Vaca v. State, No. WD 69004 (Mo. App. 10/13/2009), WD 69004

• Decision Date: 13 October 2009
• Docket Number: No. WD 69004,WD 69004
• Citation: Vaca v. State, No. WD 69004 (Mo. App. 10/13/2009), No. WD 69004 (Mo. App. Oct 13, 2009)
• Parties: MIGUEL VACA, Appellant, v. STATE OF MISSOURI, Respondent.
• Court: Missouri Court of Appeals

Page 1

MIGUEL VACA, Appellant, v.STATE OF MISSOURI, Respondent.

No. WD 69004

Court of Appeals of Missouri, Western District.

October 13, 2009

Appeal from the Circuit Court of Platte County, Missouri The Honorable Owens L. Hull, Jr., Judge.

Before CourtEn Banc: Thomas H. Newton, Chief Judge, James E. Smart, Jr., Judge, Joseph M. Ellis, Judge, Victor C. Howard, Judge, Lisa White Hardwick, Judge, James E. Welsh, Judge, Alok Ahuja, Judge, Mark D. Pfeiffer, Judge and Harold L. Lowenstein, Senior Judge.

VICTOR C. HOWARD, Judge.

Miguel Vaca appeals the judgment of the motion court denying his Rule 29.15motion for postconviction relief following an evidentiary hearing.Vaca sought to vacate his convictions for two counts of first degree robbery, section 569.020¹, one count of attempted first degree robbery, section 564.011, three counts of armed criminal action, section 571.015, and one count of assault in the second degree, section 565.060, and total sentence of life plus 102 years.He claims that he was provided ineffective assistance of counsel regarding several evidentiary issues.The judgment is affirmed.

Factual Background

Vaca's convictions arise from three robberies or attempted robberies in Kansas City North in October and November 2002.On the evening of October 21, 2002, a man wearing a ski mask and holding a gun entered Salon North on Barry Road.He told Victoria Lynn and her customer Alicia Stevens to "give me your money."When neither responded, the man repeated his demand.Ms. Lynn then told him that she had no cash in the store because all of her customers paid by check.The man pointed his gun at the two women and told them to get their purses.He took a dollar bill from Ms. Lynn and grabbed her crotch from behind.Ms. Lynn spun around and shook her finger at him, stating that "you don't need to grab me like that."The man told the women to get on the floor and wait until he was gone.He then left.

When police arrived, Ms. Lynn and Ms. Stephens gave similar descriptions of the suspect: Hispanic, 5'6", average weight, and with a dark mask and a dark gun.Ms. Stephens also described the suspect as having a heavy lisp or speech impediment.

Immediately prior to the Salon North robbery, John Copeland was leaving work at Quality Cleaners (located next door to Salon North) when he bumped into a man on a mountain bike who was placing a ski mask over his face.Mr. Copeland continued to his car and then drove past the Quality Cleaners store to make sure his boss was all right.Seeing nothing amiss, Mr. Copeland left the area.When he heard the next day that Salon North had been robbed, he contacted the police to describe the man he had encountered the night before as in his 40's, 5'4" tall, and weighing 150 pounds.

On October 30, 2002, at approximately 5:00 pm, Mr. Copeland was working at the cleaners when a man wearing a ski mask entered the store.Mr. Copeland recognized this individual as the same person he had seen on the night of the Salon North robbery.The man pointed a black revolver at Mr. Copeland and told him to "give me the change."When Mr Copeland did not immediately comply, the man shot his gun towards the ceiling.Mr. Copeland then handed over all the cash in the register, totaling approximately $100.The man told Mr. Copeland to lie on the ground and left.

When the police arrived at Quality Cleaners, Mr. Copeland informed them that this was the same individual he had seen before the Salon North robbery.Mr. Copeland also mentioned that the man had a unique lisp.

On November 15, 2002, a children's birthday party was taking place on the second floor of the clubhouse at the Cove's North Apartments, close to the location of the earlier robberies.The party was attended by six girls, one boy, and one adult, Lorie Seper.During the party, a man wearing a dark ski mask and armed with a dark colored revolver entered the room and ordered all the children to get on the ground.Ms. Seper later described the suspect as a 5'6" man of "maybe a hundred and sixty pounds."The man demanded money from Ms. Seper, who emptied her purse to show him that she did not have any money.Because he was upset that she didn't have any cash, Ms. Seper told the man that she had money in her apartment.The gunman shoved his pistol in her side and forced her out of the room.One of the party's guests, a twelve-year-old girl, got up and told the gunman to leave Ms. Seper alone.The man pointed his gun at the girl and told her to sit down and shut up.The children cried and prayed after the gunmen led Ms. Seper out of the room.

