Vogel v. State
| Decision Date | 19 September 2000 |
| Parties | (Mo.App. W.D. 2000) . Joshua C. Vogel, Appellant, v. State of Missouri, Respondent. Case Number: WD57549 Missouri Court of Appeals Western District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Buchanan County, Hon. Patrick K. Robb
Counsel for Appellant: Andrew A. Schroeder
Counsel for Respondent: Adriane D. Crouse and Susan K. Glass
Opinion Summary:
Joshua C. Vogel appeals from the circuit court's order overruling, after an evidentiary hearing, his Rule 29.15 motion for post-conviction relief. He was convicted of two counts of assault in the first degree, two counts of armed criminal action, and one count of unlawful use of a weapon.
AFFIRMED.
Division Three holds:
In Points I - IV, the appellant claims that his trial counsel was ineffective in failing to submit to the jury: (1) whether he was not guilty of the crimes charged because the "shooter" was acting in self-defense or the defense of others; or (2) if it found that the "shooter" was not acting in self-defense or the defense of others, whether he was guilty of the lesser-included offense of second degree assault, rather than first degree assault, in that he was acting under the influence of sudden passion. Vogel maintained throughout the trial that he was not the shooter, rather his companion was the shooter. Based on this, Vogel's trial counsel chose to pursue solely a misidentification defense.
In Points III and IV, Vogel claims that his trial counsel was ineffective for refusing to "honor" his requests to pursue certain trial strategies, specifically self-defense and sudden passion. As to these claims, he first contends that a criminal defendant has an absolute right to make decisions regarding what defenses and mitigating circumstances are to be presented at trial, and that the court should equate it with a basic and fundamental right, such as the right of a criminal defendant to testify at trial, such that the refusal of trial counsel to allow a defendant to make those decisions would constitute, per se, ineffective assistance of counsel. However, according to the United States Supreme Court in Wainwright v. Sykes, what defenses to develop is a decision that belongs to the attorney. Thus, there is no per se ineffective assistance of counsel.
Vogel then contends that the refusal of his counsel to pursue either self-defense or sudden passion resulted in a total breakdown in communications, such that he received ineffective assistance of counsel. Both Vogel and his trial counsel testified at the motion hearing. The motion court was free to believe all or none of the testimony, and found the trial counsel's testimony more credible. The evidence supports the motion court's finding that Vogel, after fully discussing and consulting with trial counsel, agreed with him that, as a matter of trial strategy, it would be best to proceed solely on the defense of misidentification.
In Points I and II, Vogel claims he received ineffective assistance of counsel in that his trial counsel failed to present evidence and request the giving of certain jury instructions at trial, namely MAI-CR 3d 319.10, for the lesser-included offense of assault in the second degree, section 565.060.1, based on sudden passion and MAI-CR 3d 306.06 and 306.08, for the issues of self-defense and the defense of others. The record supports trial counsel's contention that there would have been numerous practical problems with presenting the case as argued for by Vogel, not the least of which was the undisputed physical evidence and Vogel's own testimony, such that the jury would not have found that Vogel acted in self-defense, in defense of others, or under sudden passion. Accordingly, trial counsel's decision not to submit the requested instructions was reasonable trial strategy and does not support a claim for ineffective assistance of counsel.
In Point V, Vogel claims that he received ineffective assistance of counsel in that his trial counsel refused to interview and call Brandon Wentworth as a witness at trial because Wentworth would have testified, if called, to the nature and extent of the injuries sustained by the appellant as a result of the bar fight with the victims and others which would have corroborated his claims of self-defense or defense of others or the lesser-included offense of second degree assault. We find that Vogel's trial counsel could not be convicted of being ineffective for failing to call Wentworth as his testimony would have only gone to support one of the alternative trial strategies properly rejected by counsel.
In Point VI, appellant claims that he received ineffective assistance of counsel because his trial counsel failed to request that the trial court address, inquire into, and rule on his pro se "Motion to Dismiss Attorney," which alleged that an irreconcilable conflict had arisen with his trial counsel such that he would be denied the effective assistance of counsel if he were forced to go to trial without substitute counsel. However, the motion court found that Vogel's motion was without merit and that if the Motion to Dismiss Attorney had been noticed up for a hearing, the court would have denied it. Thus, there was no reasonable likelihood that the outcome of the trial would have been any different, and Vogel is not entitled to post-conviction relief.
