Watkins v. State

• Decision Date: 15 February 1990
• Docket Number: No. 16307,16307
• Citation: 785 S.W.2d 767
• Parties: Leroy J. WATKINS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 767

785 S.W.2d 767

Leroy J. WATKINS, Appellant, v. STATE of Missouri, Respondent.

No. 16307.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 15, 1990.

Motion for Rehearing or Transfer Denied

March 9, 1990.

Application to Transfer Denied April 17, 1990.

Larry Maples, Asst. Public Defender, Joplin, for appellant.

William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Presiding Judge.

Leroy J. Watkins ("movant") appeals from a judgment denying--after an evidentiary hearing--his second amended motion under Rule 27.26 ¹ to vacate his conviction of assault in the first degree, § 565.050, RSMo Cum.Supp.1984, for which he was sentenced to 20 years' imprisonment. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Watkins, 724 S.W.2d 674 (Mo.App.1987).

The first four of movant's eight points relied on pertain to the prosecutor's cross-examination of movant at the jury trial.

Movant presented himself as a witness in his defense. During direct examination by his lawyer, henceforth referred to as "defense counsel," movant testified he had been convicted of "felony stealing" in Jasper County in October, 1980, and had been convicted of the same crime in Newton County in February, 1981. Then, this:

"Q And you've had no other brushes with the law since.

A Never."

At the outset of movant's cross-examination by the prosecutor this dialogue occurred:

"Q ... you told [defense counsel] a minute ago that the two convictions were the only brushes with the law that you'd ever had, isn't that correct?

A I think felonies, yes.

Q You used the word, I believe, that those were the only brushes you'd had with the law, or he did, isn't that right?

A (no response)

Q In fact, you've had many other brushes with the law.

A I've had a few, yeah, but....

Q Isn't it true that you were arrested in a brush with the law on March 21st of 1976, for resisting arrest, assault and public drunkedness [sic]?"

At that point defense counsel objected on the grounds of "improper impeachment," arguing the "only things that can come into play are past convictions." The prosecutor responded that movant's testimony on direct examination had "opened up his entire arrest record, not just his conviction record." The trial court overruled defense counsel's objection. Cross-examination continued:

"Q ... Isn't it true ... that on March 21, 1976, you were arrested by the Joplin Police Department for resisting arrest, assault and public drunkedness [sic]?

....

A I was arrested, yeah, but it wasn't my fault.

Q Thank you. Isn't it true, Mr. Watkins, that on April 19, 1979, you were arrested by the Joplin Police Department for fighting in public? Isn't that true?"

Defense counsel registered the "[s]ame objection." It was overruled. This colloquy ensued:

"Q (by [prosecutor] ) Do you want to see your jail card, Mr. Watkins?

A I don't remember, sir. I've been hit in the head too. I've got brain damage and it's hard--

Q You've got brain damage?

A Right. From when the cops beat me in the head that time."

Movant's first point avers:

"The hearing court clearly erred in denying [movant's] 27.26 motion because the trial court denied [movant] his right to trial by a fair and impartial jury ... and due process of law ... and equal protection of the law ... in that the trial court, over [movant's] objection, allowed [movant] to be impeached at trial with his arrests, in violation of the established rule against such impeachment, and in violation of [movant's] right to be tried solely for the offense charged, and to [movant's] prejudice because the arrests were for assault, resisting arrest, public drunkenness, and fighting in public, and [movant] was being tried on assault."

Pertinent to the above point the hearing court found:

"As to ... Movant's contention ... that the trial court should have sustained his trial counsel's objection when ... Movant was impeached with prior arrests it is clear that this matter should have been raised on the direct appeal but from the transcript it is clear that any attempt to rely upon this grounds would have failed in that ... Movant's character was put at issue by ... Movant and that he was properly impeached by the use of his prior arrests."

Our review is limited to a determination of whether the findings, conclusions, and judgment of the hearing court are clearly erroneous. Rule 27.26(j); Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984).

Trial errors are not cognizable in a proceeding under Rule 27.26. State v. Macon, 403 S.W.2d 630, 631 (Mo.1966); Fullerton v. State, 750 S.W.2d 484, 487 (Mo.App.1988); Hill v. State, 641 S.W.2d 194, 195 (Mo.App.1982). A proceeding under Rule 27.26 is not a substitute for direct appeal and does not afford a second appeal. Rule 27.26(b)(3); O'Neal v. State, 486 S.W.2d 206, 207-08 (Mo.1972); Choate v. State, 659 S.W.2d 354, 355 (Mo.App.1983). Trial errors cannot be made a basis for relief under Rule 27.26 by simply alleging as a conclusion that they resulted in an unfair or impartial trial, or that they affected constitutional rights. O'Neal, 486 S.W.2d at 207-08.

