State v. George

• Decision Date: 30 April 1996
• Docket Number: Nos. 19125,20066,s. 19125
• Citation: 921 S.W.2d 638
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John E. GEORGE, Defendant-Appellant, consolidated with John GEORGE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 638

921 S.W.2d 638

STATE of Missouri, Plaintiff-Respondent, v. John E. GEORGE, Defendant-Appellant, consolidated with

John GEORGE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 19125, 20066.

Missouri Court of Appeals,

Southern District,

Division One.

April 30, 1996.

M. Elise Branyan, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Joanne E. Joiner, Assistant Attorney General, Jefferson City, for respondent.

BARNEY, Judge.

In Case No. 19125 a Phelps County jury convicted John George (Appellant) on one count of rape pursuant to § 566.030 ¹ and five counts of sodomy pursuant to § 566.060. He was sentenced as a prior offender, a persistent offender, a sex offender and a Class X offender, to 40 years on each of the six counts to be served consecutively. He appeals the judgment and sentence of the trial court.

In Case No. 20066 Appellant appeals the denial of his Rule 29.15 ² motion for post-conviction relief claiming ineffective assistance of counsel. The hearing court denied the motion without an evidentiary hearing. Appellant's direct appeal and his appeal from the denial of his 29.15 motion are consolidated herein.

Appellant presents eight points on appeal, to-wit: the trial court erred: 1) in denying his pre-trial request for different counsel because of an alleged conflict of interest; 2) in denying a request for a mistrial when the State made references to the Appellant's failure to testify; 3) in failing to sustain Appellant's motion for acquittal; 4) plainly when it failed to declare a mistrial, sua sponte, after the State referred to Appellant as a "monster" in opening argument; 5) in permitting the testimony of a witness in that it constituted hearsay and impermissible bolstering; 6) in failing to retain a particular juror; 7) plainly when it failed to recuse itself, sua sponte, after contact with a witness during a recess; and 8) in denying Appellant an evidentiary hearing in his post-conviction relief action.

No. 19125--Direct Appeal

Appellant was the live-in boyfriend of Joyce Turner. Ms. Turner had four children, C.T., T.T., A.T., and B.T., all of whom lived in the household with Appellant and Ms. Turner. B.T. is the only boy. B.T. left in November, 1991 to go live with his grandmother. The girls' ages in the fall of 1991 were 12, 11, and 8, respectively. After B.T. left the house, there were several incidents of sexual abuse between Appellant and each of the three girls. These incidents were the basis for the charges on which Appellant was convicted.

In his first point, Appellant claims that the trial court erred when it denied his request for different counsel prior to trial. As grounds, Appellant asserts that he and counsel had a conflict of interest due to a lawsuit filed by Appellant against counsel in Federal court. Additionally, Appellant asserts that counsel failed to interview and call witnesses on his behalf.

Appellant made his request for new counsel at a pre-trial conference two weeks before trial. A hearing was held and the trial court denied the motion, noting in the docket:

[T]here are no legal grounds for the removal of the attorney; that the trial date is less than two weeks away; and that counsel has announced that he is ready to proceed, has the ability to proceed in the best interest of his client.

Both the conflict of interest claim resulting in ineffective assistance of counsel ³ and the failure to call witnesses claim were raised in Appellant's Rule 29.15 motion. They are now being asserted on direct appeal as a separate point of trial court error. "Claims of ineffective assistance of counsel at trial cannot be raised on direct appeal. Rather, they must be raised by way of a post-conviction motion under Rule 29.15." State v. Kretzer, 898 S.W.2d 639, 643 (Mo.App.1995). Failure to call witnesses and conflict of interest claims resulting in ineffective assistance of counsel, are matters properly within the scope of a Rule 29.15 motion.

Appellant has failed to provide any record containing evidence that a lawsuit was filed in Federal court. Additionally, we do not have access to a transcript of the pre-trial hearing that was held on the matter. The only references to the other lawsuit are contained in the briefs of the parties and the docket entries made by the trial judge. "The existence of a conflict of interest must be shown by evidence and the burden of proof is on the movant to produce such evidence." Maddox v. State, 715 S.W.2d 10, 11 (Mo.App.1986) (citation omitted). See also State v. Parker, 886 S.W.2d 908, 929 (Mo. banc 1994), cert. denied, --- U.S. ----, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995). It is the Appellant's burden to produce a record on appeal sufficient to determine the claim. State v. Foster, 854 S.W.2d 1, 6 (Mo.App.1993).

