White v. State, 37070

• Decision Date: 18 October 1977
• Docket Number: No. 37070,37070
• Citation: 558 S.W.2d 372
• Parties: Frederick C. WHITE, Movant, v. STATE of Missouri, Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 372

558 S.W.2d 372

Frederick C. WHITE, Movant, v. STATE of Missouri, Respondent.

No. 37070.

Missouri Court of Appeals, St. Louis District, Division One.

Oct. 18, 1977.

David A. Lang, Clayton, Forriss D. Elliott, St. Louis, for movant.

Paul Robert Otto, Asst. Atty. Gen., John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for respondent.

SMITH, Judge.

Movant appeals from an order denying, without evidentiary hearing, his Rule 27.26 motion to vacate and set aside sentence. The underlying conviction was for assault with intent to maim with malice arising from the physical and sexual torture of a female victim.

Movant's motion stated his grounds for relief as follows:

"(a) Incompetency of counsel at trial.

"(b) State's failure to disclose favorable evidence.

"(c) Discovery of new evidence."

The facts supporting these grounds were set out as follows:

" '9. (a) Counsel who conducted the trial failed to perform any investigation prior to trial, failed to adequately voir dire the prospective jurors, failed to file any pretrial motions, and and (sic) failed to file a timely motion for new trial. Supporting evidence: partial transcript of trials in State v. White, # 72-9411, and State v. Weaver, # 72-1660. Testimony of Attorney Wilson Gray; and business records of Wilson Gray relating to his representation of Frederick White. The address of is 508 North Grand, St. Louis, Missouri.

'(b) The Assistant Circuit Attorney, William Frain, was aware of the existence of a medical condition of the complaining witness at the time of the alleged acts constituting the offense occurred, that cast serious doubts on the veracity of her testimony, but he failed to disclose said medical condition to my trial attorney, supportin (sic) evidence: partial transcript of companion case. State v. Weaver, # 72-1660, and partial transcript of State v. White, # 72-9411 and relevant files of the circuit attorney's office. The business address of Wm. Frain is Ofc. of the Cir. Atty., Municipal Courts Building, St. Louis, Missouri.

'(c) The newly discovered evidence is the existence of a medical condition of the complaining witness at the time the alleged acts constituting the offense occurred, that casts serious doubts on the veracity of her testimony. Supporting evidence: same as in 9(b) above.' "

The trial court, in an opinion, dealt with each of these grounds and found no facts alleged sufficient to warrant an evidentiary hearing. In order for a 27.26 movant to be entitled to an evidentiary hearing, he must plead facts, not conclusions, which if true, would entitle him to relief and must show that those factual allegations are not refuted by the trial record. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974) (1).

Movant's petition here fails to meet that test. An allegation of failure to investigate is insufficient in the absence of factual allegations of what possible defenses might have been discovered through further investigation or how such investigation might have been of benefit to defendant. Smith v. State, supra, (2). In what way the voir dire was inadequate is sheer speculation. A review of the transcript of trial does not indicate any apparent inadequacies. The same is true of the allegation concerning "pretrial motions." Just what motions could or should have been filed is not apparent on the record. No confession or statement of defendant was introduced into evidence, the victim's identification was based upon her prior acquaintanceship with defendant, and there is no indication that evidence introduced was obtained through any improper search which defendant could challenge. We will deal with the allegation concerning the motion for new trial later. The general statement concerning a "medical condition" of the prosecuting witness is so vague as to be meaningless, and does not furnish a basis for relief under 27.26.

Movant has in his motion referred to a partial transcript in State v. Weaver. That trial was of an alleged co-participant and resulted in an acquittal. Movant contends that the material in that transcript demonstrates that movant's counsel was ineffective. None of this material is mentioned in movant's motion and we do not believe it to be the trial court's responsibility to cull through that transcript to find some possible supporting grounds for movant's conclusory statements. The Weaver trial occurred after movant's, so it cannot be presumed that movant...