State v. Morris, 37710
Decision Date | 13 November 1979 |
Docket Number | No. 37710,37710 |
Citation | 591 S.W.2d 165 |
Parties | STATE of Missouri, Plaintiff-Respondent, v. Marvin MORRIS, Defendant-Appellant. |
Court | Missouri Court of Appeals |
Robert C. Babione, Public Defender, Sara T. Harmon, Asst. Public Defender, St. Louis, for defendant-appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles Sindel, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Marvin Morris, appellant, was found guilty by a jury in the Circuit Court of the City of St. Louis of Tampering With a Motor Vehicle in violation of § 560.175 RSMo 1969. The trial court also found that he had been previously convicted of a felony, Operating a Motor Vehicle Without the Owner's Consent, and pursuant to the provisions of § 556.280 RSMo 1969 sentenced him to a term of five (5) years in the custody of the Missouri Department of Corrections. He appealed. We affirm.
Appellant does not question the sufficiency of the evidence to sustain the conviction; therefore, a brief statement of the facts supporting the jury verdict will suffice.
On July 7, 1975, a member of the Metropolitan St. Louis Police Department, Garland Burson, observed three men removing tires from a 1971 Oldsmobile in O'Fallon Park in the City of St. Louis. The owner of this car was Helen Louis. As Officer Burson approached, the three men began to walk away quickly but halted when he ordered them to do so. He inquired if they owned the car and one of the three replied that they did not know who the car belonged to, that they were just taking the tires off the car. He placed all three of the men under arrest and, at trial, identified appellant as one of the men he arrested at the scene.
On appeal, four Points Relied On are presented as grounds for reversing the judgment of the trial court and remanding the case for a new trial.
Appellant initially contends that the trial court erred in refusing to grant leave to an Assistant Public Defender to withdraw from representing him because the appellant was not indigent. The Public Defender had been appointed to represent the appellant on September 9, 1975. On November 3, 1975, the Public Defender filed a memorandum requesting leave of court to withdraw as counsel for the appellant on the grounds appellant was not indigent and had retained private counsel. On the same day retained counsel filed a memorandum entering his appearance on behalf of appellant and simultaneously requested a continuance of the trial of the cause in order to prepare for trial. The trial court denied retained counsel's request for a continuance. 1
The cause was assigned to a trial division for trial and there retained counsel again presented his motion for continuance. Once again his motion was denied, this time on the grounds that the Assistant Public Defender was ready for trial and said Assistant Public Defender was ordered to remain in the case to assist the retained counsel in the trial of the case. The trial was commenced on November 4, 1975.
Under this Point, appellant's attack is threefold: the trial court erred in that: 1) it violated the Public Defender Statute, § 600.045 RSMo 1969, in refusing to permit the Assistant Public Defender to withdraw from the case because the appellant was not indigent: 2) in denying his retained counsel's motion for continuance, thereby denying him of his constitutional rights to effective assistance of counsel; and 3) it based its denial of said motion solely on the finding that the Assistant Public Defender had announced ready for trial.
We read the Statute in a different light than does the appellant. When the cause came on for trial the Statute authorized the trial court to relieve the Public Defender from a previously made appointment when one of two conditions was found to exist. The trial court is authorized by the Statute to relieve the Public Defender "upon a showing of good and sufficient reason therefor" or "if the defendant is found not to be indigent." Under neither of these conditions is the trial court mandated to relieve the Public Defender; rather, the discretion to do so rests in the trial court. We hold, therefore, that the trial court did not violate the Statute in refusing, under these circumstances, to permit the Assistant Public Defender to withdraw.
The remaining two grounds argued under this Point are actually directed to an allegation that by failing to authorize the Assistant Public Defender to withdraw, and to grant his retained counsel's request for a continuance the trial court violated appellant's right to the effective assistance of trial counsel.
He argues that he is entitled to counsel of his own choosing and therefore he should not have been saddled with the Assistant Public Defender. While this right has been recognized, it is not absolute. It is limited to the extent it impinges on the public's right to effective and efficient administration of justice. State v. Jefferies, 504 S.W.2d 6, 7(1) (Mo.1974). Here, appellant's retained counsel did not enter his appearance until the cause was on the docket for trial and after the Assistant Public Defender had announced ready for trial. In fact, appellant had two counsel to assist him at trial and there is nothing in the record indicating any disharmony between them in the conduct of the trial. The Assistant Public Defender had been on the case almost sixty (60) days and by his own announcement was ready to try the case. There is nothing in this record to show that he was not ready.
With respect to the allegations that he was the victim of ineffective assistance of counsel, the appellant points to three incidents which he contends support his complaint, and which he says would have been handled differently if his retained counsel had been granted a continuance to properly prepare for trial. The first of these is what he refers to as a summary denial of pre-trial motions to suppress evidence, to suppress statements, and to dismiss, without an evidentiary hearing. Appellant, however, has utterly failed to identify with any particularity how the alleged neglect of counsel prejudiced his position. A defendant is not entitled to a new trial merely upon the proposition that counsel...
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State v. Hudson, s. 56177
...the trial court was not clearly erroneous. Failure to object to evidence is not generally ineffectiveness of counsel, State v. Morris, 591 S.W.2d 165, 169 (Mo.App.1979), and the motion court cannot be faulted for overruling a non-meritorious objection. Forshee v. State, 763 S.W.2d 352, 356 ......
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State v. Taylor, 51675
...is prima facie evidence to establish the accused's identification for the purpose of proving a prior conviction. State v. Morris, 591 S.W.2d 165, 169 (Mo.App.E.D.1979). We On June 5, 1985, Officer Corbin was on tri-car duty to enforce parking regulations. Defendant was visiting his sister, ......
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State v. Ashley
...and Dale was not to be found. The decision to grant or deny a continuance is discretionary with the trial court. State v. Morris, 591 S.W.2d 165, 169 (Mo.App.1979). A very strong showing is required to induce an appellate court to interfere with a discretionary ruling by a trial court on a ......
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State v. Smith, 41165.
...It is limited to the extent it impinges upon the public interest in the prompt and efficient administration of justice. State v. Morris, 591 S.W.2d 165, 168 (Mo.App.1979); State v. Jefferies, 504 S.W.2d at 7. "Only where the accused can demonstrate an irreconcilable conflict with appointed ......