Wolfe v. State

• Decision Date: 02 March 1981
• Docket Number: No. WD,WD
• Parties: Danny Ray WOLFE, Appellant, v. STATE of Missouri, Respondent. 31209.
• Court: Missouri Court of Appeals

Page 892

613 S.W.2d 892

Danny Ray WOLFE, Appellant, v. STATE of Missouri, Respondent.

No. WD 31209.

Missouri Court of Appeals, Western District.

March 2, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 30, 1981.

Application to Transfer Denied May 11, 1981.

Ralph W. Hicks, St. Joseph, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

MANFORD, Presiding Judge.

This is an appeal from a judgment denying post-conviction relief pursuant to a Rule 27.26 motion. The judgment is affirmed.

Appellant was convicted for burglary, second degree, and stealing. He was sentenced to concurrent sentences of ten and five years. The judgment was affirmed, see State v. Wolfe, 570 S.W.2d 694 (Mo.App.1978). Appellant filed a pro se 27.26 motion, which was amended after appointment of counsel. An evidentiary hearing was held following which the trial court entered findings of fact and conclusions of law. The rule in Fields v. State, 572 S.W.2d 477 (Mo.banc 1978) has been satisfied.

Appellant presents five points on appeal, all of which allege the trial court erred in not finding that he (appellant) was denied effective assistance of counsel for (1) failure of trial counsel to object to certain evidence, to wit, a box of pills, allegedly obtained by an illegal search and seizure; (2) failure of trial counsel to object to certain evidence, to wit, hair samples taken from appellant against his will in violation of his constitutional protection against self- incrimination; (3) failure of trial counsel to object to certain evidence, to wit, a pillow-case containing a hair sample of appellant, because said evidence had not been disclosed during pretrial discovery; (4) failure of trial counsel to object to certain testimony of a state witness and (5) failure of trial counsel to suppress certain physical evidence during trial.

Points (2), (4) and (5) are taken up first because each is summarily disposed of upon the same basis even though this court, in addition thereto, references an ex gratia consideration of each point.

Point (2) above was not advanced as a claim either in appellant's pro se motion or his amended motion as required by Rule 27.26(c). Appellant premises his post-conviction relief upon ineffective assistance of counsel and only those grounds presented in a 27.26 motion and determined by the trial court are reviewable, see Myrick v. State, 507 S.W.2d 42 (Mo.App.1974); Jackson v. State, 537 S.W.2d 211 (Mo.App.1976) and Coleman v. State, 542 S.W.2d 53 (Mo.App.1976). Such failure by appellant suffices to rule the point against appellant. This court, however, has reviewed the matter ex gratia. Appellant contends that the securing of a hair sample from his head, while incarcerated, violated his constitutional safeguard against self-incrimination. Appellant also contends that the securing of these hair samples was the product of an illegal arrest, illegal search and illegal seizure. There is no evidence to support appellant's allegation of an illegal arrest. In fact, this challenge was made and found to be without merit, see State v. Heitman, 589 S.W.2d 249 (Mo.banc 1979). Heitman was the appeal from the judgment of conviction of appellant's companions. Appellant's claim that his constitutional protection against self-incrimination was violated in securing the hair samples is equally found to be without merit. The securing of the hair samples (even without a warrant and against the will of an accused in custody) has been held to be only a slight intrusion and does not violate the Fourth Amendment of the Constitution of the United States, see U.S. v. D'Amico, 408 F.2d 331 (2nd Cir. 1969) and Grimes v. U.S., 405 F.2d 477 (5th Cir. 1968). The securing of the hair samples did not violate constitutional due process. It does not follow, as appellant argues, that the introduction of the hair samples thus violated his Fifth Amendment protection against self-incrimination.

Appellant further alleges that his trial counsel should have objected to such evidence, and that his counsel's failure to do so amounted to ineffective assistance of counsel. Counsel is not to be held ineffective for failing to make a nonmeritorious objection, see Brown v. State, 589 S.W.2d 368 (Mo.App.1979) and Tollison v. State, 556 S.W.2d 455 (Mo.App.1977). The most recent standard by which effectiveness of counsel is to be determined is that prescribed in Seales v. State, 580 S.W.2d 733 (Mo.banc 1979). Counsel's failure to object to the introduction of the hair samples did not fail to meet the standard in Seales, supra. Point (2) is ruled against appellant.

