Williams v. State
| Decision Date | 07 December 1999 |
| Citation | 8 S.W.3d 217 |
| Parties | (Mo.App. E.D. 1999) . Cory Williams, Appellant, v. State of Missouri, Respondent. Case Number: ED75379 Missouri Court of Appeals Eastern District Handdown Date: |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of St. Louis County, Hon. Daniel J. O'Toole
Counsel for Appellant: Raymund J. Capelovitch
Counsel for Respondent: Anne E. Hawley
Opinion Summary: Cory Williams appeals the denial of his motion for post-conviction relief, following his conviction of second degree murder, first degree robbery, first degree burglary, second degree burglary, stealing a motor vehicle, receiving stolen property, and two counts of resisting arrest and armed criminal action.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
Division Three holds: (1) Plain error review is not available in post-conviction relief cases. (2) The motion court erred in denying Williams' motion for post-conviction relief without an evidentiary hearing to the extent it denied Williams an opportunity to prove his trial counsel was ineffective for failing to call a passenger in a van Williams was accused of stealing, to testify that he was not the thief. (3) The motion court did not err in denying Williams' motion for post-conviction relief insofar as it pertained to his claim of ineffective assistance of counsel for failure to call his mother, a purported alibi witness, to testify at trial, as her testimony would not have provided a viable defense.
Opinion Vote: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. Teitelman, P.J., and Mooney, J., concur.
A jury convicted the defendant, Cory Williams, of one count each of second degree murder, first degree robbery, first degree burglary, second degree burglary, stealing a motor vehicle, receiving stolen property, and two counts each of resisting arrest and armed criminal action. Following an unsuccessful appeal to this court, see State v. Williams, 948 S.W.2d 429 (Mo. App. 1997), defendant filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15. In that motion, defendant claimed he was denied effective assistance of trial counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, section 18(a) of the Missouri Constitution. The motion court denied relief; this appeal followed. We affirm in part and reverse and remand in part.
The underlying facts are set forth in the opinion denying defendant's direct appeal. We reiterate the following facts which are relevant to this appeal. Sometime between midnight and 1:00 a.m. on November 16, 1994, a man approached a parked minivan in which the driver, Willie Mae Goosby, and her passenger, Lenora Byrd, were sitting. This man pointed a gun at the two, forced them from the van, then drove away in the van. Ms. Goosby identified defendant as the thief from a lineup. For this incident, defendant was charged with the crime of receiving stolen property, section 570.080 RSMo (1994).1 At trial for this and several other offenses, Ms. Goosby again identified defendant as the man who stole her van. The State acknowledges this testimony was the principal evidence adduced to support this charge.2
In his first point of error, defendant requests plain error review of a claim of ineffective assistance of counsel not made to the motion court. The law is very clear that Clemmons v. State, 795 S.W.2d 414, 418 (Mo. App. 1990), cert. denied, 500 U.S. 907 (1991). See also State v. Clay, 975 S.W.2d 121, 141 (Mo. banc 1998), cert. denied, 119 S. Ct. 834 (1999) (). Accordingly, point one is denied.
In his second point, defendant argues the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because his trial counsel was ineffective for failing to call Lenora Byrd, Ms. Goosby's passenger at the time of the theft, to testify at trial. Ms. Byrd purportedly would have testified defendant was not the man who stole Ms. Goosby's van. Defendant claims such testimony would have rebutted an essential element of the crime of receiving stolen property, that is, knowledge the property is stolen. We will uphold the trial court's ruling unless it was clearly erroneous. Rule 29.15(k) (1999).
A successful claim of ineffective assistance of counsel entails a two-part showing. First, the defendant must demonstrate counsel's performance was deficient, that is, counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). This requires a showing that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances. Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979) (citation omitted). Second, the defendant must show counsel's deficient performance prejudiced his or her defense. Strickland, 466 U.S. at 687; Seales, 580 S.W.2d at 735-737. This requires the defendant to show there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. Counsel's performance will not be deemed ineffective under the Sixth Amendment unless both prongs of the Strickland test have been established. Id. at 687.
Where the alleged ineffectiveness of counsel concerns the failure to present testimony of a witness, Missouri courts specifically require the defendant to show: (1) the witness could have been located through reasonable investigation; (2) the witness would have testified if called; and (3) the testimony would have provided a viable defense. State v. Vinson, 800 S.W.2d 444, 448-49 (Mo. banc 1990). The inability of a defendant to make even one of these showings reveals that an attempted examination of the witness would not have aided the defense. Where this is the case, counsel's decision not to call that witness is neither incompetent nor prejudicial.
The State concedes defendant is entitled to an evidentiary hearing on his claim that trial counsel was ineffective in failing to present the testimony of Ms. Byrd. It is alleged that Ms. Byrd's testimony as to the thief's...
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