State v. Davis, KCD
| Decision Date | 31 December 1973 |
| Docket Number | No. KCD,KCD |
| Citation | 505 S.W.2d 115 |
| Parties | STATE of Missouri, Respondent, v. Larry Earl DAVIS, Appellant. 26270. |
| Court | Missouri Court of Appeals |
Austin F. Shute, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Richard E. Vodra, Asst. Atty. Gen., Jefferson City, for respondent.
Before DIXON, C.J., and PRITCHARD and SOMERVILLE, JJ.
This is a direct appeal from a conviction of robbery in the first degree and a sentence of fifteen years. Defendant contends in a motion filed by counsel that the trial court erred in denying a new trial on the basis of newly-discovered evidence. By pro se motion, defendant contends he was denied effective assistance of counsel.
Ernest Jones, the victim of the robbery, was a participant in a crap game behind a tavern. He was a winner of an unspecified amount, though he entered the game with $780. Jones left the game and was entering his car when a man approached him, stuck a gun in his face and demanded his money. The man and Jones scuffled and fell to the ground, and the gun was fired. As Jones began to rise from the ground, a second assailant approached Jones, placed a gun in his back and fired twice. Wounded, Jones leaned against a car as the assailants relieved him of his money and then escaped.
At trial, Jones identified defendant as the man who first stuck him up and with whom he had wrestled. Jones had seen defendant around the tavern on other nights and had seem him standing near the crap game before he was attacked. Also, he knew defendant from an occasion sometime before the night of the crime when he had given him a ride. Jones had picked defendant's picture from a dozen or so shown him by the police, and had identified him at the police lineup.
Defendant, his mother, sister and brother-in-law took the stand to testify that he had been home all day on the day of the crime. They testified that defendant had gone to the tavern only after they had heard the police cars and the ambulance go by. Another defense witness, John 'Junior' Moore, testified he had been a participant in the crap game and had seen Jones wrestling with his first assailant. Though Moore could not identify the assailant, he was sure it was not the defendant. Moore said the first time he saw the defendant that day was after the police cars and ambulance had arrived.
The jury found defendant guilty and recommended a sentence of thirty years. Defendant moved immediately to be allowed to put on the testimony of Leroy Sherrils. The court granted permission for Sherrils to testify.
Sherrils said he had been a player in the crap game and had seen Jones being robbed. He knew who Jones' attackers were, but said the defendant was not one of them. Although the trial judge pressed him vigorously, he refused to give the names of the persons he claimed were the assailants. It is worth noting in light of subsequent events that the trial judge indicated in the record at the time the evidence was offered and heard that the witness was intoxicated. The witness stated he had not come forward before because he did not want to get involved with 'street activities.'
As noted, defendant's trial attorney filed a motion for a new trial on the grounds of newly-discovered evidence and a motion to reduce appellant's sentence. At the hearing on these motions, the State put on evidence which tended to show that Sherrils had come to the prosecutor's office the day after he testified and withdrawn his story, saying he had been drunk when he testified.
On appeal, appellant's first point urges that this court find that a new trial should have been granted on the newly-discovered evidence of Leroy Sherrils, and Ernest Jones' alleged withdrawal of his identification of appellant.
State v. Pinkerman, 349 S.W.2d 951 (Mo.1961), holds that a new trial on the basis of newly discovered evidence should be granted when the appellant succeeds in showing:
Measured by this standard, Sherrils' testimony appears, first, to have been discoverable by the exercise of due diligence in the same manner as John 'Junior' Moore had been turned up to testify to largely the same facts. Also, his testimony is cumulative of Moore's because he did testify to (largely) the same events. Finally, Sherrils apparently made a withdrawal of his testimony after he had given it. The trial court overruled this motion and properly so; we affirm that action.
Appellant filed a pro se motion for a new trial alleging the ineffective assistance of counsel. Specifically, he charged that his trial attorney had not investigated Jones before the trial so as to find out he could be impeached as to his identification of the appellant. Secondly, he claimed counsel had failed to convey the story of Jones' alleged recantation of his identification of appellant to the court before the jury retired. Thirdly, he claimed that his attorney had not sought out a key witness, one Charles Ross, with sufficient energy, and, finally, that the attorney had failed to file motions for acquittal and preserve any trial errors.
At a subsequent hearing on defendant's pro se motion, defendant's brother-in-law, John Schockley, said Jones had told him he knew the defendant had not committed the crime. According to the witness he was given this information sometime after the presentation of the evidence for both sides, while out in the hall of the courthouse. He conveyed this information to the defendant. Defendant testified he had told his attorney about Jones' allegedly recanting before the final argument was offered, but that Harwood had refused to tell the court about it. Defendant testified that he had asked trial counsel to assure that Charles Ross would testify, but that trial counsel had not really tried to obtain him. He voiced other dissatisfactions with his attorney concerning the filing of motions and the preservation of trial error. None of these present any error, let alone prejudicial error.
Trial counsel testified he was not sure when he had first heard...
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Johnson v. State, KCD
...trial by conduct of counsel.' Sims v. State, 496 S.W.2d 815, 817 (Mo.1973); Myrick v. State, 507 S.W.2d 42 (Mo.App.1974); State v. Davis, 505 S.W.2d 115 (Mo.App.1974). See McQueen v. Swenson,498 F.2d 207, l.c. 213--215 (8th Cir. 1974). It is axiomatic that appellate review of counsel's comp......
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