Westmoreland v. State, 61213

Decision Date11 February 1980
Docket NumberNo. 61213,61213
PartiesWalter Lee WESTMORELAND, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Supreme Court

Paul E. Corning, Jr., Clayton, for appellant.

John Ashcroft, Atty. Gen., Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Defendant, movant-appellant here, was convicted of second degree murder and sentenced to 18 years imprisonment in March, 1975. Following affirmance in the criminal proceeding, State v. Westmoreland, 541 S.W.2d 769 (Mo.App.1976), defendant filed two pro se motions under Rule 27.26 in 1977, which were denied that year by the hearing court as neither alleged facts entitling defendant to post-conviction relief. 1 His appeal, taken to the Court of Appeals, Eastern District, was transferred here after opinion affirming the hearing court's denial of the motions. We too affirm and incorporate without quotation marks portions of the Court of Appeals' (Gunn, J.) well reasoned opinion.

At a time following denial of Westmoreland's 27.26 motions but during the pendency of his appeal, this Court in Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978), announced two procedural changes governing post-conviction proceedings. (1) That appointment of trial counsel for indigent movants is required in all 27.26 cases, and (2) that trial courts must enter findings of fact and conclusions of law in all such proceedings. 2 However, we expressly held the effect of Fields to be prospective. Id. See also Baker v. State, 584 S.W.2d 65, 66 (Mo. banc 1979). Accordingly, Westmoreland's 27.26 motions, considered and denied prior to Fields, were governed by the procedural standards declared in Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975). For the reasons following we find the trial court's judgment was not clearly erroneous in light of the then applicable rules of procedure.

State v. Westmoreland, supra, details the evidence leading to movant's conviction. Four eyewitnesses saw movant shoot and kill Chester Dent. Westmoreland claimed self-defense. In the first of his 27.26 motions movant alleged ineffective assistance of counsel on the ground that his "counsel had failed to interview and investigate potential defense witnesses . . . depriving movant's right to have witnesses at the time of the trial . . ." More specifically, movant alleged that three of the four eyewitnesses to the killing wished to recant their testimony after trial; that the victim had a police record of assaults with a weapon; that two of the eyewitnesses (one of whom was the victim's wife) were engaged in a homosexual relationship at the time of the trial; that one of the eyewitnesses had forewarned movant of the victim's vicious propensities; that two of the witnesses had conspired to collaborate on supposedly false testimony; that one of the witnesses, who testified that she had placed a knife in the victim's hand after his death to aid movant's defense of self-defense, had removed a pistol from the victim's pocket at the same time.

The second 27.26 motion alleged ineffective assistance of counsel by reason of his counsel's unawareness of the victim's wife's homosexual activities with another eyewitness to the killing; that pretrial procedures requiring movant to reveal the identity of his witnesses deprived him of his liberty and the preparation of his defense; that while 13 trial errors had been included in the motion for new trial, only two were urged on appeal.

The trial court denied each motion without hearing because neither stated facts entitling movant to relief. Movant's appeal contends the trial court erred: (1) in failing to make specific findings of fact or conclusions of law; (2) in failing to hold an evidentiary hearing for the reason that the two motions did state a basis for relief; (3) in depriving movant assistance of counsel to amend his motions. When determining whether the motion states a basis for relief the court reviews the "files and records of the case," rule 27.26(e), Giles v. State, 562 S.W.2d 106, 110 (Mo.App.1977), and because it was clear from the record neither motion presented issues entitling movant to relief, no evidentiary hearing was required. Smith v. State, 513 S.W.2d 407, 411, cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975). The bulk of the first motion concerned newly discovered evidence which movant argues would lead to more salutary result for him. However, a proceeding under Rule 27.26 is not the proper vehicle for relief on the basis of newly discovered evidence. Hatfield v. State, 529 S.W.2d 180, 181 (Mo.App.1975). Beishir v. State, 480 S.W.2d 883, 885 (Mo.1972).

The balance of movant's first 27.26 motion related to the fact that a witness had made movant aware of the victim's violent nature prior to the fatal attack and this he urges lends support to his claim of self-defense. But this contention states no basis for relief because movant's personal knowledge of the victim's propensities would not be admissible in any event.

It has long been the rule in this State that where the defense is self-defense evidence is competent to prove that the deceased bore the reputation of being of a violent and turbulent disposition or character, but that such must be proved by testimony concerning his general reputation and not by evidence of specific acts of violence having no connection with defendant.

State v. Duncan, 467 S.W.2d 866, 867 (Mo.1971). Accord State v. Maggitt, 517 S.W.2d 105, 107 (Mo. banc 1974).

The second 27.26 motion asserts that Westmoreland's confession was obtained as a result of coercion, but the record of his criminal trial is barren of any confession, hence the contention is meritless. Movant again makes reference to an alleged homosexual relationship between two of the State's witnesses and defense counsel's failure to investigate the libidinous conduct. The record reveals that allegations of such relationship were based on raw hearsay and had been denied by the accused participants; that movant's counsel and the prosecutor had investigated the rumor and were unable to obtain any competent evidence of its truth.

Movant's second motion also complains that pretrial procedures requiring him to disclose the identity of his witnesses and the theory of defense result in deprivation of certain constitutional rights. 3 Again, movant's complaint is without merit. The pretrial discovery procedures followed by the State in this case are authorized by Rule 25.34. Movant has failed to allege facts demonstrating he was in any way prejudiced by the application of the Rule; he is, therefore, without standing to challenge its constitutionality. State v. Toliver, 544 S.W.2d 565, 569 (Mo....

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16 cases
  • Byrd v. Armontrout
    • United States
    • U.S. District Court — Eastern District of Missouri
    • 9 de junho de 1988
    ...pursuant to a Rule 27.26 motion (prior to the repeal of Rule 27.26). State v. Mims, 674 S.W.2d 536, 538 (Mo. banc 1984); Westmoreland v. State, 594 S.W.2d 596, 598 (Mo. banc 1980); Turnbough v. State, 574 S.W.2d 400, 404 (Mo. banc 1978); Beishir v. State, 480 S.W.2d 883 (Mo.1972); Hatfield ......
  • Wilson v. State
    • United States
    • United States State Supreme Court of Missouri
    • 23 de julho de 1991
    ...vehicle for the examination of claims of newly discovered evidence. See State v. Mims, 674 S.W.2d 536, 539 (Mo. banc 1984); Westmoreland v. State, 594 S.W.2d 596, 598 (Mo. banc 1980); Beishir v. State, 480 S.W.2d 883, 885 (Mo.1972). The sole purpose of this post-conviction proceeding is to ......
  • State v. Mims, 65532
    • United States
    • United States State Supreme Court of Missouri
    • 17 de julho de 1984
    ...27.26, reasoning that such a proceeding "is not the proper vehicle for relief on the basis of newly discovered evidence." Westmoreland v. State, 594 S.W.2d 596, 598 (Mo. banc Anyhow, in this case it is unnecessary to determine whether a defendant may successfully challenge his conviction on......
  • Gilmore v. State
    • United States
    • Court of Appeal of Missouri (US)
    • 13 de outubro de 1987
    ...of appellate counsel. Claims of ineffective assistance of appellate counsel are not cognizable in a Rule 27.26 proceeding. Westmoreland v. State, 594 S.W.2d 596, 598 (Mo. banc 1980); Roulette v. State, 504 S.W.2d 331, 332 The allegations contained in number 1(f) fail for other reasons, as w......
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