State v. Vinson

• Decision Date: 20 November 1990
• Docket Number: No. 72609,72609
• Citation: 800 S.W.2d 444
• Parties: STATE of Missouri, Respondent, v. Ivan VINSON, Appellant. Ivan VINSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 444

800 S.W.2d 444

STATE of Missouri, Respondent, v. Ivan VINSON, Appellant.

Ivan VINSON, Appellant, v. STATE of Missouri, Respondent.

No. 72609.

Supreme Court of Missouri en banc.

Nov. 20, 1990.

Rehearing Denied Dec. 18, 1990.

Dave Hemingway, St. Louis, for appellant.

William L. Webster, Atty. Gen., Ronald L. Jurgeson, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Judge.

Ivan Vinson was convicted by a jury of two counts of first degree robbery, two counts of armed criminal action, and one count of kidnapping. The trial court, Sweeney, J., sentenced Vinson to a total of thirty years' imprisonment. Judgment was entered accordingly. Vinson filed a motion to vacate the judgment pursuant to Rule 29.15. After an evidentiary hearing, the motion court, Romines, J., denied relief and entered judgment accordingly. On consolidated appeal, the Court of Appeals, Eastern District, affirmed the judgments and transferred the appeal to this Court pursuant to Rule 83.02. Affirmed.

I.

Vinson does not challenge the sufficiency of the evidence. The evidence shows that Vinson robbed a gas station and kidnapped a customer at gunpoint. Vinson ordered the customer to drive him to a location thirty minutes from the robbery scene, where he forced the customer to leave the car and drove away alone. The gas station attendant and the customer identified Vinson from a photo array three months later. In his direct appeal, Vinson alleges the trial court erred in failing to dismiss a venirewoman for cause, erred in denying his request for a mistrial based on a detective's alleged comment on prior crimes committed by Vinson, and erred in admitting an in-court identification by the attendant and customer. This Court finds no merit in these contentions.

Vinson argues that because venirewoman Anne Sebold said her husband had been murdered in the line of duty as a police officer thirteen years earlier, she should have been discharged for cause. Vinson used a peremptory challenge to remove Sebold. While failure to grant a legitimate challenge for cause constitutes reversible error, State v. Lingar, 726 S.W.2d 728, 734 (Mo. banc 1987), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987), this Court finds no abuse of discretion in denying this challenge for cause. "In exercising this discretion, the decision of the trial court should rest upon the facts stated by the juror with reference to his state of mind and should not be allowed to depend upon the conclusions of the juror whether he could or would divest himself of a prejudice he admitted to exist in his mind." State v. Lovell, 506 S.W.2d 441, 444 (Mo. banc 1974). Nothing in the record indicates Sebold lacked impartiality, nor did she acknowledge any prejudice. Her relationship to a police officer and to a victim of a violent crime does not disqualify her, State v. Hopkins, 687 S.W.2d 188, 190 (Mo. banc 1985), especially in light of her assertion that she thought "justice was done" in her husband's case and that her husband's experience would not prevent her from considering objectively the evidence in this case. Vinson cites State v. Land, 478 S.W.2d 290 (Mo.1972), and State v. Kayser, 637 S.W.2d 836 (Mo.App.1982), for the proposition that the trial court cannot base its ruling on the venirepersons' subjective claims that they will be objective. The venirepersons in those cases, unlike Sebold in this case, expressly stated a bias toward the prosecution before professing their ability to remain objective.

Vinson claims the trial court erred in denying his request for a mistrial based on the testimony of Detective Phillip Law during his direct examination:

Q. (By Prosecutor) What did you all do in your investigative role?

A. We investigated the particular incident that happened at [what] we call the Lindbergh Shell. During the course of that investigation we developed leads to a suspect.

[Based upon the prosecutor's assurances that the witness had been cautioned not to reveal Vinson's suspected involvement in other crimes, the court overruled Vinson's objection to questions concerning the police department's investigative methods.]

Q. (By Prosecutor) Detective, then how did you go about solving this crime?

A. Solving the entire crime?

Q. Well, you said you developed leads.

A. Correct.

Q. What did you do then in an attempt to determine the actual robber and kidnapper of the incident at the Shell station?

A. We reviewed all the circumstances, the facts that we had in the original report. We didn't have a lot of facts to go on at the time. What we did was converse with other departments that would have crimes of a similar nature.

Vinson maintains this testimony served as a comment on prior crimes committed by him. Vinson moved for a mistrial; the trial court denied the motion, and the trial court instructed the jury to disregard the testimony.

