Turner v. State
| Decision Date | 28 February 1989 |
| Docket Number | No. 54423,54423 |
| Citation | 765 S.W.2d 708 |
| Parties | Frederick W. TURNER, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Frederick Wayne Turner, Jefferson City, pro se.
William L. Webster, Atty. Gen., Robert V. Franson, 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 for the murder of his son, and sentenced to 30 years imprisonment. The conviction was affirmed at 716 S.W.2d 462 (Mo.App.1986). Movant then filed his pro se 27.26 motion, raising the following ten points of error: 1) failure to state, in the information, specific facts supporting the charge; 2) failure to include the charge of manslaughter in the information; 3) failure to conform the instruction of self-defense to that "required by law", and failure of counsel to demand the correct instruction; 4) failure of counsel on appeal to order transcripts of closing arguments, which included prejudicial comments by the prosecution; 5) failure of counsel to object to the prosecution's evidence of "unrelated incidents and of the character of the movant" when movant had not yet testified nor had yet raised self-defense; 6) movant was tried for offenses for which he was not charged, such as other assaults and batteries; 7) failure of counsel to cite federal case law, thereby preventing movant from maintaining a federal habeas corpus action; 8) failure of counsel to obtain a psychiatric evaluation of movant; 9) movant's confession was obtained in violation of his constitutional rights, and 10) the jury, in sentencing, considered charges for which movant was not being tried.
After a hearing at which movant personally appeared, the motion court found on March 27, 1987, that movant was not indigent and did not qualify for representation by a public defender. Movant was advised that the State's Motion to Dismiss was set for May 7, 1987, without oral argument. Movant then filed various motions, including a "Motion For Extension of Time in Which to Complete Discovery, to Investigate the Facts, and to Amend the Motion and for Psychiatric Examination", a motion for the assistance of a paralegal and a motion for leave to take depositions via cassette recorder.
On May 7, 1987, the court denied movant's 27.26 motion without a hearing. The court issued findings of fact and conclusions of law, concluding: 1) movant's claims of ineffective assistance of counsel involved matters of trial strategy and were inadequate bases for attack; 2) neither the information nor the self-defense instruction was deficient; 3) the claims regarding movant's confession and the jury's consideration of other offenses in sentencing movant were conclusory, failing to set forth specific facts. The court further found that any facts alleged in the motion were refuted in the record.
Movant raises two points on appeal. First, that the motion court abused its discretion in dismissing movant's claim after movant requested additional time to investigate, amend his motion, for discovery, psychiatric evaluation, and assistance of a paralegal. Second, that the court abused its discretion in dismissing movant's claims because his claims "individually and collectively required a hearing".
Our review is limited to determining whether the findings, conclusions and judgment of the trial court are clearly erroneous. We must be left with a definite impression that a mistake has been made. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Movant has not alleged specific facts not refuted by the record, which, if proven, would entitle him to relief. Allbritton v. State, 747 S.W.2d 687, 688-89 (Mo.App.1988). We will address movant's points as presented before the motion court.
Movant charges that the information "written in generic terms was totally inadequate as a matter of law, and failed to plead facts...." He does not suggest what additional facts were necessary. The information is in substantial compliance with MACH-CR 13.04 (1984 New), the form approved by the Supreme Court. Rule 23.01(e). The information clearly fulfilled its twofold purpose of informing the accused of the charge against him and of precluding retrial on the same charge if he had been acquitted. State v. Holland, 653 S.W.2d 670, 674 (Mo. banc 1983). We find no error.
Movant next contends that the complaint, signed by his ex-wife and "filed in the magistrate court", which charged him with manslaughter, should have precluded the prosecuting attorney from subsequently filing an information charging him with murder second degree. Not only is this contention without merit, it is refuted by the record. His ex-wife executed a sworn complaint pursuant to Rule 22.03 which served as a basis for the issuance of an arrest warrant. This complaint charged movant with murder second degree and, in an alternative second count, with the Class C felony of involuntary manslaughter. The prosecuting attorney had the discretion to file an information charging movant with the degree of homicide he believed the facts supported.
Movant's third complaint charges instructional error. Instruction No. 8 submitted by movant's trial counsel, instructed the jury on the defense of justifiable use of force in self-defense. MAI-CR2d 2.41.1. He now contends the trial court erred, and that his trial counsel was ineffective, by not instructing the jury that he was justified not only to act in self-defense but also to protect his property, to protect his person from assault and battery and to protect against a felony.
Generally, allegations of instructional error are matters for review on direct appeal, not in post-conviction proceedings. Cherry v. State, 660 S.W.2d 361, 363 (Mo.App.1983); Hulsey v. State, 631 S.W.2d 368, 370 (Mo.App.1982). Nevertheless, we have examined the trial transcript and find no error. Apparently movant's contention is that the trial court, in addition to instructing on justifiable use of force in self-defense, should also have instructed on the justifiable use of force in defense of premises, MAI-CR2d 2.42, and in defense of property, MAI-CR2d 2.43. No evidence at the trial would require or even support the giving of such instructions. The motion court did not err in finding this contention refuted by the record.
Movant alleges he was denied effective assistance of counsel on appeal because the closing argument of the prosecutor, which contained prejudicial argument, was not included in the record on appeal. The bare allegation of "prejudicial argument" is a pure conclusion and fails to show movant entitled to an evidentiary hearing or to any relief. Frazier v. State, 738 S.W.2d 131, 133 (Mo.App.1987).
Movant's next two points and his tenth point allege trial court error and ineffective assistance of counsel regarding the admission of evidence and the consideration by the jury of his involvement in other unrelated crimes. The only incidents referred to in the motion and transcript are other altercations with the victim and other members of movant's family. These are not unrelated incidents but are relevant to the issue of intent and justification. Once again, the motion court properly found these contentions to be refuted by the record.
Next movant contends that the failure of his appellate counsel to cite federal case law and federal authorities to support his motion to suppress statements has deprived him of the right to seek habeas corpus relief in the federal court. In support of this rather novel contention he cites Melvin Leroy Tyler v. Wyrick, 730 F.2d 1209 (8th Cir.1984), which stands for the principle that in a federal habeas corpus action exhaustion of state remedies requires presentation to the state...
To continue reading
Request your trial
-
Johnson v. State
..."allegations of instructional error are matters for review on direct appeal, not in post-conviction proceedings." Turner v. State, 765 S.W.2d 708, 710 (Mo.App. E.D.1989). Because Movant's claim of ineffective assistance by his trial counsel does not contest the fairness of his trial, but on......