State v. Gardner
| Decision Date | 18 November 1997 |
| Docket Number | No. 69425,69425 |
| Citation | 955 S.W.2d 819 |
| Parties | STATE of Missouri, Respondent, v. Irvin GARDNER, Appellant. Irvin GARDNER, Movant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Gary E. Brotherton, Asst. Public Defender, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for Respondent.
Irvin Gardner (appellant) appeals from a sentence entered on a jury verdict finding him guilty of first degree robbery and armed criminal action. Appellant contends that the trial court erred in overruling: (1) his objection and letting State elicit Officer Arnett's opinion that appellant was the man in the surveillance video but then precluded appellant from rebutting that opinion; and (2) his motion to suppress his November 18 statement. Additionally, appellant contends that the motion court erred in overruling his Rule 29.15 Motion because a review of the record leaves the definite and firm impression that post-conviction counsel rendered ineffective assistance in that they failed to act as reasonably competent attorneys when they relied solely on the testimony of appellant to prove the claims that trial counsel was ineffective in failing to call certain witnesses. We affirm.
The record viewed in the light most favorable to the verdict reveals that about 8:20 p.m. on October 28, 1994, a man entered the Vickers Gas Station (station at 9601 Manchester Road in St. Louis County and pointed a knife towards the face of the cashier, Charles Meyers (Meyers), waiving it around Meyers' face and chest and demanding that Meyers open the cash register. Elizabeth McGregor was at the check-out counter attempting to pay for her gas when the man entered the station. Meyers opened the cash register, and the man grabbed money out of the register and left the store. After he left, Meyers locked the door and called the police. When the police arrived, Meyers gave them the station's surveillance videotape (videotape), which recorded the incident. Later that evening, Meyers viewed the videotape at the police station and told detectives he would be able to identify the man. Sergeant Paul Arnett (Arnett) was assigned to assist in the investigation of the incident and viewed the videotape, recognizing the man on the tape as appellant.
On November 18, 1994, appellant was interviewed at the Rock Hill Police Station. Arnett went through a waiver of rights form, informing appellant of his Miranda rights. Appellant indicated he understood those rights and would waive those rights and make a statement. Arnett then informed appellant of the charge of robbery first, and appellant indicated he had no idea of what Arnett was talking about and would not make any statement at that time. Arnett showed appellant the videotape and asked him to stand next to the monitor to compare appellant to the man on the videotape. Arnett told appellant that it was him on the tape "without a doubt." Appellant stated that the man on the videotape "must be his twin."
On January 26, 1995, Arnett and two other officers were outside the courtroom waiting to testify in another trial when appellant approached them and inquired as to what Arnett was doing. Arnett told appellant that they were there to testify on a case involving Charles Moring. Appellant stated, "he'll walk like I did," and told Arnett that he had an alibi that Arnett couldn't beat. Arnett replied he didn't care about appellant's false alibis because he had him on videotape. Appellant stated that "that might be me on the tape, but you guys put me on there." Arnett asked how that was possible, and appellant responded that "[you] cut the head off of a picture and had it imposed on the tape."
Appellant was charged by amended information with first degree robbery and armed criminal action as a class X offender, pursuant to Sections 558.016, 558.019 and 557.036.4 RSMo 1994.
The morning of trial, appellant requested an in-chambers conference regarding Arnett's identification of appellant on videotape, contending that allowing Arnett to testify that appellant is the man on videotape would be making a conclusion as to the ultimate question in the case and therefore, invade the province of the jury. He also requested to call rebuttal witnesses in the event such testimony was allowed. State contended that the identification would not be invading the province of the jury but would be Arnett's opinion and belief that appellant is the man on the tape. The court ruled that if sufficient foundation was laid for the testimony such as the length of time Arnett knew appellant and frequency of viewing appellant, he could give his opinion as to whether or not appellant is depicted on the tape if the testimony is couched in terms of an opinion. With regards to rebuttal witnesses, the court noted appellant had not endorsed anybody to testify in this regard and stated it would make a decision later on that morning.