The gunman forced Ms. Seper to the bottom of the steps and tried to force her into a restroom.Afraid that he was going to rape or shoot her, Ms. Seper tried to pull away.The man hit her in the head with the gun, and Ms. Seper got loose and ran.She ran outside and screamed for help.Robert Clardy, another resident of the apartment complex, was walking from his car to the building when he heard Ms. Seper screaming and saw her running.Mr. Clardy saw a man running toward him, pointing a gun.The man told Mr. Clardy to "get your ass up the steps," then fired a shot, which hit a wall behind Mr. Clardy.The children, who were still in the clubhouse, heard the gunshot and became even more upset, thinking that the gunman had shot Ms. Seper.The suspect fled the scene.

Investigators believed the same suspect had committed all three crimes.Police prepared a flyer containing a description of the suspect developed from the witness statements and asking that anyone with information about the robberies contact them.The flyer described the suspect as a Hispanic or white male, 30 to 45 years of age, 5'4" to 5'8" tall, with a thin build, wearing a dark mask, armed with a dark-colored handgun, with a lisp or strong accent, and riding a bicycle.

In each of the robberies, the gunman was reported to have fled toward the neighboring Cove's North and Quail Run apartment complexes.On November 20, 2002, the police distributed their flyers to anyone who entered or left the apartment complexes.One of the detectives was approached by a woman and her son, who pointed to a townhouse and said that they thought that a Hispanic man lived there and rode a bicycle.

Shortly thereafter, a cab pulled up in front of this townhouse.The appellant, Miguel Vaca, got into the cab and hunched down in the back seat.Police officers approached the cab and handed Vaca a flyer.He appeared nervous, and the officers noticed that he spoke with a lisp or speech impediment and matched the description of the robbery suspect.²Vaca was asked for his identification, and the police discovered that he had an outstanding arrest warrant.Vaca was arrested and consented to a search of his residence.

In Vaca's apartment the police found a black and purple mountain bike, a Taurus .38-caliber revolver, a receipt for the gun in Vaca's name, .38-caliber ammunition, and some torn blue fabric that appeared to have been a mask.Ballistics tests confirmed that bullet fragments recovered from Quality Cleaners and the Cove's North Apartments had been fired from Vaca's gun.Officers also recovered approximately $435 in cash, including a one dollar bill with the following handwritten notations: "October 21, 2002,""Salon North," and references to the fact that there was a female with a "nice ass," and a demand for money.A handwriting expert compared the writing on the bill to the handwriting samples submitted by Vaca and concluded that the writing on the bill was his.

After being arrested, Vaca was taken to the police station where he waived his Miranda rights and was interrogated.When asked what had happened at Salon North, Vaca told the detective that "I have psychological problems and sometimes I do things wrong."Vaca then described specific details of the robberies at Salon North, Quality Cleaners, and the Cove's North Clubhouse and admitted to committing all three robberies.However, Vaca stated that he did not remember being involved in a robbery committed in the same vicinity at KC Collectibles, which police were also investigating as part of the series of robberies.

At trial, Vaca testified on his own behalf, denying that he had committed any of the robberies.He contended that when the police questioned him, he denied knowing anything about the robberies.He also testified that the police forced him to write the incriminating evidence on the dollar bill in question.

The jury found Vaca guilty as charged.He was sentenced in accordance with the jury's recommendation to life imprisonment for robbery in the first degree for the Quality Cleaners robbery and ten years imprisonment for the associated armed criminal action count; thirty years imprisonment for robbery in the first degree for the Salon North robbery and ten years imprisonment for the associated armed criminal action count; fifteen years imprisonment for attempted robbery in the first degree for the crime at Cove's North and thirty years imprisonment for the associated armed criminal action count; and seven years imprisonment for assault in the second degree for striking Ms. Seper in the head with the gun.His convictions and sentences were affirmed by this court in a summary order and accompanying memorandum.State v. Vaca,204 S.W.3d 754(Mo. App. W.D.2006).

Vaca filed a Rule 29.15motion for postconviction relief, which was subsequently amended by counsel.Following an evidentiary hearing, the motion court issued findings of fact and conclusions of law denying Vaca's motion.This appeal followed.

Standard of Review

Appellate review of the denial of a postconviction relief motion is limited to determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous.Rule 29.15(k);Zink v. State,278 S.W.3d 170, 175(Mo. banc 2009).Findings and conclusions are clearly erroneous only if, after a review of the entire record, the...