This is not a case of "extraordinary circumstances in which prejudice to [Vinson could] be removed in no other way." State v. Schneider, 736 S.W.2d 392, 400 (Mo. banc 1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 871 (1988) (quoting State v. Davis, 653 S.W.2d 167, 176 (Mo. banc 1983)). The testimony that the police developed leads by contacting other unknown police departments regarding other unknown crimes committed at other unknown times did not intelligibly allude to any prior conduct by Vinson. Any conjecture by the jury that the "crimes of a similar nature" mentioned by Law involved Vinson was adequately redressed by the trial court's charge to disregard the testimony. The trial court did not abuse its discretion in preferring this remedial route over the drastic remedy of a mistrial under these circumstances. See State v. Alexander, 729 S.W.2d 467, 468-69 (Mo. banc 1986), and State v. Harris, 547 S.W.2d 473, 474-75 (Mo. banc 1977).

Vinson argues the trial court improperly permitted the victims to make in-court identifications of him. To prevail on this point, Vinson first must demonstrate that the investigative procedures employed by the police were impermissibly suggestive, and then that the suggestive procedures made the identification at trial unreliable. State v. Williams, 717 S.W.2d 561, 564 (Mo.App.1986). While "reliability is the lynch-pin in determining the admissibility of identification testimony," Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977), Vinson must clear the suggestiveness hurdle before procuring a reliability review. See Williams, 717 S.W.2d at 564, and State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc 1979), appeal dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980). The record reveals no pretrial suggestiveness in this case. Rather, the victims testified to the objectiveness of the pretrial identification procedures. Vinson grounds this point entirely in the factors relating to reliability, which absent a showing of impermissible suggestiveness "go to the weight of testimony and not to the admissibility of the identifications." State v. Morant, 758 S.W.2d 110, 117-18 (Mo.App.1988).

II.

Vinson also appeals the denial of his motion to vacate judgment and sentence pursuant to Rule 29.15. Vinson was sentenced February 26, 1988, and timely filed his notice of appeal March 3, 1988. Vinson filed a verified pro se Rule 29.15 motion March 22, 1988. Counsel was appointed to represent Vinson on the motion March 23, 1988, and the trial court, pursuant to Rule 29.15(l), ordered the suspension of the filing of the record on appeal on April 6, 1988. The trial transcript was completed May 18, 1988, and on June 6, 1988, counsel filed an unverified amended Rule 29.15 motion. The evidentiary hearing on the amended motion was held August 17, 1988. Vinson never sought leave to verify his amended motion out of time. The motion court entered its Findings of Fact, Conclusions of Law and Order of Court September 9, 1988. The trial transcript was filed with the Court of Appeals November 21, 1988. The Court of Appeals transferred this case and State v. White, 798 S.W.2d 694 (Mo. banc 1990), to this Court for an examination of the issue of the time within which counsel is permitted to file an amended motion under the time constraints of Rule 29.15(f) when counsel has been appointed prior to the filing of the trial transcript on appeal. Because Vinson's failure to verify his amended Rule 29.15 motion disposes of the issues raised in the amended motion and because this Court fully addressed the timing issue in White, this Court chooses to assume Vinson's amended motion, had it been verified, would have been filed timely under the reasoning in White and to address the verification issue before reaching the merits of Vinson's verified pro se motion.

The State contends the motion court lacked jurisdiction to consider the unverified amended motion. Vinson counters by arguing that the unverified amended motion does not bar review of the issues raised in the amended motion because the issues were tried by consent under Rule 55.33(b), because the State waived any objection to defects in the amended motion by failing to object within the Rule 29.15(f) ten-day period for prosecutorial "responses" to the amended motion, because the verification of the amended motion is not jurisdictional, because appointed counsel's duty to sift out frivolous claims fulfilled the function of the verification, and because the purpose of the verification was served when Vinson testified under oath to the facts supporting his claims.

This Court has ruled twice in recent months that the plain language of Rule 29.15 regarding the verification of Rule 29.15 motions means that an unverified motion under Rule 29.15(b) and (f) is a nullity and fails to invoke the circuit court's jurisdiction. Malone v. State, 798 S.W.2d 149, 150 (Mo. banc 1990); Kilgore v. State, 791 S.W.2d 393, 395 (Mo. banc 1990). See also State v. Mitchell, 789 S.W.2d 55 (Mo.App.1990); Reynolds v....