State v. Dunmore, s. WD

• Decision Date: 17 December 1991
• Docket Number: Nos. WD,s. WD
• Citation: 822 S.W.2d 509
• Parties: STATE of Missouri, Respondent, v. Tommy DUNMORE, Appellant. Tommy DUNMORE, Appellant, v. STATE of Missouri, Respondent. 42426, WD 43910.
• Court: Missouri Court of Appeals

Page 509

822 S.W.2d 509

STATE of Missouri, Respondent, v. Tommy DUNMORE, Appellant.

Tommy DUNMORE, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 42426, WD 43910.

Missouri Court of Appeals,

Western District.

Dec. 17, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 28, 1992.

Application to Transfer Denied Feb. 25, 1992.

Robert G. Duncan, Kansas City, for appellant.

William L. Webster, Atty. Gen., Denise L. Garnier, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and FENNER and BRECKENRIDGE, JJ.

FENNER, Judge.

Appellant Tommy Dunmore, appeals his convictions of assault in the first degree pursuant to § 565.050, RSMo 1986, and armed criminal action pursuant to § 571.015, RSMo 1986. Appellant also appeals the denial of his post-conviction motion under Rule 29.15.

The evidence was that appellant and the victim herein, Robert Newsome, had a business relationship that had not gone well. Appellant felt that Newsome had not treated him fairly in their business relationship and appellant hired Bruce Charles to kill Newsome.

On June 8, 1988, Bruce Charles shot Newsome four times. After shooting Newsome, Bruce Charles drove to the Citadel Apartments, as previously arranged, to meet appellant. While at the apartments, they agreed to meet again later in the day. Later that day, the two men met at the Landing Shopping Center. By the time appellant met Charles at the Landing, appellant had learned that Newsome did not die from the shooting. Appellant paid Bruce Charles one thousand dollars, which was one half of their agreed contract price, and told Bruce Charles to finish the job.

On September 23, 1988, Bruce Charles was arrested on a parole violation. Once in custody, Charles confessed that he shot Newsome and advised the police that appellant had hired him to do so.

In his first point on appeal, appellant argues that the trial court denied his right to due process and his right to trial by jury by ordering him to not smile at, or have eye contact with, the jury.

The record reflects that appellant's behavior in smiling at and staring at the jury during the course of the trial was disruptive and improper. The trial court was extremely patient with appellant in warning him of the impropriety of his behavior and admonishing him outside the hearing of the jury. Nonetheless, appellant's behavior persisted until the court advised appellant that he would be removed from the courtroom if he did not stop attempting to communicate with the jury by means of improper eye contact.

Since no objection to the court's admonition was made at trial, any review is limited to the standard of plain error which exists only when the court finds that a manifest injustice or a miscarriage of justice has occurred. State v. McMillin, 783 S.W.2d 82, 95 (Mo. banc), cert. denied 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). (citation omitted).

The trial court is vested with a large amount of discretion in the conduct of a trial carried on before it. State v. Pinkston, 333 S.W.2d 63, 66 (Mo.1960). It is the duty of the trial court to maintain order and decorum, and to exercise a general control over the trial. Id.

By ordering appellant not to make improper eye contact with the jury, the trial court was exercising its duty to maintain control over the proceeding and there was no error, plain or otherwise.

Appellant's first point is denied.

In his second point, appellant argues that the Rule 29.15 motion court erred by finding that his trial counsel was not ineffective. Appellant argues that trial counsel was ineffective as follows: 1) by failing to call appellant's girlfriend, Jewel Robbins, as an alibi witness; 2) by failing to show that either Bruce Charles had a mental problem or that Bruce Charles testified falsely in a previous proceeding that he had a mental problem; 3) by failing to call potential witnesses to impeach Bruce Charles; 4) by failing to present evidence that the victim, Robert Newsome, was not able to identify Bruce Charles as the man who shot him; 5) by failing to present evidence of attempts on appellant's life by Newsome's brothers; 6) because trial counsel denied him his right to testify; and 7) because trial counsel had a conflict of interest.

Appellate review of a motion court's findings and conclusions is limited to a determination as to whether the findings and conclusions are clearly erroneous. Day v. State, 770 S.W.2d 692, 695 (Mo. banc), cert. denied, sub nom. Walker v. Missouri, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989). The findings and conclusions by a motion court are clearly erroneous only if a review of the entire record leaves the court with a definite and firm impression that a mistake has been made. Id. at 695-696. The motion court is not required to believe the testimony of a movant and an appellate court must defer to the motion court's determination of credibility. Starr v. State, 788 S.W.2d 549, 552 (Mo.App.1990).

Furthermore, to prove a claim of ineffective assistance of counsel, appellant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant fails to prove either of these prongs, his claim of ineffectiveness fails. Strickland, Id. Additionally, in order to prove that he was prejudiced by his counsel's deficient performance, he must show that but for his counsel's errors, a reasonable probability exists that a different outcome would have resulted. Sanders v. State, 738 S.W.2d at 861.

In his first allegation of ineffectiveness, appellant complains that trial counsel neglected to call his girlfriend, Jewel Robbins, as an alibi witness.

The selection of witnesses and the introduction of evidence are matters of trial strategy and the mere choice of trial strategy is not a foundation for finding ineffective assistance of counsel. Sanders v. State, 738 S.W.2d at 858.

Jewel Robbins testified at the motion hearing that on June 8, 1988, she was in the hospital having given birth to appellant's son. Appellant represents that if Jewel Robbins had been called at trial, she would have testified that on June 8, 1988, appellant was at the hospital with her. Appellant argues that this would have shown that he could not have met with Bruce Charles on that date as Charles testified. However, Robbins testified at the motion hearing that she did not specifically remember June 8, 1988. Robbins testified that appellant was at the hospital when they received word that Newsome had been shot, but that she didn't remember what time he left.

Appellant's trial counsel testified at the motion hearing that he talked to Robbins prior to trial and that she "didn't particularly want to testify." Trial counsel further testified that as a matter of trial strategy he was concerned that having Robbins testify might be harmful if it appeared that appellant was attempting to create an "airtight alibi."

Counsel's decision not to call Robbins as a witness was within counsel's professional judgment. It was trial strategy and not ineffective assistance.

In his second allegation of ineffectiveness, appellant argues that counsel was ineffective by failing to show that either Bruce Charles had a mental problem or that Bruce Charles testified falsely in a previous proceeding that he had a mental problem.

The evidence at the motion hearing did not show that Bruce Charles had a mental problem. The evidence did show that Bruce Charles had falsely alleged, in a previously filed Rule 27.26 motion of his own, that he suffered from a mental problem. However, Bruce Charles was an admitted contract killer and the fact that he made a false statement in an effort to have a criminal conviction against him overturned does not present a reasonable probability that the jury would not have found appellant guilty had it known that Charles previously made this false statement. To grant appellant relief on this ground would further require a finding that trial counsel had some obligation to discover this evidence which has likewise not been shown.

In his third allegation of ineffectiveness, appellant argues that counsel was ineffective by failing to call potential witnesses to impeach Bruce Charles. In this regard, appellant complains that trial counsel should have called Calvin Jones and Robert Hamilton because they would have testified that Bruce Charles admitted to them that he fabricated his story about being hired by appellant to kill Newsome.

The record does not reflect that trial counsel had any way of knowing of Robert Hamilton as a potential witness. Counsel was made aware of Calvin Jones prior to trial. However, trial counsel testified at the motion hearing that he interviewed Jones and determined...