Furthermore, the fact that Appellant had filed a lawsuit against his attorney is not sufficient to warrant relief absent some showing that the representation was adversely affected by the alleged conflict or that the alleged conflict precluded effective representation. "[A] pending lawsuit between Appellant and his attorney may give rise to a conflict of interest requiring appointment of new counsel. However, a defendant who files a lawsuit against his attorney does not necessarily create such a conflict." State v. Boyd, 913 S.W.2d 838, 844 (Mo.App.1995) (citation omitted). Point one is denied.

In his second point, Appellant claims the trial court erred when it overruled his motion for a mistrial. The motion was made in response to comments by the State which Appellant claims emphasized, in violation of § 546.270, that he would not testify on his own behalf. The specific comment was as follows:

The evidence is going to show that these girls were left without any support whatsoever. They had a monster living in the house, and the only person who could protect them was their mother; and she refused to do that. There will be--The evidence from the girls will be unrefuted. (Emphasis added.)

It had been announced, in chambers, prior to the beginning of trial that Appellant would not testify. Additionally, there were no witnesses disclosed by Appellant during discovery. Appellant asserts that the above emphasized quote was therefore a comment on the only witness that trial counsel could call, the Appellant.

A trial court has wide discretion in controlling the scope of closing arguments as the trial judge is in the best position to determine their prejudicial effect. State v. Lee, 841 S.W.2d 648, 653 (Mo. banc 1992). Where the defendant complains that the prosecutor made references to his failure to testify, we will disturb the trial court's decision only where the references are direct and certain. Id. " 'Merely stating that the evidence is 'uncontradicted' or that a defendant has failed to offer evidence is not a direct and certain reference.' " Id. "A direct reference to an accused's failure to testify is made when the prosecutor uses words such as 'defendant,' 'accused' and 'testify' or the equivalent. An indirect reference is one reasonably apt to direct the jury's attention to defendant's failure to testify." State v. Lawhorn, 762 S.W.2d 820, 826 (Mo. banc 1988). There must be a calculated attempt by the prosecutor to emphasize the defendant's failure to testify so as to call it to the attention of the jury. Id.

The reference made by the State in this case was certainly not a direct comment. It was also not indirect in that it did not point out to the jury that Appellant would not be testifying. The jury had no knowledge of the fact that defense counsel disclosed no witnesses during discovery and therefore, it is too remote to assume that they would infer from the State's comment that Appellant was not going to testify. Point two is denied.

In his third point, Appellant claims the trial court erred in failing to sustain Appellant's Motion for Judgment of Acquittal. He claims there was insufficient evidence to submit the charges of rape and sodomy to the jury because the testimony of the victim lacked corroboration. As a general rule, "[t]he uncorroborated testimony of the victim in a case of sexual assault is sufficient to sustain a conviction." State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992). Corroboration is only required when the victim's testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is rendered doubtful. State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995); Sladek, 835 S.W.2d at 310; State v. Creason, 847 S.W.2d 482, 485 (Mo.App.1993). This corroboration requirement is triggered only when there are inconsistencies that arise within the victim's trial testimony. "Conflict between the testimony of the victim and other witnesses does not require application of the corroboration rule." Sladek, 835 S.W.2d at 310; State v. Gardner, 849 S.W.2d 602, 604 (Mo.App.1993). Likewise, conflict between the victim's testimony and out of court statements does not trigger the corroboration rule. Creason, 847 S.W.2d at 485. In order for the corroboration exception to apply, the discrepancies must amount to " 'gross inconsistencies and contradictions.' " State v. Marlow, 888 S.W.2d 417, 422 (Mo.App.1994).

Appellant alleges that the girls told conflicting stories regarding the location, date, time of day and frequency of the abuse. However, as stated above, the rule is not that a victim's testimony be consistent with other witnesses. Instead, a victim's testimony must be consistent within itself.

A review of the record establishes that each girl's testimony was consistent within itself. Counts I, III and IV all involved acts against C.T. To find the defendant guilty of rape on Count I, the jury was required to find that on or about February 2, 1992 Appellant had sexual intercourse with C.T. She testified that Appellant told her "to get up and bend over the couch; and then he put his penis in...