State v. Kidd, No. WD 58712.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBreckenridge
Citation75 S.W.3d 804
Decision Date26 March 2002
Docket NumberNo. WD 58712.
PartiesSTATE of Missouri, Respondent, v. Ricky L. KIDD, Appellant.
75 S.W.3d 804
STATE of Missouri, Respondent,
v.
Ricky L. KIDD, Appellant.
No. WD 58712.
Missouri Court of Appeals, Western District.
March 26, 2002.
Motion for Rehearing and/or Transfer to Supreme Court Denied April 30, 2002.
Application for Transfer Denied June 25, 2002.

[75 S.W.3d 805]

Jennifer S. Walsh, Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Assistant Attorney General, Jefferson City, for respondent.

Before ULRICH, P.J., BRECKENRIDGE and ELLIS, JJ.

[75 S.W.3d 806]

BRECKENRIDGE, Judge.


Ricky Kidd appeals from the judgment of the circuit court denying his motion for post-conviction relief pursuant to Rule 29.15. A jury convicted Mr. Kidd of two counts of the class A felony of murder in the first degree, § 565.020.1, RSMo 2000,1 and two counts of armed criminal action, § 571.015. The court sentenced him as a prior offender to life imprisonment without eligibility for probation or parole for the two convictions for murder in the first degree and life imprisonment for the two armed criminal action convictions. After his convictions were affirmed on his direct appeal, Mr. Kidd filed a 29.15 motion for post-conviction relief based on ineffective assistance of appellate counsel, which was denied after an evidentiary hearing. On appeal, he claims that the motion court erred in denying his post-conviction motion because he was denied effective assistance of counsel when his appellate counsel failed to challenge the trial court's finding that he was a prior offender. Specifically, Mr. Kidd asserts that his appellate counsel was ineffective in not raising on appeal the issue that he was sentenced as a prior offender even though the information did not charge that he was a prior offender and he had no notice of the State's intention to prove prior offender status, in violation of his due process rights. While appellate counsel may have breached her duty by failing to raise on appeal the fact that Mr. Kidd was erroneously adjudicated a prior offender and was improperly sentenced by the trial court, Mr. Kidd failed to prove that he suffered prejudice because there was no discretion to be exercised in sentencing since the only sentence that could be imposed for non-capital first degree murder was life without parole. Therefore, the judgment of the motion court denying Mr. Kidd's request for postconviction relief is affirmed.

Factual and Procedural Background

Many of the facts relevant to the underlying crime are taken verbatim from the opinion of this court in Mr. Kidd's direct appeal, without utilizing quotation marks. See State v. Kidd, 990 S.W.2d 175 (Mo.App.1999). On February 6, 1996, four-year-old Kayla Bryant was at home with her father, George Bryant, and his friend, Oscar Junior Bridges. While Kayla sat in the living room eating and watching television, she noticed a white car pull up in front of the house. When Kayla looked out the window, she saw two men dressed in black getting out of the white car. Kayla described one as skinny and the other as fat. The "skinny one" had on a black leather jacket, a black hat, black pants, rings, two "circle" earrings, a bracelet, a "twist" necklace, and a watch. The "fat one" was bald and had on a black leather jacket, black pants, rings, one "circle" earring, a "twist" necklace, and a watch.

Kayla testified that she told her father someone was outside. He then looked out and opened the garage door. The two men and George Bryant went into the kitchen where Oscar Bridges was waiting. After a brief conversation, the two men pulled out guns. One man shot George Bryant, while the other chased and shot Oscar Bridges, who had fled to the basement. The two men then went through the house, as if they were looking for something. While the men were searching the house, Mr. Bryant was able to make his way outside and yell for help. Mr. Bryant's neighbor, Richard Harris, was walking by the house when he heard Mr. Bryant's calls. He watched while a man came out and dragged Mr. Bryant behind a car, and then another man came out and

75 S.W.3d 807

shot Mr. Bryant twice. The first man came after Mr. Harris, but Mr. Harris was able to run away.

