, 1985, in the City of St. Louis, State of Missouri, the defendant removed Debra Moore and Mandy Williams from 4100 N. Grand, and

Second, that such removal was by means of forcible compulsion and was without the consent of Debra Moore and Mandy Williams, and

Third, that defendant removed Debra Moore and Mandy Williams for the purpose of facilitating the commission of robbery in the first degree, then you will find the defendant guilty under Count V of kidnapping. (emphasis added)

While it is true that Count V names two victims, it charges a single crime of kidnapping.

Appellant correctly states the general rule, that an information charging more than one offense in a single count is duplicitous. State v. Mangiaracina et al., 344 Mo. 99, 125 S.W.2d 58, 60 (1939). Rule 23.05 provides that each offense in an indictment or information should be charged in separate counts. A well recognized exception to this rule, however, is that separate offenses may be charged in a single count when "component parts of a continuous transaction committed by the same person [occur] so close in time that they [constitute] a single offense." State v. Villanueva, 598 S.W.2d 161, 163 (Mo.App.1980) quoting State v. Owens, 550 S.W.2d 211 (Mo.App.1977); see State v. Phelps, 478 S.W.2d 304, 307 (Mo.1972); State v. Boone, 289 S.W. 575 (Mo.1926).

The State argues that "the information charging appellant with kidnapping both victims in one count was not defective since the crimes were so related in time and space that they constituted a single offense." Although the Court does not agree with the State's characterization that the kidnapping of two victims constitutes a single offense, there is no reversible error where a prosecutor chooses to name in one count two victims of criminal acts which occur simultaneously and constitute a continuous transaction. Defendant was not prejudiced in any way. The State could have charged defendant in two separate counts resulting in convictions and sentencing for two counts of kidnapping. Furthermore, there was no vagueness, ambiguity, or risk of double jeopardy here. Count V and its verdict director were both phrased in the conjunctive. Therefore, the State increased its burden of proof because the jury had to find defendant guilty of kidnapping both victims. There is no risk that defendant could be recharged with kidnapping either victim. The jury, following the instructions given them, found defendant guilty of kidnapping Debra Moore and Mandy Williams. Defendant's argument, that some, but not all, jurors may have believed he kidnapped Moore while others, but not all, believed he kidnapped Williams, constitutes nothing more than unwarranted speculation and fails to overcome the presumption that each juror followed the court's instructions. State v. Hunter, 586 S.W.2d 345, 348 (Mo.banc 1979). Appellant's first point is denied and his conviction is affirmed.

POST-CONVICTION PROCEEDINGS

In his second point, defendant challenges the dismissal of his pro se Rule 29.15 motion without an evidentiary hearing. He also challenges the effectiveness of his appointed motion counsel asserting that she failed to file an amended motion or to otherwise assist him in the post-conviction relief proceedings.

On August 29, 1989, defendant timely filed a pro se motion pursuant to Rule 29.15. Although it appears from the record that this was the only motion filed by defendant, it is curiously styled: "First Amended Motion to Vacate, Correct or Set Aside the Sentence and Judgment Pursuant to Rule 29.15." In his pro se motion, defendant asserted multiple grounds for ineffective assistance of counsel. On appeal, his brief focuses on point (1) of the pro se motion dealing with trial counsel's failure to interview, subpoena and call as defense witnesses Beverly Ratliff, Thomas Bradley, Sr., and Thomas Bradley, Jr. Defendant asserted in point (1) that these witnesses "would have testified to [his] whereabouts at the precise time of the alleged offense." He further alleged that he informed counsel of these witnesses and their whereabouts prior to trial.

Defendant's appointed counsel also filed a Rule 29.15 motion on August 29, 1988. It should be noted this was the final day such a motion could have been timely filed. On its face the motion filed by counsel is clearly a nullity. Nowhere did movant sign or verify it nor does it state facts sufficient to warrant post-conviction relief. Along with the motion, however, appointed counsel filed a motion for a continuance in order to amend the motion. She stated a continuance is necessary "for the reason that additional time is needed to establish grounds for ineffective assistance of counsel and to contact alibi witnesses." The court granted counsel an additional thirty days to amend the motion. Counsel, however, never filed an amended motion. The record is silent as to whether counsel ever contacted defendant regarding his post-conviction proceedings let alone whether she contacted the named alibi witnesses. On June 5, 1989, the court filed its findings, conclusions, and order denying defendant's pro se motion without an evidentiary hearing.

Review of the motion court's action is "limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 29.15(j). The motion court's findings, conclusions, and order are clearly erroneous only if a review of the entire record...