State v. Colbert

• Decision Date: 19 August 1997
• Docket Number: Nos. WD,s. WD
• Citation: 949 S.W.2d 932
• Parties: STATE of Missouri, Respondent, v. Darryl S. COLBERT, Appellant. 51114, WD 53325.
• Court: Missouri Court of Appeals

Page 932

949 S.W.2d 932

STATE of Missouri, Respondent, v. Darryl S. COLBERT, Appellant.

Nos. WD 51114, WD 53325.

Missouri Court of Appeals,

Western District.

Aug. 19, 1997.

Jeannie A. Willibey, Assistant Public Defender, Kansas City, for Appellant.

Philip M. Koppe, Assistant Attorney General, Kansas City, for Respondent.

Before EDWIN H. SMITH, P.J., and BERREY and ELLIS, JJ.

EDWIN H. SMITH, Presiding Judge.

Darryl S. Colbert was convicted on January 25, 1995, by jury in the Circuit Court of Jackson County of one count each of forcible rape, § 566.030.1 RSMo Supp.1993 ¹, kidnapping, § 565.110, and robbery in the first degree, § 569.020. On April 21, 1995, he was sentenced to life imprisonment for forcible rape, fifteen years imprisonment for kidnapping and thirty years imprisonment for first-degree robbery, all three sentences to run consecutively. Appellant appeals his convictions and sentences and the denial of his Rule 29.15 motion for postconviction relief without an evidentiary hearing. His appeals have been consolidated pursuant to Rule 29.15(l).

In appealing the denial of his Rule 29.15 motion without an evidentiary hearing, appellant in Point I alleges that he received ineffective assistance of counsel in that his trial counsel failed to: (1) object to hearsay statements; (2) adequately prepare for trial; (3) object to inadmissible evidence; (4) conduct a proper voir dire and challenge the State's peremptory strikes removing prospective African-American jurors; (5) timely seek withdrawal from the case; (6) adequately challenge DNA evidence in the case with a defense expert or through cross-examination; and (7) advise him of the State's first plea offer. On direct appeal, appellant alleges in Point II that the trial court erred in failing to exclude from evidence sua sponte statements appellant made to the police after requesting the assistance of counsel.

We reverse and remand in part and affirm in part.

Facts

The evidence, which we review in the light most favorable to the verdict, State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995), reveals the following:

Around 9:00 p.m., on January 26, 1994, L.P. was getting out of her car in front of her home when she was confronted by a man she later identified as appellant, Darryl S. Colbert. He told her not to scream or he would shoot her. Appellant told L.P. to get back into the car, and he drove away from her house. While appellant was driving, he ordered L.P. to give him the money she had and her wedding ring. He stopped the car on a dead-end street, raped L.P. and told her to get dressed while he drove. He told her that if she told the police he would kill her. Appellant stopped the car again, got out and told her to drive away. When L.P. returned to her home, she told her husband what had happened. He called the police, who transported her to a hospital emergency room for a physical examination. Cervical specimens and fluid samples were taken at that time.

That night, Detective Jan Wallace, of the Kansas City Police Department's Sex Crimes Unit, learned of a surveillance videotape from a gas station in which an individual matching the description of L.P.'s assailant appeared. Detective Wallace then discovered that the man in the surveillance tape matched the description of an individual who had recently been arrested and was in detention at police headquarters. Detective Wallace notified appellant that he was a possible suspect in a rape investigation. When told that he would appear in a lineup, he requested an attorney, at which time Wallace told him that he would not be questioned. L.P. identified appellant as the individual who abducted and raped her.

After the lineup, Wallace and another officer escorted the participants, including appellant, back to the holding area. Overhearing Detective Wallace discuss the surveillance videotape with the other officer, appellant asked about the videotape, and Detective Wallace replied that she could not discuss it with him because he had requested an attorney. At that point, appellant said that he did want to waive his right to an attorney and signed a Miranda-waiver form. After viewing the videotape, appellant eventually admitted that he had been in the gas station on January 26, 1994, the date of the rape. Later, Detective Wallace indicated to appellant that she would be leaving for the night, and asked appellant if he wanted to talk again. Appellant agreed, and Detective Wallace read his Miranda rights. He stated, "I did it," and proceeded to relate a number of details that corroborated L.P.'s story. Appellant then signed his written statement.