An allegation that a trial judge erred in receiving evidence is simply an allegation of court error during the course of the trial which is not reviewable under Rule 27.26. Lane v. State, 611 S.W.2d 44, 46 (Mo.App.1981); Achter v. State, 545 S.W.2d 86, 88 (Mo.App.1976).

In the instant case the motion for new trial filed by defense counsel made no mention of the prosecutor's questioning of movant regarding his arrests. The brief filed on movant's behalf by the lawyer who represented him in the direct appeal (henceforth referred to as "appellate counsel") likewise ignored the subject. It is thus clear that the issue was not raised on direct appeal.

An issue that could have been raised on direct appeal, even if it be a constitutional claim, cannot be raised in a proceeding under Rule 27.26 unless fundamental fairness so requires and only in rare and exceptional circumstances. Drake v. State, 753 S.W.2d 65, 67 (Mo.App.1988); Paynes v. State, 752 S.W.2d 331, 333 (Mo.App.1988). No such circumstances exist here, as explained in the next four paragraphs.

In State v. Ball, 736 S.W.2d 551 (Mo.App.1987), the accused, on direct examination by his lawyer, was asked about his convictions. The accused stated he had been arrested twice. His lawyer then asked, "Other than those two convictions have you had any other arrests?" The accused answered no. On cross-examination the prosecutor asked the accused about a past arrest for second degree burglary. On appeal the accused maintained the trial court committed plain error in failing to declare a mistrial when the prosecutor made that inquiry. Rejecting the point the Eastern District of this Court stated that generally, evidence of a prior arrest cannot be used to impeach the credibility of an accused. This rule does not apply, however, if the accused has "opened up" the issue of prior arrests. The Eastern District held that the accused, by denying he had any arrests other than the two which resulted in convictions, had opened up the issue of prior arrests.

In State v. Dunlap, 706 S.W.2d 272 (Mo.App.1986), the accused, on direct examination by his lawyer, was asked, "Do you have a criminal record, Tony?" The accused responded, "No, I don't." Thereafter the prosecutor not only cross-examined the accused as to his prior arrests, but also introduced rebuttal evidence of the accused's prior arrests for assault in the first degree and unlawful use of a weapon. On appeal the accused contended the trial court erred in receiving the rebuttal evidence. The Eastern District of this Court disagreed, holding that when an accused introduces the issue of his criminal record and upon cross-examination denies previous arrests, the State may produce rebuttal evidence to impeach the accused's denial. Id. at 274.

In State v. Payton, 559 S.W.2d 551 (Mo.App.1977), the accused, on direct examination by his lawyer, testified that except for an arrest for a misdemeanor marijuana charge which resulted in probation he had never been in "any other trouble with the law." On cross-examination the prosecutor asked the accused whether he had been arrested for burglary in the second degree and stealing. The accused's request for a mistrial was denied. On appeal the Eastern District of this Court held that an accused may be cross-examined regarding any subject matter concerning which he testifies on direct examination. Consequently, it was proper for the prosecutor to cross-examine the accused regarding prior arrests. Id. at 554.

In the instant case, in response to defense counsel's question about whether he had "other brushes with the law" since February, 1981, movant replied, "Never." The prosecutor subsequently asked movant on cross-examination whether he had testified that the two convictions revealed on direct examination were the only brushes with the law he had ever had. Movant answered, "I think felonies, yes." The prosecutor then asked movant whether in fact he had had many other brushes with the law. Movant acknowledged he had "had a few." The hearing court, as we comprehend its findings, ruled that the above testimony opened up the subject of movant's prior arrests. Applying Ball, Dunlap and Payton, we hold that this finding by the hearing court is not clearly erroneous.

The hearing court correctly held that movant's complaint regarding the prosecutor's questions about movant's arrests was not cognizable in the 27.26 proceeding, as it should have been raised on direct appeal. The hearing court, based on its finding that movant's testimony had opened up his arrest history, also correctly ruled that even had the point been asserted on direct appeal it would have been futile. Movant's first point is denied.

Movant's second point avers defense counsel rendered ineffective assistance in failing to...