State v. Schlup

• Citation: 785 S.W.2d 796
• Decision Date: 13 March 1990
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Lloyd E. SCHLUP, Appellant. 42178.
• Court: Court of Appeal of Missouri (US)

Page 796

785 S.W.2d 796

STATE of Missouri, Respondent, v. Lloyd E. SCHLUP, Appellant.

No. WD 42178.

Missouri Court of Appeals,

Western District.

March 13, 1990.

Melinda K. Pendergraph, Columbia, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

Before NUGENT, C.J., and SHANGLER and FENNER, JJ.

FENNER, Judge.

Appellant, Lloyd Schlup, appeals his conviction for assault in the first degree under § 565.050, RSMo 1986. After trial by jury, appellant was sentenced by the court as a persistent offender to life imprisonment.

Initially, no appeal was taken from appellant's conviction. However, appellant did file a motion for post-conviction relief under then Rule 27.26. Appellant's Rule 27.26 proceeding is reported in Schlup v. State, 771 S.W.2d 895 (Mo.App.1989). In Schlup, this court ruled that trial counsel's failure to file an appeal without appellant consenting to abandoning appeal and without counsel requesting permission from the court to withdraw, constituted ineffective assistance of counsel. Appellant's sentence was vacated and the case was remanded to the trial court for resentencing with the time for appeal commencing to run from the date of the resentencing. Appellant was resentenced to life imprisonment and this appeal followed.

Viewed in the light most favorable to the verdict, the evidence at trial supports appellant's conviction. On May 3, 1982, Sergeant Ellis Peoples was on duty as a corrections officer for the Missouri Department of Corrections at the Missouri State Penitentiary. At around 10:00 p.m., Sergeant Peoples saw appellant and his cellmate, Larry Wickizer, return to their cell after watching a movie. The Sergeant accompanied appellant and Wickizer to their cell and locked the door. He then proceeded to lock in the other inmates.

Later on Sergeant Peoples returned to appellant's cell and saw that it had been "torn up." Wickizer was standing at the back of the cell with a large gash across his throat. There was blood down the front of Wickizer's shirt, all over his face and hands. Appellant was standing at the front of the cell holding a homemade knife. Wickizer had suffered stab wounds to his neck, back and arm. One of the major vessels in his neck had been cut. The only injury to appellant was a small cut on his finger.

In his first point appellant argues that the trial court committed plain error in failing to compel certain discovery. Appellant argues that the state failed to disclose (1) reports of the blood and urine analysis of appellant, (2) medical reports of appellant's injuries and treatment, (3) the prison classification and assignment sheets for appellant and Wickizer, (4) crime scene photographs and photographs of appellant, and (5) the statement of rights given to appellant. Appellant seeks "plain error" review of these allegations as they were not addressed in his Motion for New Trial. Under the plain error standard of review, plain error affecting substantial rights may be considered on appeal, although not properly preserved for review, but only where there is a sound, substantial manifestation, a strong, clear showing, that injustice or miscarriage of justice will result if relief is not given. State v. Wood, 719 S.W.2d 756, 759 (Mo. banc 1986).

Appellant's claims in regard to the prejudicial effect of allegedly not being provided with the reports of his blood and urine analysis, the medical reports of his injuries and treatment, and the prison classification and assignment sheets were all raised in appellant's appeal of the denial of his post-conviction motion under then Rule 27.26. These allegations of error were argued to constitute ineffective assistance of counsel for failure of trial counsel to compel their discovery in Schlup v. State, 771 S.W.2d 895.

In Schlup this court held that appellant was not prejudiced by any alleged failure of counsel to obtain reports of blood and urine analysis that were allegedly taken from appellant. The court also held that in light of appellant's own testimony about the minor nature of the injuries he suffered that he was not prejudiced by counsel not obtaining the medical reports of appellant's injuries and treatment. In regard to the jail classification and assignment sheets, the court held that there was no prejudice to appellant.