At trial, state called McGregor, Meyers and Arnett to testify. McGregor testified as to the incident at station and stated, in pertinent part, that she was standing to the side of the man who had the knife, saw only his profile, could not identify him and was never asked to view a lineup. Meyers also testified as to the incident at station and the videotape stating, in pertinent part, that the man who robbed him at the register was no more than a couple of feet away and held his right arm up shading a part of his face, videotape in station recorded the incident, and the videotape accurately depicts the events that occurred that evening. Meyers also identified videotape, which was offered into evidence, as the tape that he put into and took out of station's machine that night and identified appellant as the man who threatened him with the knife and took the money out of the cash drawer. On cross-examination, Meyers stated that he was never shown a lineup or any photographs. Arnett testified as to his investigation and interview of appellant, stating that he viewed videotape the night of the robbery and could recognize the man on it. Appellant objected to Arnett's identification on the basis of lack of foundation, which was overruled. Arnett testified that in his opinion, appellant was the man on videotape, he had known him for approximately ten years, and pointed him out in the courtroom. Arnett also stated that on November 18, 1994, he interviewed appellant at the station, initially reading him his Miranda rights and going through a waiver of rights form with him, which appellant initialed and signed. The following testimony was elicited, in pertinent part:
Arnett: I advised him he was here for a charge of robbery first, and asked him if he wanted to tell me about it.
State: What did he say?
Arnett: He said that he had no idea of what I was talking about and wouldn't make a statement at that time.
* * *
State: How did he react when you showed him the videotape?
Arnett: He was real nervous. As soon as he came on the picture, he kept averting his eyes away from it and looking down at the ground.
State: After you viewed the videotape what did you do?
Arnett: I then stood him up to the monitor, compared him to the person on the tape. In my opinion it was, without a doubt, the suspect.
State: Did you take him back to your office then?
Arnett: Yes, I did.
State: Did he deny it was him on the tape?
Arnett: Yeah. I asked him if--- now what he had to say for himself.
State: What did he say?
Arnett: He said, "that wasn't me." I said, "how can you say that isn't you when you just seen yourself on tape committing the robbery?" He goes, "Well, that had to be my twin brother."
State: Did he tell you that he had a twin brother?
Arnett: At that time, yeah.
State: Did he have a twin brother?
Arnett: No, he has not.
* * *
Following the above testimony, Arnett stated that he questioned appellant regarding his whereabouts the night of the robbery, and appellant told him that he had been drinking with two individuals until about 6 p.m.; went to another individual's house until about 9:30 p.m.; and thereafter went to his girlfriend's house for the remainder of the night, calling in sick to work that night because he was too drunk. Appellant made no objections during the above testimony. Additionally, Arnett stated that he did not conduct a photo or live lineup with McGregor and Meyers because and testified as to the January 26, 1995 encounter at the courthouse with appellant where appellant said "that might be me on the tape, but you guys put me on there ... [you] cut the head off of a picture and had it imposed on the tape."
Then, state rested, and the trial court, in chambers, made a record, stating that the reason for Arnett's opinion testimony was "because the quality of the tape is very poor and in portions of the tape [appellant's] face was obscured--- at least partially obscured by an arm and that this officer--at least I was told this officer was going to testify he knew [appellant] for--I think he testified here this morning for approximately ten years." Also, the court ruled that appellant would not be able to call witnesses to give an opinion as to whether or not the man depicted in the videotape was appellant, stating "it's fundamentally unfair to the state to allow [appellant] to call these witnesses which he would like to portray as rebuttal witnesses when in fact, one, his intention to call these people and second, the ID of these people was not previously disclosed to the state." After the jury was recalled, appellant rested. Jury returned with a verdict of guilty of first degree robbery and armed criminal action. Subsequently, the trial court sentenced appellant as a prior and persistent offender to concurrent terms of twenty years...
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