West v. State

Decision Date15 January 2008
Docket NumberNo. ED 89573.,ED 89573.
Citation244 S.W.3d 198
PartiesChristopher Q. WEST, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals
244 S.W.3d 198
Christopher Q. WEST, Appellant,
v.
STATE of Missouri, Respondent.
No. ED 89573.
Missouri Court of Appeals, Eastern District, Division Two.
January 15, 2008.

[244 S.W.3d 199]

Lisa M. Stroup, St. Louis, MO, for appellant.

Shaun Mackelprang, Jefferson City, MO, for respondent.

NANNETTE A. BAKER, Judge.


Introduction

Christopher Q. West ("Movant") appeals from a judgment in the St. Louis County Circuit Court denying his Rule 29.151 motion for post-conviction relief without an evidentiary hearing. In his four points on appeal, Movant claims that the motion court erred in denying his post-conviction motion because his trial counsel was ineffective for failing to object to various statements and comments made by the prosecutor. We find no error and affirm.

Factual and Procedural. Background

In the light most favorable to the verdict, the facts adduced at trial reveal that on August 18, 2003, Tom Nicholson ("Nicholson") and Tom Cooper ("Cooper") drove from Jefferson County to St. Louis to buy a pound of marijuana. Nicholson and Cooper, who had $800 with them, were introduced to Movant and another man named Marcus Fulton ("Fulton"). Movant and Fulton were supposed to furnish the pound of marijuana in exchange for the $800. Either Movant or Fulton asked to count the money before the exchange. When Nicholson revealed the money, Fulton pulled out a gun and demanded that Nicholson hand, over the money. Nicholson refused to hand over the money and Fulton's gun clicked.2 Nicholson threw the money into the car and Fulton fired his gun, missing Nicholson. At this point, Movant ran around the car to the passenger side and pointed a gun at Cooper. A struggle ensued between Cooper and Movant, during which Movant fired his gun at least four times. Movant and Fulton fled the scene. Cooper suffered multiple gunshot wounds.

A police investigation led to the identification, arrest and prosecution of Movant and Fulton. A jury found Movant guilty of attempted robbery in the first degree, assault in the first degree, and armed criminal action and the court sentenced Movant to concurrent terms of five years' imprisonment for attempted robbery, twelve years' imprisonment for assault and the years' imprisonment for armed criminal action. We affirmed the conviction in State v. West, 186 S.W.3d 488 (Mo.App. E.D.2006).

Movant filed a pro se motion for post-conviction relief and his appointed counsel filed an amended motion arguing, inter alia, that Movant received ineffective assistance of counsel because trial counsel failed to object to several statements and comments made by the prosecutor. The motion court denied Movant's motion without an evidentiary hearing and issued findings of fact and conclusions of law. Movant appealed.

Discussion

Our review of the motion court's denial of post-conviction relief is limited to a determination of whether the motion court clearly erred in finding that counsel was not ineffective. Helmig v. State, 42

244 S.W.3d 200

S.W.3d 658, 665-66 (Mo.App. E.D.2001). We will find that the motion court clearly erred if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc.2000).

To prove ineffective assistance of counsel, a movant must demonstrate that: (1) trial counsel's performance failed to conform to the degree of, skill, care and diligence of a reasonably competent attorney; and (2) he was prejudiced by trial counsel's poor performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002). To satisfy the first prong of the Strickland test, a movant must overcome a presumption that the challenged action constituted sound trial strategy. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998). The second Strickland prong necessitates that a movant "show a reasonable probability that, but for trial counsel's errors, the result of the proceeding would have been different." Id. The motion court is not obligated to hold an evidentiary hearing on a motion for post-conviction relief unless: (1) Movant alleged facts, rather than conclusions, warranting relief; (2) the facts alleged raise matters not conclusively refuted by the files and record; and (3) the matters complained of resulted in prejudice to Movant. Haddock v. State, 75 S.W.3d 872, 876 (Mo.App. W.D.2002). See also, Morales v. State, 104 S.W.3d 432, 434 (Mo.App. E.D.2003). Movant must establish each prong of this three prong test. Shackleford v. State, 51 S.W.3d 125, 128 (Mo.App. W.D.2001).

Movant claims four points on appeal. In all of his points on appeal, Movant contends that the motion court erred in denying his motion without an evidentiary hearing because his trial counsel was ineffective for failing to object to comments and statements made by the prosecutor. Failure to object to evidence, is not sufficient in and of itself to constitute ineffective assistance of counsel. Rotellini v. State, 77 S.W.3d 632, 637 (Mo.App.E.D. 2002). The movant must show that: (1) the objection would have been meritorious; and (2) the failure to object resulted in a substantial deprivation of movant's right to a fair trial. Id. The movant also bears the burden of, proving the failure to object was not strategic and was prejudicial. Rickey v. State, 52 S.W.3d 591, 596 (Mo.App. W.D. 2001).

Voir Dire Comments

In his first point, Movant argues that the motion court erred in denying his motion without an evidentiary hearing because his trial counsel was ineffective for failing to object to a comment made by the prosecutor regarding the Movant's right not to testify. We disagree. During voir dire, the prosecutor asked the prospective jurors, "along with the presumption of innocence is coming the defendant's right not to testify. It's the defendant's choice. Everybody understand that?" This comment, Movant contends, improperly informed the jury that if Movant does not testify, it is because he chose not to do so and caused the jury to speculate about why he would choose not testify at his own trial.

The State claims that the comment made by the prosecutor is akin to those made by the prosecutor in State v. Barnum, 14 S.W.3d 587 (Mo. banc 2000). In Barnum, the prosecutor stated during voir dire that:

The second term that we talk about probably endlessly and to the point that you're all tired of it is the burden of proof. And that's the idea that it's up to me to prove to you that the Defendant did what we charged. It's not up to the

244 S.W.3d 201

Defendant to prove anything. The Defendant doesn't have to present any evidence, doesn't have to testify, and that's our legal system. That's the way it works in our legal system.

Id. at 592. The Missouri Supreme Court held that the prosecutor's comments:

Did not pertain to Appellant's failure to testify but were merely restatements of the law and general comments concerning the rights of any defendant in a criminal trial. Considering the record as a whole, manifest injustice did not result due to the nature of the remarks and the stage of the trial at which they were made.

Id.

The State argues that the comment made in the present case is So similar to the one in Barnum that we should treat it the same way the Supreme Court treated the comments in Barnum, We agree. The...

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