State v. Jackson

• Decision Date: 28 May 1996
• Docket Number: Nos. WD,s. WD
• Parties: STATE of Missouri, Respondent, v. Amron W. JACKSON, Appellant. Amron W. JACKSON, Appellant, v. STATE of Missouri, Respondent. 49244, WD 51006.
• Court: Missouri Court of Appeals

Page 856

925 S.W.2d 856

STATE of Missouri, Respondent, v. Amron W. JACKSON, Appellant.

Amron W. JACKSON, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 49244, WD 51006.

Missouri Court of Appeals,

Western District.

May 28, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 2, 1996.

Application to Transfer Denied

Aug. 20, 1996.

Robert G. Duncan, Kansas City, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before FENNER, C.J., P.J., and SPINDEN and ELLIS, JJ.

FENNER, Chief Judge.

Appellant, Amron W. Jackson, appeals his conviction and sentence of murder in the second degree as well as the denial, after evidentiary hearing, of his Rule 29.15 motion for post-conviction relief.

Considered in the light most favorable to the judgment herein, the record reflects that on February 9, 1993, Ronzell Johnson, Mike Sanders and Carlas Mosby were riding in Sanders' automobile. As they drove by, this group saw appellant in front of a house at 5110 Wabash, Kansas City, Missouri. Sanders was driving and he knew there were hard feelings between appellant and Mosby.

As Sanders drove by, appellant stepped into the street. Sanders stopped and backed up toward appellant. Ronzell Johnson saw appellant pull a gun from his pocket. Sanders got out of the car and approached appellant. Sanders opened his shirt and turned around to exhibit that he was not armed. Sanders began to talk to appellant about the feud between appellant and Mosby. Johnson got out of the car and stood by the rear on the passenger side. Finally, Mosby got out of the car and spoke to appellant. Appellant "flinched" his gun and Sanders stepped in between them. Mosby, who was unarmed, began walking back to Sanders' car and appellant began shooting at Mosby's back.

Johnson heard appellant say, "I got you, I got your bitch ass." Johnson took off running and saw appellant reloading his gun. Johnson returned to the scene several minutes later and observed Mosby's body lying up against the car. Appellant argued at trial that he shot Mosby in self-defense.

MOTION TO REMAND--NEW EVIDENCE

Appellant argues first that he is entitled to have his case remanded to the trial court in order to present evidence on the question of whether the State failed to disclose a promise of leniency to Ronzell Johnson in exchange for his testimony against appellant. Appellant argues that he discovered new evidence which establishes that Johnson was lying when he testified at trial that he had not been offered a "deal" by the State in exchange for his testimony. Appellant argues that the State's failure to disclose its "deal" with Johnson together with the State knowingly using Johnson's false testimony that there was no "deal" or failing to correct Johnson's testimony in this regard, which was known to be false, violated appellant's right to due process.

Rule 29.11(b), V.A.M.R., requires that a motion for a new trial shall be filed within 15 days after the return of the verdict, and allows the court to extend the time period to a maximum of 25 days. State v. Davis, 698 S.W.2d 600, 602 (Mo.App.1985). The time limitations apply equally to all grounds for a motion for new trial, including newly discovered evidence. State v. Turnbough, 604 S.W.2d 742, 745 (Mo.App.1980). Even as an amendment, a request for a new trial based upon newly discovered evidence must comply with the time requirements of Rule 29.11(b) and, if untimely, is a nullity and presents nothing for review. State v. Hamilton, 732 S.W.2d 553, 555 (Mo.App.1987).

An exception to the time limitations of Rule 29.11(b) is recognized where an appellate court, in its discretion, determines that its inherent power must be exercised to remand a case for the trial court to consider whether a new trial should be granted on the basis of newly discovered evidence in order to prevent a miscarriage of justice. State v. Davis, 698 S.W.2d at 603. The case at bar does not present such a circumstance.

In the case at bar, appellant raised the same issue in regard to leniency being offered to Johnson in his amended Rule 29.15 motion. At the Rule 29.15 hearing, appellant's attorney explained that she had spoken with the assistant prosecutor who allegedly made the deal with Johnson and she was told that Johnson had not been given any inducements for his testimony. Furthermore, neither Johnson nor his attorney were called as witnesses to offer evidence of the alleged deal. Appellant argues that Johnson was not willing to testify about the inducements that he was given until after his probation had expired which came after the 29.15 hearing. This does not constitute new evidence.

