State v. Franklin

• Decision Date: 09 March 1993
• Docket Number: Nos. WD,s. WD
• Citation: 854 S.W.2d 438
• Parties: STATE of Missouri, Respondent, v. Brian Keith FRANKLIN, Appellant. 43533, WD 45588.
• Court: Missouri Court of Appeals

Page 438

854 S.W.2d 438

STATE of Missouri, Respondent, v. Brian Keith FRANKLIN, Appellant.

Nos. WD 43533, WD 45588.

Missouri Court of Appeals,

Western District.

March 9, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 27, 1993.

Application to Transfer Denied June 29, 1993.

Anthony C. Cardarella, Asst. Appellate Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Robert Alan Kelly, Asst. Atty. Gen., Jefferson City, for respondent.

Before BERREY, P.J., and ULRICH and SMART, JJ.

SMART, Judge.

Brian Keith Franklin appeals from a conviction of two counts of robbery in violation of § 569.020, RSMo 1986, two counts of armed criminal action in violation of § 571.015, RSMo 1986 and denial of his 29.15 motion. Franklin was sentenced as a prior, persistent and class X offender to a term of life imprisonment on the robbery convictions and a term of thirty years on each of the armed criminal action convictions. Franklin's sentences were ordered to run consecutively.

The evidence adduced at trial revealed that on Sunday, September 6, 1987, at approximately 9:00 a.m., defendant and two other males entered a Western Auto store located in Clay County, shortly after it had opened that morning. The men entered the store through open garage doors behind the store. The men displayed handguns and ordered all persons in the store onto the floor. Defendant ordered Tony Curtis, assistant manager of the store, to take defendant to the store's safe and to unlock the safe. After taking the money in the safe, and robbing one of the customers at gunpoint, the men ran out of the store.

Three of the employees had the opportunity to observe defendant and later identified him as one of the participants in the robbery. During the entire incident, Tony Curtis was at defendant's side and observed him closely. He reported to police that defendant wore a blue shower cap. Mr. Curtis identified defendant as the robber who ordered him to open the safe. Ken Shockley, a mechanic employed at the Western Auto store, had only a glimpse of defendant while inside the store, but had seen him clearly when he pulled up to the store that morning as the three robbers stood outside the back of the store waiting for it to open. At trial, Mr. Shockley identified defendant as one of the robbers. Dallas Engel, a parts salesman, also observed defendant during the incident and identified defendant during trial.

In an attempt to identify the robbers during the initial investigation, police showed the witnesses photographs two weeks after the robbery. At that time, none of the witnesses identified defendant as being a participant in the robbery. About a month later, police showed the witnesses an audio-video lineup. From viewing the men in the lineup and hearing each one of them speak, Curtis, Shockley and Engel all identified defendant as the robber who had worn the blue shower cap and had ordered the opening of the safe. Defendant was convicted of all charges. Defendant appeals from these convictions, along with the denial of his 29.15 motion.

Ineffective Assistance of Counsel

In his first three points on appeal, Franklin argues that the motion court clearly erred in denying his motion for post-conviction relief because he was denied his right to effective assistance of counsel as guaranteed by the sixth and fourteenth amendments to the United States Constitution and Article I, § 18(a) of the Missouri Constitution. Franklin claims he was denied effective assistance of counsel based on the following grounds: (1) defendant's attorney failed to adequately impeach the identification testimony of state eyewitnesses; (2) defendant's attorney failed to fully contact and interview the defense alibi witnesses; and (3) the trial court allowed defendant to proceed pro se while refusing his request for a six week continuance.

Appellate review of the denial of a Rule 29.15 motion is confined to the issue of whether the findings of fact and conclusions of law of the motion court are clearly erroneous. State v. Anderson, 785 S.W.2d 596, 600 (Mo.App.1990). The motion court's determination is clearly erroneous only if after reviewing the entire record, the appellate court has a definite and firm impression that a mistake has been made. Id.

To establish ineffective assistance of counsel, defendant must satisfy the Strickland two-prong test, showing (1) counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances, and (2) that defendant was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Review begins with the presumption that counsel is competent and movant has the "heavy burden" of proving counsel's ineffectiveness by a preponderance of the evidence. Amrine v. State, 785 S.W.2d 531, 534 (Mo. banc 1990), cert. denied, 498 U.S. 881, 111 S.Ct. 227, 112 L.Ed.2d 181 (1990). Finally, appellant must show that a different outcome would have resulted but for counsel's errors in order to show that he was prejudiced by such errors. Sanders v. State, 738 S.W.2d 856, 860-61 (Mo. banc 1987).

