State v. Tubbs, Nos. 16415

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: CROW; MAUS, P.J., and PREWITT
• Citation: 806 S.W.2d 746
• Parties: STATE of Missouri, Respondent, v. Bobby L. TUBBS, Appellant. Bobby L. TUBBS, Appellant, v. STATE of Missouri, Respondent.
• Decision Date: 11 March 1991
• Docket Number: Nos. 16415,16973

Page 746

806 S.W.2d 746 STATE of Missouri, Respondent,
v.
Bobby L. TUBBS, Appellant.
Bobby L. TUBBS, Appellant,
v.
STATE of Missouri, Respondent. Nos. 16415, 16973. Missouri Court of Appeals,
Southern District,
Division One. March 11, 1991. Motion for Rehearing and/or Transfer
Denied March 29, 1991.

Application to Transfer Denied May 3, 1991.

Page 747

Mary K. Anderson, Columbia, for appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

Appellant Bobby L. Tubbs, tried as a persistent offender, § 558.016.3, RSMo 1986, was found guilty by a jury of the class C felony of stealing, § 570.030, RSMo 1986. The trial court sentenced appellant to 12 years' imprisonment. Appellant brings appeal 16415 from that judgment and sentence.

Appellant thereafter commenced an action under Rule 29.15 ¹ to vacate the conviction. The circuit court conducted an evidentiary hearing, made meticulous findings of fact and conclusions of law, and entered judgment denying relief. Appellant brings appeal 16973 from that judgment.

The appeals have been consolidated, Rule 29.15(l ), but are addressed separately in this opinion.

Appeal 16415

Appellant presents one point relied on; it avers the trial court erred in (1) reading to the venire at the outset of the trial the portion of MAI-CR 3d 300.02 pertaining to reasonable doubt, and (2) giving the jury Instruction 4--accurately copied from MAI-CR 3d 302.04--at the conclusion of the evidence. Appellant maintains the instructions violated his right to due process guaranteed by the Fourteenth Amendment to the Constitution of the United States and Article I, § 10 of the Constitution of Missouri (1945). Appellant asserts the instructions equate proof beyond a reasonable doubt with the lesser, civil standard of "clear and convincing" evidence and thereby dilute the State's burden of proof in criminal cases.

Appellant acknowledges the Supreme Court of Missouri has held otherwise. State v. Murray, 744 S.W.2d 762, 771 (Mo. banc 1988), cert. denied, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988); State v. Antwine, 743 S.W.2d 51, 62-63 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988). Appellant explains he "presents this point to provide the possibility for later Federal review."

This Court is constitutionally controlled by decisions of the Supreme Court of Missouri. Mo. Const. Art. V, § 2 (1945); State v. Jones, 703 S.W.2d 41, 42 (Mo.App.1985). Appellant's point is governed by Murray and Antwine. The point is denied and the judgment is affirmed.

Page 748

Appeal 16973

Appellant presents one point relied on; it alleges he was denied his right to effective assistance of counsel at the jury trial, and the motion court erred in ruling otherwise. Specifically, says appellant, his lawyer ("defense counsel") failed to investigate and call as a witness Johnny Ricks. Appellant pleads (a) he asked defense counsel to call Ricks, (b) Ricks was willing and available to testify, and (c) Ricks would have testified appellant purchased the items appellant was accused of stealing.

Appellant's conviction was based on his possession of items stolen several hours earlier. At trial, appellant testified he bought the items from a man at "Paul's ... a little spot where people hang out." Appellant further testified the same man tried to sell the items to Ricks, a friend of appellant.

Ricks did not testify at appellant's trial.

At the motion court hearing, appellant testified that prior to trial he told defense counsel Ricks was with him the night the theft allegedly occurred and Ricks "was one of the persons that loaned me the money that I used to buy the items that I was in possession that I was charged with stealing." Appellant added he told defense counsel where Ricks resided. Appellant's testimony continued:

"Q. Did [defense counsel] ever tell you anything about whose responsibility it was to get your witnesses?

A. Yes. He informed me that, by me being on bond, I had to go out myself and find these people and bring them up to him. But I explained to him that I had talked to these people, but I had no control over making these people come up here.

Q. Okay. Did you request that [defense counsel] issue a subpoena for Mr. Ricks?

A. Yes, I did.

Q. Do you know if he did that?

A. I--I think he did.... A couple of days before the trial."

Defense counsel, called as a witness by appellant in the motion court, conceded appellant asked him to contact Ricks. Counsel's testimony:

"Q. ... Were you able to contact Mr. Ricks?

A. I told Bobby to bring him up there to the office.... And I figured that if I was going to get anything out of Ricks, he would need to bring him up there and be with him. And I did tell him to bring him.... I didn't go looking for him.... Bobby was...