Stuckey v. State

• Decision Date: 19 July 1988
• Docket Number: No. WD,WD
• Citation: 756 S.W.2d 587
• Parties: Bobbie Gene STUCKEY, Appellant, v. STATE of Missouri, Respondent. 39717.
• Court: Missouri Court of Appeals

Page 587

756 S.W.2d 587

Bobbie Gene STUCKEY, Appellant, v. STATE of Missouri, Respondent.

No. WD 39717.

Missouri Court of Appeals Western District.

July 19, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 30, 1988.

Thomas J. Cox, Marilyn S. Gussman, E. Ann Wright, Kansas City, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before SHANGLER, P.J., and LOWENSTEIN and GAITAN, JJ.

GAITAN, Judge.

Bobbie Gene Stuckey appeals from the denial after an evidentiary hearing of his Rule 27.26 motion for post-conviction relief. We affirm.

Stuckey was found guilty by a jury in the Circuit Court of Grundy County of capital murder, § 565.001, RSMo (1978) and was sentenced by the court to life imprisonment without possibility of parole for 50 years. The state's evidence showed that Stuckey and his wife, Mitzie Stuckey, who was also convicted of murder, jointly participated in the murder of Larry Wilson and the subsequent theft of a trailerload of hogs. Following transfer from this Court, the conviction and sentence were upheld on appeal. State v. Stuckey, 680 S.W.2d 931 (Mo. banc 1984).

On August 27, 1985, Stuckey filed a pro se motion under Rule 27.26. Following the appointment of counsel, an amended motion was filed on January 27, 1986. Thereafter, Stuckey filed a Partial Dismissal in which he voluntarily dismissed four of the grounds set forth in his motion. In the grounds remaining to be decided, Stuckey alleged: (1) ineffective assistance of counsel; (2) denial of due process due to conflicts in the prosecution's case against him and the prosecution's case against his wife for the same murder; (3) denial of due process due to the admission of inadmissible testimony; (4) denial of due process due to improper prosecutorial argument; (5) denial of due process due to the admission of improper rebuttal testimony; and (6) denial of due process due to suggestive and improper lineup procedures.

On or about February 10, 1986, the state filed a motion to produce all documents which were compiled by one of Stuckey's trial attorneys in connection with his representation of Stuckey at trial. In his response to the motion, Stuckey objected to the state's request on the grounds that it was overbroad, unduly burdensome and sought documents which were protected by the work product doctrine and attorney-client privilege. The court subsequently ordered production of the requested documents. Thereafter, these documents were made available to the prosecuting attorney.

An evidentiary hearing was held pursuant to Stuckey's 27.26 motion on July 17, 1986. Stuckey was the only witness to testify in his behalf. Over one year later, on July 27, 1987, the trial court made findings of fact and conclusions of law denying the motion. This appeal followed. Our review is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous. Rule 27.26(j); Leigh v. State, 673 S.W.2d 788, 790 (Mo.App.1984).

In Points I, III, IV and V of his brief, Stuckey sets forth various allegations of trial error. In an effort to bring these matters within the scope of Rule 27.26, Stuckey asserts that by these occurrences he was deprived of due process of law under the fifth and fourteenth amendments of the United States Constitution and Article I, Section 10 of the Missouri Constitution.

Points I and IV involve challenges to certain statements made by the prosecutor during his closing argument. Stuckey's principal contention under Point I is that the prosecutor was foreclosed by the doctrine of collateral estoppel from arguing that Stuckey had shot Larry Wilson when he later argued at the subsequent trial of Mitzie Stuckey that she had done the shooting. He also complains, under Point IV, that the prosecutor argued facts not in evidence and made statements which were inflammatory and unfairly prejudiced the minds of the jurors against him.

Under subsection A of his Point III on appeal, Stuckey contends that the trial testimony of Marion Wilson, Dianna Dishman, and Kwei Lee Su was improperly admitted into evidence because "such had not previously been provided to appellant by the prosecutor." Under subsection B of the same point, he alleges that the testimony of Steven Broughton concerning his identification of Mitzie Stuckey was improperly admitted because it was the product of "one photo lineup."

