State v. Johnson, s. WD
| Decision Date | 07 April 1992 |
| Docket Number | Nos. WD,s. WD |
| Citation | 829 S.W.2d 630 |
| Parties | STATE of Missouri, Respondent, v. Val E. JOHNSON, Appellant. Val E. JOHNSON, Appellant, v. STATE of Missouri, Respondent. 43549, WD 44693. |
| Court | Missouri Court of Appeals |
David S. Durbin, Appellate Defender, Anthony C. Cardarella, Asst. Appellate Defender, Kansas City, for appellant.
William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before FENNER, P.J., and ULRICH and SPINDEN, JJ.
In this consolidated appeal, Val E. Johnson appeals his convictions of first degree robbery and armed criminal action and the denial of his motion for post-conviction relief.
The evidence adduced at trial, viewed in the light most favorable to the verdict, revealed that at approximately 5:30 p.m., on April 13, 1989, the victim, Ms. Dorothy Hosier, drove into the parking lot of a grocery store located in Raytown, Missouri. Ms. Hosier had stepped out and was standing beside her car when she was approached by a man who ordered her to give him her purse.
When Ms. Hosier attempted to talk the assailant out of his demand by informing him she only had a little money, a struggle ensued, and the assailant struck Ms. Hosier on the head with a chrome-colored handgun, knocking her to the ground. The assailant fled, leaving Ms. Hosier with a head laceration, bleeding and a slight concussion.
Officer Paul White of the Raytown Police Department responded to the crime scene and recorded the statements of Ms. Hosier and two eyewitnesses, Mr. William O'Leary and Ms. Kimberly Brown. Ms. Hosier described the assailant as a black male, with bushy hair, approximately 5'7"' to 5'10"' tall, weighing between 165 to 170 pounds, medium complexion and pronounced cheeks and nose. Mr. O'Leary had just driven in the parking lot when he heard a woman screaming for help. He then saw a man, carrying a purse run in front of him who jumped into the passenger side of a car and "took off." Mr. O'Leary described the assailant as a black male, with an "afro" and a "chubby" or "stocky" build. Ms. Brown had copied the license plate number of the car that the assailant used to flee from the scene, which she provided to Officer White. She described the assailant as a black male, 6'3"', 175 pounds with a skinny build.
A trace of the license number indicated that the registered owner was a Ms. Varnice Johnson, who was then contacted by Detective Stan Pearson of the Raytown Police Department. Ms. Johnson informed Detective Pearson that she had loaned her car to her boyfriend, Tony Dewbarry who had, in turn, loaned the car to appellant, Johnson. Johnson was then located and arrested.
Detective Steve Santoli of the Raytown Police Department compiled a six man array of photographs. Ms. Hosier positively identified Johnson from the photographs as the man who had taken her purse. Ms. Brown was not able to make an identification of the assailant after viewing the photographs.
Ms. Brown failed to respond to a subpoena and was not present on the second day of trial as the State was ready to close its case. The parties entered into a stipulation whereby Ms. Brown's statement to Officer White could be received as evidence in lieu of her testimony. Ms. Brown's statement was then read into evidence and received as an exhibit.
Following trial, Johnson was found guilty by the jury and sentenced as a prior and persistent offender. Johnson filed a pro se motion for post-conviction relief pursuant to Rule 29.15, which was overruled following an evidentiary hearing.
Johnson presents three points on appeal, the first of which alleges that the motion court clearly erred by denying his request for post-conviction relief which alleged that trial counsel was ineffective for failing to secure the attendance of Ms. Kimberly Brown at trial. He argues that the action of trial counsel of entering into a stipulation with the State as to the testimony of Ms. Brown denied him his right to due process, to confrontation of witnesses, to compulsory process of witnesses and to effective assistance of counsel.
At the post-conviction hearing, the appellant's former trial counsel testified that both the defense and the prosecution had attempted to subpoena Ms. Brown prior to trial. Trial counsel explained that Ms. Brown "had been unavailable to the defense as well as the State throughout the course of the investigation." She said their process server "had looked for Ms. Brown for some time" before the subpoena was finally served on her. Even after she had been subpoenaed, Ms. Brown apparently "had indicated to the State that she would not appear."
When Ms. Brown failed to honor the subpoena on the second day of trial, trial counsel discussed with Johnson the possibility of stipulating to her testimony. Trial counsel explained that she elected to enter into a stipulation with the prosecution as to what Ms. Brown's testimony would have been had she been present because the stipulation was "favorable to the defense," since the description of the robbery contained in Ms. Brown's stipulated statement did not match the victim's description of the assailant. The sole theory of defense was "misidentification," which she had fully discussed with Johnson. Although trial counsel generally agreed that there usually is "an advantage to a live witness," she believed that Ms. Brown's testimony "would have been the same" as the stipulation. Trial counsel also noted that if the State had not decided to offer Ms. Brown's testimony into evidence, she would have presented it on behalf of the defense.
Following the hearing, the motion court entered its order overruling Johnson's post-conviction motion. In the findings of fact and conclusions of law the motion court found that the stipulated testimony aided Johnson's theory of defense and that the decision by trial counsel to stipulate was a matter of trial strategy which had been fully discussed with Johnson. The motion court also noted that Johnson had failed to produce Ms. Brown as a witness at the evidentiary hearing, and therefore it would be sheer speculation to assert that if she had been called as a witness her trial testimony would have been more beneficial to his defense than what had been presented to the jury through the stipulation.
On appeal, 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. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991). Deference will be given to the motion court's superior opportunity to judge the credibility of the...
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