Vaughn v. State, WD

• Citation: 763 S.W.2d 232
• Decision Date: 22 November 1988
• Docket Number: No. WD,WD
• Parties: Larry VAUGHN, Appellant, v. STATE of Missouri, Respondent. 40358.
• Court: Missouri Court of Appeals

Page 232

763 S.W.2d 232

Larry VAUGHN, Appellant, v. STATE of Missouri, Respondent.

No. WD 40358.

Missouri Court of Appeals Western District.

Nov. 22, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 27, 1988.

Application to Transfer Denied Feb. 14, 1989.

Craig A. Johnston, Asst. Public Defender, Columbia, for appellant.

William L. Webster, Atty. Gen., William J. Swift, Asst. Atty. Gen., Jefferson City, for respondent.

Before FENNER, P.J., and MANFORD and GAITAN, JJ.

GAITAN, Judge.

This appeal is from a denial of Larry Vaughn's Rule 27.26 motion to vacate judgment and sentence for second degree murder for which he was sentenced to thirty (30) years in the Missouri Department of Corrections. § 565.004, RSMo 1978 (repealed and replaced by § 565.021, RSMo 1986). Appellant's conviction was affirmed in State v. Vaughn, 707 S.W.2d 422 (Mo.App.1986).

Appellant raises in the first four points on appeal that the motion court erred in denying postconviction relief, and in finding that appellant was not denied effective assistance of counsel or his right to a fair trial and due process. Appellant's fifth point is that the trial court was without jurisdiction in that the state improperly filed an amended affidavit changing the charge from felony murder to conventional murder.

An affidavit was filed in the associate division on March 3, 1984 (Case No. 108127), charging appellant with violation of § 559.020, RSMo 1979, Murder in the Second Degree. On May 10, 1984, a First Amended Affidavit was filed charging appellant with violation of § 565.004, RSMo 1978, of committing murder in the second degree. On May 11, 1984, appellant appeared personally and by counsel and waived formal arraignment as to the First Amended Affidavit. Information was filed on May 21, 1984 in Boone County Circuit Court charging the same offense as found in the First Amended Affidavit. Appellant appeared with counsel, waived formal arraignment and entered a plea of not guilty.

Appellant filed a pro se motion to vacate his conviction and sentence on June 30, 1984. He filed a pro se First Amended Motion under Rule 27.26 on August 21, 1987, and counsel filed a Second Amended Motion on October 2, 1987.

Appellant first contends that trial counsel's failure to specifically object to, preserve on motion for new trial and raise on appeal the fact that the state's verdict director lacked a cross-reference to the intoxication defense instruction resulted in a denial of effective assistance of counsel. This Court has held that the failure to include the required cross-reference for special negative defenses requires reversal because such failure is prejudicial. State v. Cook, 727 S.W.2d 413, 415 (Mo.App.1987). However, appellant's motion to vacate should only be sustained if prejudice exists such that "there is a reasonable possibility that competent counsel could have obtained a different result." Love v. State, 670 S.W.2d 499, 504 (Mo. banc 1984).

In Love v. State, the movant argued that counsel was ineffective because a manslaughter instruction was not given even though mandated by the Notes on Use. Id. at 501. The Missouri Supreme Court acknowledged that if properly raised, the absence of the instruction would have warranted the granting of a new trial. Id. at 502. However, the challenge was rejected because the motion court was not clearly erroneous in finding that there was not a reasonable possibility that competent counsel could have obtained a different result. Id. at 504.

Appellate review of a denial of postconviction relief sought in a motion to vacate or set aside sentence is limited to determining whether the findings, conclusions and judgment of the trial court are clearly erroneous. Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984); Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986). The trial court's findings and conclusions are clearly erroneous only if a review of the entire record leaves the court with a definite and firm impression that a mistake was made. Knight v. State, 491 S.W.2d 282, 284 (Mo.1973); Richardson v. State, 719 S.W.2d at 915.

In the case at bar, the findings of fact and conclusions of law of the motion court suggest that counsel's performance was indeed deficient. However, the court found that the outcome would not have been different had the omitted cross-reference been inserted. In making such a finding, the court relied upon the fact that the sole defense was causation and that the voluntary intoxication instruction was not a viable or palatable defense. Therefore, the court's conclusion that the outcome would not have been different is not clearly erroneous. The appellant's first point is therefore denied.