Point (4) falls to the same fate as point (2) above in that appellant did not advance his claim in either his pro se or amended motion as required by Rule 27.26(c). See also Myrick, Jackson and Coleman, supra. The review of this point ex gratia reveals that the issue was raised and ruled upon in the direct appeal of this case, by noting the objection was not broad enough to raise the issue, see State v. Wolfe, supra.

Rule 27.26, even under the charge of ineffective assistance of counsel, is not available for a second review of alleged trial errors, see Jones v. State, 604 S.W.2d 607 (Mo.App.1980) and Gant v. State, 577 S.W.2d 142 (Mo.App.1979).

Appellant, concerning this alleged error, claims that his counsel should have objected to the testimony of two police officers because their testimony included their observation of appellant walking across the backyard of the residence where he was arrested. The police report, prepared by these same officers and provided appellant prior to trial, did not include this information. Appellant now argues that since his counsel failed to object to the officer's testimony on this point, counsel was ineffective. This allegation has no merit. Further, the allegation as charged in this 27.26 proceeding contains critical misstatements of facts. Appellant charges that the officers testified they changed the report. The record fails to support this allegation. In fact, one officer directly stated that no modification of the report occurred. In addition, appellant claims in his brief that the officers' observation of appellant in the backyard was "a new revelation by the officers". Appellant argues that this prevented him from having proper opportunity to prepare a defense. The record simply fails to support appellant's contention, and in fact, one of the officers at the pretrial suppression hearing testified to observing appellant walking across the yard. The record further reveals that during the trial, appellant's counsel attempted to impeach the testimony of the officers by cross-examination. It is evident from the record that impeachment by cross-examination was trial strategy and was, in fact, dutifully performed by trial counsel. The performance of counsel in line with acceptable and recognized trial strategy methods certainly does not violate the standard for counsel prescribed in Seales. Point (4) is ruled against appellant as being without any merit.

Point (5) contains the same flaw as did points (2) and (4) in that appellant did not advance his claim in either his pro se or amended motion as required by Rule 27.26(c), see Myrick, Jackson and Coleman, supra. The review of this matter ex gratia, however, reveals that inherently, it has no merit. Appellant alleges that his counsel was ineffective because he (counsel) failed to object to the introduction of certain physical evidence. The evidence consisted of two screwdrivers. These items were seized by the police at the time of arrest. This allegation has never been, prior to this appeal, premised upon ineffective assistance of counsel. Appellant's argument attacked the prosecutor, charging that the prosecutor had, in effect, manufactured false evidence by marking the screwdrivers. These screwdrivers had, in a previous hearing involving a charge for possession of burglary tools, been suppressed because of the failure to establish a chain of custody and proper identification by the testifying officer. The charge of possession was nolle prossed. The problem of identification stemmed not from the items themselves (at the hearing on possession), but from the state's failure to produce the witness to properly identify them.

Upon the trial of the instant charges, these items were positively identified by the arresting officer and the laboratory expert. This testimony established sufficient identification of the screwdrivers. Initial challenge was made to the introduction of these screwdrivers on the grounds of an illegal search and seizure. No objection was made on the basis of chain of custody or identification. The record reveals no merit to the contention that the screwdrivers were obtained and therefore the result of an illegal search and seizure.

Appellant attacks his counsel for failing to object to a chain of custody being established. There is no need to establish a chain of custody in those instances where evidence is subject to direct and positive identification, see State v. Davis, 572 S.W.2d 243 (Mo.App.1978) and State v. Granberry, 484 S.W.2d 295 (Mo.banc 1972). Appellant's contention that his counsel should have objected, and that failure to do so amounted to ineffectiveness, would have required counsel to object to an irrelevant matter. Although respondent could not establish a chain of custody at the time of the hearing on the possession charge because of the particular witnesses tendered, respondent could and did establish a proper identification regarding the two screwdrivers upon the trial of the instant charge.

The record further shows that a stipulation existed between the parties which indicated that respondent agreed to dismiss the charge of possession of burglary tools in exchange for a withdrawal of objection to the chain of custody. The...