On February 18, 1994, the State charged appellant by indictment in the Jackson County Circuit Court with one count of forcible rape, one count of kidnapping and one count of first-degree robbery. Appellant filed a motion to suppress before trial with respect to all statements made to the police, which the trial court denied after a hearing. The trial court also overruled appellant's motion for acquittal at the close of all of the evidence. After closing arguments, the jury returned verdicts of guilty on all three counts on January 25, 1995. On April 21, 1995, the trial court overruled appellant's motion for new trial and sentenced him to life imprisonment for forcible rape, fifteen years imprisonment for kidnapping and thirty years imprisonment for first-degree robbery, all to run consecutively.

Appellant filed a timely pro se Rule 29.15 motion, which was amended by appointed counsel. On March 3, 1996, the motion court granted appellant an evidentiary hearing with respect to one of his allegations of error, an issue appellant later waived. On July 17, 1996, the motion court entered its findings of fact and conclusions of law denying the remaining claims without an evidentiary hearing. This appeal followed.

I. Rule 29.15 Appeal

Standard of Review

Appellate review of the motion court's denial of a postconviction relief motion is not a de novo review; rather, the findings of fact and conclusions of law of the motion court are presumptively correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). Review of a motion court's actions is limited to a determination of whether the trial court's findings and conclusions are clearly erroneous. Rule 29.15; State v. Driver, 912 S.W.2d 52, 54 (Mo. banc 1995). Findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Wilson, 813 S.W.2d at 835.

Discussion

In his first point, appellant claims that the trial court erred in denying his Rule 29.15 motion without an evidentiary hearing. In his motion, he alleged that he received ineffective assistance of counsel in that his trial counsel failed to: (1) object to hearsay statements; (2) adequately prepare for trial; (3) object to inadmissible evidence; (4) conduct a proper voir dire and challenge the State's peremptory strikes removing prospective African-American jurors; (5) timely seek withdrawal from the case; (6) adequately challenge DNA evidence in the case with a defense expert or through cross-examination; and (7) advise him of the State's first plea offer.

As a preliminary matter, we note that appellant's Point I does not comply with the Rule 30.06(d) requirement that the point should "briefly and concisely" state what actions or rulings of the court are sought to be reviewed. As the State correctly observes, appellant's four-page Point I is neither brief nor concise, and does little more than restate his allegations already ruled on by the motion court. An insufficient point relied on under Rule 30.06 preserves nothing for review. State v. Nenninger, 872 S.W.2d 589 (Mo.App.1994), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 503 (1994). Although a motion for postconviction relief is denominated a civil action, the underlying issues involved are criminal. In criminal cases "when appellant's arguments make clear the grounds for alleged error, it is preferable to decide cases on the merits to avoid punishing appellant for the shortcomings of appellate counsel." State v. Rehberg, 919 S.W.2d 543, 548 (Mo.App.1995), citing State v. Sloan, 756 S.W.2d 503, 505 (Mo. banc 1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1174, 103 L.Ed.2d 236 (1989); State v. Tivis, 884 S.W.2d 28, 29 (Mo.App.1994). Thus, we will exercise our discretion and review the claims raised in appellant's Point I.

To prove ineffective assistance of counsel, the movant must show that: (1) trial counsel did not demonstrate the customary skill and diligence that a reasonably competent attorney would display rendering similar services under the existing circumstances; and that (2) he or she was prejudiced by such conduct or lack thereof. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To demonstrate prejudice, the movant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994).

Movant faces a heavy burden in establishing a claim for ineffective assistance of counsel. Not only must the defendant prove his or her allegations by a preponderance of the evidence, but the defendant must overcome the court's presumption that counsel is competent.

Yoakum v. State, 849 S.W.2d 685, 687 (Mo.App.1993) (citations omitted). Reasonable trial strategy will not support an ineffective assistance of counsel claim. Harris, 870 S.W.2d at 814. To be entitled to an evidentiary hearing on a motion for postconviction relief for ineffective assistance of counsel: (1) a movant must allege facts, not conclusions, which, if true, would warrant relief; (2) the facts must raise matters not refuted by the record; and (3) the matters complained of must have...