Tate v. State, 48060
| Decision Date | 29 June 1984 |
| Docket Number | No. 48060,48060 |
| Citation | 675 S.W.2d 89 |
| Court | Missouri Court of Appeals |
| Parties | Kenneth Edward TATE, Appellant, v. STATE of Missouri, Respondent. |
Kenny C. Hulshof, Jackson, for appellant.
John Ashcroft, Atty. Gen., Dan J. Crawford, Asst. Atty. Gen., Jefferson City, for respondent.
Movant appeals the denial, without an evidentiary hearing, of his Rule 27.26 motion. We affirm.
Movant was convicted of second-degree murder and sentenced to 25 years imprisonment. This conviction was affirmed. State v. Tate, 637 S.W.2d 67 (Mo.App.1982). Defendant filed this Rule 27.26 motion on March 31, 1983. This motion was denied on November 21, 1983 without an evidentiary hearing. He appeals, alleging he should have received an evidentiary hearing on his contentions of ineffective assistance of counsel, procurement of his conviction by the state's knowing use of perjured testimony, and use of statements at trial garnered in violation of his right to counsel.
Movant is entitled to an evidentiary hearing on his motion if he alleges facts, not conclusions, which would warrant relief. These allegations must not be refuted by the files and records of the case, and the matters complained of must have prejudiced movant. Smith v. State, 652 S.W.2d 134, 134 (Mo.App.1983).
Movant's allegations all attack the testimony at trial of two witnesses, Charles Crutchfield and Donald Boyer. These witnesses, both of whom were inmates with movant during his pretrial incarceration in the Jefferson County Jail, testified movant confessed his guilt to them. Movant gave his attorney a list of possible witnesses who would testify they never heard him confess to themselves or to Crutchfield or Boyer. These possible witnesses would also testify to the bias of those who testified for the state, and to "force or influence" used on Crutchfield and Boyer to procure their testimony. Depositions of some of these men were taken, one of which was read to the jury. None of movant's inmate witnesses were called to testify live.
Movant asserts the failure of his attorney to call these witnesses was ineffective assistance of counsel. To establish this, movant must show counsel did not exhibit the customary skill and diligence exercised by a reasonably competent attorney under similar circumstances. Love v. State, 670 S.W.2d 499 (Mo.banc 1984). Failure to call witnesses who would provide defendant a defense entitles movant to a evidentiary hearing on a Rule 27.26 motion. Mullen v. State, 638 S.W.2d 304, 305 (Mo.App.1982).
This is not such a case. The testimony of movant's witnesses, if believed, would not negate the testimony on movant's confessions. It would be possible for the jury to believe movant's witnesses never heard movant confess to Crutchfield and/or Boyer, and still believe movant did so confess. The version of movant's witnesses did not exclude periods of time when contact between movant and the state's witnesses could occur during which movant could have confessed. Therefore, these witnesses would not provide defendant a defense. Cf. Mullen, supra. Their testimony would only have impeached the state's inmate witnesses. Decker v. State, 623 S.W.2d 563, 565 (Mo.App.1981). In addition, evidence to this effect was introduced by movant's own testimony and the deposition of Van Huskey, one of the inmates movant claims should have testified. The testimony would been cumulative, and failure to use it does not establish ineffective assistance of counsel. Coleman v. State, 621 S.W.2d 357, 359 (Mo.App.1981).
What has been said also disposes of movant's contention the state knowingly used the perjured testimony of Crutchfield and Boyer to procure the conviction. Movant relies on the same testimony of his witnesses to show Crutchfield and Boyer perjured themselves. Allegations of false testimony, used knowingly by the state, would support the need for a hearing. Ray v. State, 644 S.W.2d 663, 666-67 (Mo.App.1982). However, the testimony movant uses to prove perjury by Crutchfield and Boyer is, while impeaching, not necessarily inconsistent. As movant's testimony would...
To continue reading
Request your trial
-
State v. Twenter
...is not the basis for a claim of ineffective assistance of counsel. Lane v. State, 778 S.W.2d 769, 771 (Mo.App.1989); Tate v. State, 675 S.W.2d 89, 91 (Mo.App.1984). Defense counsel may rely on his client to identify the witnesses to be interviewed. Johnson v. State, 479 S.W.2d at 420. Unles......
-
Coday v. State
...testimony would not have negated the very damaging admissions by Coday that he was the person who killed Victim. See Tate v. State, 675 S.W.2d 89, 91 (Mo.App.1984). Accordingly, the jury could have found that Coday was guilty of murdering Victim irrespective of whether she had first been ra......
-
State v. Hutton, s. 58070
...who would provide a defendant a defense may entitle the defendant to an evidentiary hearing on his Rule 29.15 motion. Tate v. State, 675 S.W.2d 89, 91 (Mo.App.1984). However, failure to call a witness whose testimony would have been merely cumulative or would have only impeached a state wit......
-
State v. Anderson
...whose testimony would only impeach a state's witness is not sufficient to establish ineffective assistance of counsel. Tate v. State, 675 S.W.2d 89, 91 (Mo.App.1984); State v. Harris, 669 S.W.2d 579, 582 (Mo.App.1984). Moreover, a substantial amount of Hott's testimony would have been cumul......