Joshua C. Vogel appeals from the circuit court's order overruling, after an evidentiary hearing, his Rule 29.151 motion for post-conviction relief. After a jury trial in the Circuit Court of Buchanan County, the appellant was convicted of two counts of assault in the first degree, section 565.050,2 two counts of armed criminal action, section 571.015, and one count of unlawful use of a weapon, section 571.030.1(3). As to his convictions for assault in the first degree on Counts I and II, the appellant was sentenced to fifteen years imprisonment on each count. As to his convictions for armed criminal action on Counts III and IV, he was sentenced to twenty years imprisonment on each count. As to his conviction for unlawful use of a weapon on Count V, he was sentenced to four years imprisonment. His sentences as to Counts I - IV were ordered to run consecutively, with his sentence as to Count V to run concurrently with Count I.
The appellant raises six points on appeal in which he claims that the motion court erred in overruling his Rule 29.15 motion for post-conviction relief because, contrary to the findings of fact and conclusions of law of the motion court, he received ineffective assistance of trial counsel.
We affirm.
On the evening of February 7, 1996, the appellant attended a party at the apartment of Mike Bleazard in St. Joseph. During the party, the appellant had a conversation with a woman about buying a gun from him and was observed putting something in the waistband of his pants. At some point, he left the party. After leaving the party, he drove Bleazard's truck to "Brew's," a tavern in St. Joseph. He was accompanied by a friend, Glen Hayward.
When Hayward and the appellant entered Brew's, the appellant saw Randy Griggs, who was dating a girl with whom Hayward had previously been involved. Hayward walked behind Griggs, put his hands on Griggs's shoulders, and said, "I've got brass knuckles," and "[m]y friend, Josh Vogel's got a gun." At some point, Griggs then left the tavern with Hayward and the appellant following. Once outside, Hayward began yelling and swearing at Griggs's girlfriend who was sitting in Griggs's car. Griggs got into his car and drove away. He later returned with his two brothers and a friend because he thought his uncle, Marion Hastings, who was still at Brew's, might be in danger.
When Griggs pulled into the parking lot, he saw several people gathered outside yelling, including the appellant, Hayward, Hastings, and Sam Losson. Griggs and his brothers exited the car and confronted Hayward, who told them, "My partner, Josh Vogel's got a gun," at which point the appellant pulled out a gun. Charlie Thomas, an acquaintance of Hastings, said that it was only a cap gun. Griggs's brothers ran back to their car with the appellant in pursuit. The appellant attempted to hit one of them in the back of the head with his fist. Griggs, while chasing the appellant, swung at him. The appellant hit him in the head with a gun, causing Griggs to fall to the ground. One of his brothers then hit the appellant with a jack handle. Both the appellant and Hayward retreated to Bleazard's truck, with Losson and Thomas in pursuit.
Having reached the truck, the appellant yelled, "I'll show you a cap gun or a fucking cap gun." The appellant then shot Losson in the stomach. As Thomas attempted to "walk" away from the area, the appellant shot him in the back. After the shootings, the appellant and Hayward got into the truck and drove off. The next day, the appellant, his aunt, and Bleazard all left in Bleazard's truck for Las Vegas, Nevada. On the way there, the appellant told Bleazard that he had fired a gun the night before at Brew's. When they arrived in Las Vegas, Bleazard cleaned out his truck and found "many spent casings and a few live rounds and .22 calibers." He testified that he was not responsible for the ammunition and spent casings being in his truck.
The appellant flew back to Missouri after spending a week in Las Vegas. Bleazard was under the impression that he went back to turn himself in to the police. However, approximately two weeks later, the appellant returned to Las Vegas. Upon his return, he told Bleazard that on the same evening as the shooting at the bar, he and Hayward had driven by Griggs's house, and that Hayward had fired a gun into the house.
The appellant was arrested on June 6, 1996, in Las Vegas. He...
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