By appellant's allegation in his 29.15 motion, he exhibits that he was aware that Johnson had purportedly been offered inducements. Being aware of the purported newly discovered evidence at the time of his 29.15 hearing, appellant had full opportunity to present this issue at that time. Justice does not require remand to the trial court for consideration of this issue once again.

RULE 29.15 MOTION

Appellant argues next that the judgment of the court in his 29.15 motion should be reversed and remanded because the motion court failed to enter adequate and specific findings of fact and conclusions of law in regard to his claims that his attorney (1) failed to investigate the evidence in Sanders' car; (2) failed to secure the testimony of Gus Johnican; (3) failed to object to the testimony of Dr. Matruka as being hearsay, which testimony denied him his right to confrontation; (4) failed to object to a video statement of Johnson being received in evidence as improperly bolstering his testimony; and (5) that the State failed to disclose inducements to Ronzell Johnson for his testimony and failed to correct the false testimony of Johnson that there were no inducements. Appellant argues further that the judgment of the motion court should be reversed for failing to find ineffective assistance of trial counsel for counsel failing to investigate evidence of weapon damage to Sanders' car and in failing to object to the testimony of Dr. Matruka.

Specific findings are generally contemplated and required by Rule 29.15. State v. Gabbard, 913 S.W.2d 362, 364-65 (Mo.App.1996). However, generalized findings and conclusions will be deemed adequate if they are sufficient to provide meaningful review on appeal. Darris v. State, 897 S.W.2d 48, 51 (Mo.App.1995). Furthermore, findings of fact are not required regarding issues that present only matters of law. Barry v. State, 850 S.W.2d 348, 350 (Mo. banc 1993). Nor are findings of fact or conclusions of law required on issues upon which no evidence was adduced at the post-conviction hearing, State v. Dunn, 889 S.W.2d 65, 76 (Mo.App.1994), or upon issues which were not "properly raised" or are not cognizable in a post-conviction motion. State v. Viviano, 882 S.W.2d 748, 754 (Mo.App.1994).

Substantive appellate review of the denial of a post-conviction motion is limited to a determination of whether the findings of fact and conclusions of law issued by the hearing court are "clearly erroneous." State v. Johnson, 901 S.W.2d 60, 62 (Mo. banc 1995); Rule 29.15(j), V.A.M.R. Findings and conclusions are "clearly erroneous" only if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made. Johnson, id.

In order to prevail on a claim of ineffective assistance of counsel, a movant must establish, by a preponderance of the evidence, (1) that his or her attorney's performance was deficient, i.e., that he or she failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Prejudice exists only where trial counsel's acts or omissions are outcome-determinative. State v. Harris, 870 S.W.2d 798, 814 (Mo. banc), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994). The movant must show "a reasonable probability" that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.

The motion court herein entered its amended findings of fact and conclusions of law on May 16, 1995. Each of appellant's claims are addressed as follows:

(1) Failure to Investigate Sanders' Car

Appellant argues that the findings of the motion court were inadequate in regard to his claim of ineffective assistance of counsel for counsel's failure to obtain and use photographs showing that Mike Sanders' car had bullet holes as well as damage from a shotgun. In a separate point, appellant argues that the motion court erred in failing to grant post-conviction relief because of this alleged ineffective assistance of counsel.

Appellant argues that the evidence of damage to Sanders' car from bullets and shotgun In this regard, the motion court specifically found that if the evidence in regard to Sanders' car was in fact relevant, appellant could have requested that the car be reprocessed before trial. By its findings, the motion court did not believe that appellant had requested that the car be reprocessed. Nonetheless, the evidence at trial was that the bullets used by appellant were of a type that leave a shotgun pellet pattern when they strike a solid object. The motion court further found that appellant failed to establish how counsel's conduct did not conform to the care and skill of a reasonably competent attorney.

pellets would have shown that he was not the only person with a gun when Mosby was shot. The detective in charge of the photographs in question testified that they were either lost or destroyed and that no further processing was done on the car to determine the caliber of the bullets that caused the damage to Sanders' car.

Even if appellant could have established that...