Appellant's second point is that he was denied due process because the verdict director lacked a cross-reference to the intoxication defense. Claims for instructional errors are generally not cognizable in Rule 27.26 proceedings. Battle v. State, 745 S.W.2d 730, 734 (Mo.App.1988) (Petition for Certiorari filed June 11, 1988); Brager v. State, 625 S.W.2d 892, 895 (Mo.App.1981). In order to present a constitutional claim in Missouri courts, the claim must be advanced "at the earliest time consistent with good pleading and orderly procedure, and must be kept alive during the course of the proceedings." Stokes v. State, 688 S.W.2d 19, 22-23 (Mo.App.1985). In the case at bar, appellant's filing of the claim two and one-half years after judgment was entered is not expeditious and he has shown no rare or exceptional circumstance to excuse his delay. Therefore, appellant's second point is also denied.

The third point of appellant's argument is that the allowance of testimony that appellant had a reputation as a fighter was erroneous and a deprivation of his right to a fair trial and due process. Appellant argues that counsel was ineffective in not seeking a mistrial and not including in the motion for a new trial the fact that a state's witness, Officer White, testified that appellant had a reputation as a fighter. Officer White's testimony on direct examination was as follows:

Q. Did you have occasion to formulate any opinion as to Larry Dean Vaughn's level of intoxication that evening, whether he was or was not intoxicated?

A. Well, he was displaying some traits of intoxication. He had blood shot eyes and his speech was somewhat slurred and, of course, he was combative, which normally might indicate intoxication given his known reputation as a fighter.

MR. STAMPER: Objection, Your Honor.

THE COURT: Objection will be sustained.

MR. STAMPER: Would you ask the jury to disregard that comment?

THE COURT: The jury will disregard that last comment.

In order to establish ineffective assistance of counsel, appellant must demonstrate both the failure to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances and that he was prejudiced by such failure. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). During the Rule 27.26 hearing, no evidence was offered as to why counsel did not seek a mistrial. However, the case at bar is similar to a recent decision by this Court in Camillo v. State, 757 S.W.2d 234 (Mo.App.1988). In Camillo, a witness testified that Camillo was "into drugs." Id. at 240. Counsel's objection to that testimony was sustained, but unlike the case at bar, an instruction to disregard was not given. Id. at 241. This Court indicated that in order to be successful on an ineffectiveness claim based upon the failure to request a mistrial or an instruction to disregard "it must be shown that, had counsel requested the additional relief, there is a reasonable probability that the result of the trial would have been different." Id. The reasons identified by the Court for finding that there was not a reasonable probability that the result would have been different were that (1) the comment was indefinite as to specific acts; (2) counsel's objection was promptly sustained; and (3) the comment did not play a decisive role in the determination of guilt because of the other evidence of guilt presented. Id.

In the case at bar, counsel's objection was promptly sustained and an instruction to disregard was given. Based upon the aforementioned facts, it was proper for the court to conclude that there was no reasonable probability that the result would have been different had counsel requested a mistrial. Therefore, counsel was not ineffective as to this point.

Likewise, in appellant's contention that counsel was ineffective by not raising the testimony of Officer White in the motion for a new trial, there was no evidence submitted that would overcome the inference that counsel made a reasoned decision. In Strickland v. Washington, the Supreme Court stated that "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). This presumption that the challenged action might have been considered sound trial strategy must be overcome by the defendant. Id. Additionally, no evidence was submitted that would imply prejudice from the omission of this statement as a ground for a new trial. Counsel was not ineffective as to this point.

In appellant's fourth point, he contends that because the jury was not instructed on the amended range of punishment he was denied due process and effective assistance of counsel. Appellant argues that § 1.160(2), RSMo 1986 mandates that the jury be instructed according to the range of punishment provided in the amended statute. At the time when appellant was informed of the allegations against him in March 1984, it was done under § 565.008.2, RSMo 1978, which provided the range of punishment to be not less than...