A defendant is precluded from transforming alleged trial errors in the direct appeal into claims of ineffective assistance of counsel in a post-conviction proceeding. O'Neal v. State, 766 S.W.2d 91, 92 (Mo. banc 1989). A post-conviction proceeding cannot be used as a vehicle for a second appellate review and issues decided in the direct appeal cannot be relitigated in a post-conviction proceeding. Id. Additionally, in Sidebottom v. State, 781 S.W.2d 791 (Mo. banc 1989), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the Missouri Supreme Court ruled that if a request for plain error relief on an issue is denied on direct appeal, that "the bases for the Court's finding of no manifest injustice on direct appeal serve now to establish a finding of no prejudice under the Strickland test" that is applied to ineffective assistance of counsel claims. Conversely, a court's finding of no prejudice on a given issue under the Strickland test precludes a finding of manifest injustice on the same issue.

Appellant's allegations of error for allegedly not being provided the reports on his blood and urine analysis, the medical reports of his injuries and treatment, and the prison classification and assignment sheets were decided against appellant in Schlup v. State, 771 S.W.2d 895. The holding of this court in regard to these issues in Schlup precludes finding of manifest injustice.

Appellant's allegations of error for not being provided the photographs of the crime scene, photographs of himself and the statement of rights that he was given, were not addressed in his post-conviction proceeding.

The basic object of discovery is to afford the defense fair opportunity to avoid surprise and prepare for trial. State v. Sykes, 628 S.W.2d 653, 656 (Mo. banc 1982). Thus, the prosecution must disclose evidence favorable to the accused where the evidence is material either to the defendant's guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). In United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985), the United States Supreme Court stated that a constitutional error occurs in the failure of the state to disclose evidence "only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." In defining materiality, the United States Supreme Court adopted the Strickland test as set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The evidence is material only if there is reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. Furthermore, it is the defendant's burden to show that the evidence is material and exculpatory. State v. Chaney, 663 S.W.2d 279, 285 (Mo.App.1983).

Appellant has failed to show a reasonable probability that discovery of the photographs and statement of rights would have altered the result of the proceeding. The record does not support a finding of manifest injustice. Appellant's allegations of plain error for not being provided the photographs and the statement of rights are denied.

Appellant next argues that the trial court plainly erred in not declaring a mistrial sua sponte, when the prosecutor asked appellant, on cross-examination, whether his prior assault and sodomy convictions illustrated his character of being violent and a homosexual.

Appellant did not object to the cross-examination of which he now complains and he made no claim of error in this regard in his motion for new trial. Thus, appellant's claim is once again subject only to plain error review.

A trial court is vested with broad discretion in determining the extent of cross-examination. State v. Taylor, 745 S.W.2d 173, 175 (Mo.App.1987). When a defendant elects to testify in his own defense, he may be cross-examined in detail as to any matter generally referred to in his direct examination. State v. Foulk, 725 S.W.2d 56, 70 (Mo.App.1987). Thus, a defendant cannot complain about the state's inquiring about matters first brought into the case by the defendant. State v. Jordan, 646 S.W.2d 747, 750 (Mo. banc 1983).

Where an accused tenders the factual issue of bad character of the victim to substantiate his plea of self-defense, he thereby extends the scope of the inquiry beyond the res gestae and opens up for inquiry all evidence of like quality having probative value on the merits of said ultimate factual issue. State v. Robinson, 344 Mo. 1094, 130 S.W.2d 530, 532 (1939). Where the defendant places the victim's reputation as a violent and turbulent man before the jury, he also places his own. State v. Hill, 614 S.W.2d 744, 752 (Mo.App.1981).

Appellant took the stand in his own behalf at trial. Appellant testified that he previously had trouble with Wickizer; that Wickizer had made homosexual "passes" at appellant; that the two had fought each other before the May 3rd incident and in the fight Wickizer hit appellant, knocked him to the floor, choked him, beat him with a picture frame and threatened to kill him. Appellant testified that he did not report the incident because he feared for his life. Appellant testified that on May 3rd, Wickizer attacked him with a knife, the two wrestled and appellant got possession of the knife; he stabbed Wickizer in the neck; that appellant and Wickizer had plenty of "push and...