Mr. Kidd and his co-defendant, Marcus Merrill, were indicted on two counts of first degree murder and two counts of armed criminal action. At trial, Kayla testified about the events of February 6, 1996, but she was not able to identify, in court, the two men who murdered her father. Mr. Harris also testified, identifying Mr. Kidd as the second man who came out and shot Mr. Bryant. Mr. Harris testified that he was "2001% sure" that Mr. Kidd was the man he saw outside the Bryant house shooting George Bryant.

The court also allowed detectives Jay Thompson, Robert Guffey, and Jay Pruetting to testify about the statements Kayla made to them regarding the events of February 6, 1996, and the identity of the perpetrators. Detective Thompson testified that he showed Kayla a video lineup that included Mr. Kidd. When Mr. Kidd appeared on the line up stage, Kayla told her mother that Mr. Kidd was "him." Detective Thomas further testified that, at the end of the video, all four persons in the lineup appeared on the screen and he pushed Kayla's chair closer to the television so she could point to the person she recognized. Kayla became nervous and clutched his arm when she pointed to Mr. Kidd as the person she recognized in the video.

Before submission of the case to the jury, the State offered into evidence certified copies of the information charging and judgment convicting Mr. Kidd of the crime of trafficking drugs in the second degree, as proof of Mr. Kidd's status as a prior offender. Mr. Kidd's trial counsel stated that she did not have any objection to the documents. Upon this evidence, the court found that Mr. Kidd was a prior offender under § 558.016. The court then apparently noticed that Mr. Kidd was not charged as a prior offender in the indictment and asked the State whether it had filed an amended information charging Mr. Kidd as a prior offender. The assistant prosecutor told the court that it was her belief it was not necessary to include an allegation of prior offender status in the indictment or information when the status is proven only to remove sentencing from the jury. Defense counsel did not object to this statement.

Based on its finding that Mr. Kidd was a prior offender, the trial court submitted to the jury only the issue of whether Mr. Kidd was guilty of the offenses charged. The jury convicted Mr. Kidd of both counts of first degree murder and the corresponding two counts of armed criminal action. After Mr. Kidd was found guilty by the jury, he was sentenced by the trial court to life in prison without eligibility for probation or parole on the two non-capital murder in the first degree charges, and life imprisonment on each of the two armed criminal action charges. The court ordered that the four sentences run consecutively.

Mr. Kidd appealed his convictions to this court, and this court affirmed the convictions in Kidd, 990 S.W.2d 175. In his direct appeal, Mr. Kidd's appellate counsel did not raise the issue that Mr. Kidd was erroneously adjudicated to be a prior offender and improperly sentenced by the trial court rather than the jury.

After his conviction was affirmed on his direct appeal, Mr. Kidd filed a 29.15 motion for post-conviction relief asserting, among other grounds, ineffective assistance of appellate counsel. The motion alleged that Mr. Kidd was denied effective assistance of counsel because his appellate counsel failed to challenge the trial court's finding that he was a prior offender. Specifically, Mr. Kidd alleged that his appellate

75 S.W.3d 808

counsel was ineffective in not raising on appeal that he was sentenced as a prior offender even though the information did not charge that he was a prior offender and he had no notice of the State's intention to prove prior offender status, in violation of his due process rights. Mr. Kidd contended that a reasonably competent appellate attorney would have recognized this issue and raised it on direct appeal and, if the issue had been raised, his conviction would have been reversed and he would have been granted a new trial.

At the evidentiary hearing, the State recognized the deficiency in failing to file an information in lieu of indictment charging Mr. Kidd as a prior offender. The motion court granted the State leave to file the amended information. The State then produced certified copies of documents showing that Mr. Kidd had pleaded guilty to trafficking in the second degree on March 13, 1996. The homicides at issue in this case occurred on February 6, 1996. Because Mr. Kidd's guilty plea was after the homicides, he was not a prior offender within the meaning of § 558.016. The motion court determined that the evidence was insufficient to prove that Mr. Kidd was a prior offender.