It is also important to note that ineffective assistance of counsel claims relating to "trial strategy" do not provide a basis for post-conviction relief. Rainwater v. State, 770 S.W.2d 368, 370 (Mo.App.1989). Counsel is vested with wide latitude in defending his client and should use his best judgment in matters regarding trial strategy. Stuckey v. State, 756 S.W.2d 587, 593 (Mo.App.1988). Additionally, courts reviewing such claims should refrain from employing hindsight when reviewing counsel's conduct at trial. State v. Lewis, 785 S.W.2d 656, 660 (Mo.App.1990). Each of defendant's ineffective assistance of counsel claims will be addressed individually.

Identification of Eyewitnesses

Franklin's first point on appeal is that the motion court erred by denying him relief on his ineffective assistance of counsel claim alleging that trial counsel failed to professionally and adequately impeach the identification testimony of State eyewitnesses. Defendant argues that his appointed counsel was in possession of police investigative reports containing relevant impeachment information and that she failed to inform the jury of the impeachment information which could have helped defendant's defense. Defendant claims that his counsel's performance denied him his right to effective assistance of counsel.

Essentially, defendant contends that the jury was never informed that the eyewitnesses had initially chosen photographs of Kim Milligan and/or Edward Robinson as depicting possible participants in the robbery and that these two men were in custody on the date of the robbery. The same eyewitnesses later positively identified defendant in an audio-video taped lineup and in court during the trial as one of the participants in the robbery. Accordingly, defendant argues that his counsel was under a constitutional duty to impeach the testimony of Curtis, Shockley and Engel by putting forth evidence of the incarceration of Milligan and Robinson.

Generally, the presentation of witnesses by an attorney on behalf of his client and the introduction of cumulative evidence are considered matters of trial strategy, which is not a proper basis for an ineffective assistance of counsel claim. Johnson v. State, 776 S.W.2d 456, 458 (Mo.App.1989). To prevail on his claim, defendant is required first to show that counsel's failure to present the impeachment evidence was outside the realm of trial strategy. Terry v. State, 770 S.W.2d 723, 724 (Mo.App.1989). Next, defendant must establish that the evidence would have provided a viable defense. State v. Vinson, 800 S.W.2d 444, 448-49 (Mo. banc 1990).

We do not believe that counsel's actions in this case fall outside of the realm of trial strategy. Nor do we believe the introduction of such evidence would have helped defendant's defense. Defendant was identified by the eyewitnesses at a different time from the identification of Milligan and Robinson. At the time of the witnesses' identification of defendant, the witnesses viewed an audio-video taped lineup, which differs markedly from viewing mug shots, as was done at the time of the identification of Milligan and Robinson. Furthermore, counsel did cross-examine each witness on the identification of Milligan and Robinson. At least one of the witnesses, Mr. Engel, identified both Milligan and Robinson as participants in the crime. This was elicited during cross-examination. Counsel also clearly pointed out that defendant's photo was among the photos shown to the eyewitnesses at the same time Milligan and Robinson were identified, and that defendant was not identified by any of the eyewitnesses at that time. There was no contention by the State that Milligan and Robinson were the accomplices of defendant, ¹ and it was evident from the testimony that the witnesses had misidentified Milligan and Robinson. Thus, we see no manner in which defendant's defense would have been enhanced by such evidence. Therefore, the motion court's ruling on this point was not clearly erroneous. Point I is denied.

Interview of Alibi Witnesses

Franklin's second point on appeal is that the motion court erred in denying relief on his ineffective assistance of counsel claim alleging that his counsel failed to fully, properly and professionally contact and interview the defense alibi witnesses prior to trial. Specifically, defendant claims that one of his alibi witnesses, Tony Handson, was never contacted by defense counsel or her office before he testified at defendant's trial. Defendant claims that trial counsel's failure in this regard denied him his right to effective assistance of counsel.

During the course of defendant's trial, defense counsel called numerous alibi witnesses on behalf of defendant, all of whom were defendant's friends and family....