Finally, under subsections A and B of Point V, Stuckey complains that the testimony of Sheriff Dean Mason concerning "the truth and veracity of appellant" should not have been admitted because the basis of his knowledge was never shown, and that the state should not have been permitted to elicit the testimony of James Johnston regarding statements made by Stuckey before his arrest because these statements constituted improper rebuttal evidence.

Rule 27.26 specifically provides that "[m]ere trial errors are to be corrected on direct appeal" and "[a] proceeding under this Rule ordinarily cannot be used ... as a substitute for a second appeal." Rule 27.26(b)(3). Thus, claims relating to the propriety of a prosecutor's closing argument, see Forbes v. State, 627 S.W.2d 58, 60 (Mo.App.1981); Tyler v. State, 574 S.W.2d 434, 435 (Mo.App.1978), or prosecutorial misconduct, see Bufalo v. State, 614 S.W.2d 29, 32 (Mo.App.1981), are considered "trial errors" beyond the scope of Rule 27.26 proceeding. Claims concerning the state's failure to comply with the rules of discovery are likewise outside the purview of a Rule 27.26 action. Baker v. State, 584 S.W.2d 65, 68 (Mo. banc 1979). Nor may the alleged improper admission of evidence be litigated in a Rule 27.26 motion. O'Neal v. State, 486 S.W.2d 206, 207 (Mo.1972); Jones v. State, 591 S.W.2d 153, 155 (Mo.App.1979).

Although we are mindful that Rule 27.26 provides that "trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal," Rule 27.26(b)(3), trial errors cannot be brought within the scope of Rule 27.26 merely by alleging as a conclusion that they affected constitutional rights. Hanson v. State, 684 S.W.2d 337, 339 (Mo.App.1984). Moreover, even trial errors affecting constitutional rights cannot be litigated in a Rule 27.26 motion "except in rare and exceptional circumstances." McCrary v. State, 529 S.W.2d 467, 472 (Mo.App.1975). See also Brown v. State, 729 S.W.2d 54, 55 (Mo.App.1987).

There is nothing in the record to indicate, nor does Stuckey allege, special circumstances which would have prevented him from raising these issues on direct appeal. See Arbeiter v. State, 738 S.W.2d 515, 516 (Mo.App.1987). Therefore, Points I, III, IV and V are denied.

Under Point II of his brief, Stuckey contends that he was denied effective assistance of counsel in that his attorneys: (1) failed to object to improper remarks made by the prosecution during closing argument; (2) failed to make reasonable inquiry before trial into the testimony of Dr. Mote, a pathologist called as an expert witness by the state, which resulted in their being unprepared and unable to rebut his testimony at trial; (3) failed to investigate or take statements from other witnesses called by the state; and (4) failed to discuss the case with him or take his statement of what occurred until the second night of trial.

Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984). In order to overcome this presumption of competency and prevail on a claim of ineffective assistance of counsel, the movant bears the burden of showing that counsel's performance was deficient and that his or her "deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. This showing must be made by a preponderance of the evidence. Jackson v. State, 672 S.W.2d 367, 368 (Mo.App.1984).

An attorney's performance has been deficient when "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The "prejudice" prong of this two-part test is satisfied when it is shown that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

Applying the foregoing principles to the present case, we find that Stuckey has failed to sustain his burden with respect to the allegations of ineffectiveness raised in his motion.

Stuckey complains that he was denied effective assistance of counsel because his attorneys failed to make timely objections to the following comments made by the prosecutor during closing argument:

(1) "It just upsets me no end, to hear somebody get up here under oath and tell you folks a lie."

(2) "He got on the stand and told you a bald-faced lie."

(3) "He didn't want to waste lead, I guess."

(4) The jury should return a guilty verdict "so that we will not have any other wives and children without fathers, and so that our community and the streets can be safe for us all."

(5) "You know what she'll say. 'I didn't do it, he did.' "

No objections were made to the first three comments. Although his attorney objected to the latter two comments, the objections were not made contemporaneously and were overruled. In his direct appeal, Stuckey unsuccessfully alleged that the trial court erred in overruling these objections. See State v. Stuckey, supra, 680 S.W.2d at 937-38.

Standing alone, the failure to object to objectionable evidence or argument does not establish ineffective assistance of ...