Mr. Kidd argued to the motion court that he was entitled to have his convictions reversed and be remanded for a new trial. The State, while conceding that there was an error in sentencing Mr. Kidd as a prior offender, argued that Mr. Kidd was not entitled to a new trial because he was not prejudiced. The State based this argument upon the lack of discretion in punishment in a non-capital first degree murder case, since the only sentence available to either the court or the jury was life without parole. Because there was a range of punishment available on the counts of armed criminal action and Mr. Kidd could demonstrate prejudice by being sentenced by the judge rather than the jury, the State suggested that it would dismiss the two counts of armed criminal action.

The motion court found that Mr. Kidd's appellate counsel erred, but that Mr. Kidd failed to establish prejudice because the only possible sentence was life without parole. The motion court further found that, because the State dismissed the...

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11 practice notes
  • Gant v. State, No. WD 65810.
    • United States
    • Court of Appeal of Missouri (US)
    • January 23, 2007
    ...trial was significantly called into question by the trial counsel's use of information that supported the State's case. State v. Kidd, 75 S.W.3d 804, 814 (Mo.App. W.D. 2002) (citing Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 Gant also argues his trial counsel wa......
  • State v. Cain, No. SD 29090.
    • United States
    • Court of Appeal of Missouri (US)
    • May 15, 2009
    ...go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his [or her] substantial rights. State v. Kidd, 75 S.W.3d 804, 811-12 (Mo.App.2002) (internal citations and quotations omitted). "Indeed, the Missouri Supreme Court has indicated that, to be afforded rel......
  • Kidd v. Norman, No. 10–1375.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 29, 2011
    ...failure to challenge Kidd's prior offender status, and affirmed the denial of his motion for post-conviction relief. State v. Kidd, 75 S.W.3d 804, 815 (Mo.Ct.App.2002). Notably, Kidd did not challenge the effectiveness of his trial counsel in his post-conviction action. Kidd filed a timely ......
  • State v. Martin, No. WD 61194.
    • United States
    • Court of Appeal of Missouri (US)
    • February 25, 2003
    ...sentencing him for a class D felony. His contention is, therefore, subject only to plain error review under Rule 30.20. State v. Kidd, 75 S.W.3d 804, 811 (Mo.App. W.D. 2002). Rule 30.20 provides in pertinent part, "Whether briefed or not, plain errors affecting substantial rights may be con......
  • Request a trial to view additional results
11 cases
  • Gant v. State, No. WD 65810.
    • United States
    • Court of Appeal of Missouri (US)
    • January 23, 2007
    ...trial was significantly called into question by the trial counsel's use of information that supported the State's case. State v. Kidd, 75 S.W.3d 804, 814 (Mo.App. W.D. 2002) (citing Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 Gant also argues his trial counsel wa......
  • State v. Cain, No. SD 29090.
    • United States
    • Court of Appeal of Missouri (US)
    • May 15, 2009
    ...go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his [or her] substantial rights. State v. Kidd, 75 S.W.3d 804, 811-12 (Mo.App.2002) (internal citations and quotations omitted). "Indeed, the Missouri Supreme Court has indicated that, to be afforded rel......
  • Kidd v. Norman, No. 10–1375.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 29, 2011
    ...failure to challenge Kidd's prior offender status, and affirmed the denial of his motion for post-conviction relief. State v. Kidd, 75 S.W.3d 804, 815 (Mo.Ct.App.2002). Notably, Kidd did not challenge the effectiveness of his trial counsel in his post-conviction action. Kidd filed a timely ......
  • State v. Martin, No. WD 61194.
    • United States
    • Court of Appeal of Missouri (US)
    • February 25, 2003
    ...sentencing him for a class D felony. His contention is, therefore, subject only to plain error review under Rule 30.20. State v. Kidd, 75 S.W.3d 804, 811 (Mo.App. W.D. 2002). Rule 30.20 provides in pertinent part, "Whether briefed or not, plain errors affecting substantial rights may be con......
  • Request a trial to view additional results

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