Opinion
No. WD56201
June 1, 1999
APPEAL FROM THE CIRCUIT COURT OF LAFAYETTE COUNTY, THE HONORABLE ROBERT H. HAVENHILL, JUDGE.
Andrew Allen Schroeder, Kansas City, for appellant.
John Munson Morris, Jefferson City, for respondent.
Before Howard, P.J.; Ulrich J. and Smart J.
Edward Moss appeals from the denial, without an evidentiary hearing, of his Rule 29.15 motion for postconviction relief. Mr. Moss was charged by information with one count of robbery in the first degree, section 569.020. A jury found Mr. Moss guilty of robbery in the first degree, and he was sentenced as a prior offender to a term of fifteen years imprisonment. His conviction was affirmed on appeal. State v. Moss, 954 S.W.2d 662 (Mo.App. W.D. 1997). Mr. Moss contends that 1) trial counsel was ineffective in failing to object to hearsay testimony from prosecution witnesses; 2) original counsel was ineffective for failing, upon his request, to timely file a written motion for change of venue pursuant to Rule 32.03; and 3) appellate counsel was ineffective for failing to raise the claim on appeal that the trial court erred in sustaining, over trial counsel's objection, the State's motion for leave to endorse two additional witnesses on the first day of trial. The denial of Mr. Moss's Rule 29.15 motion is reversed, and the cause is remanded for an evidentiary hearing on the issue of trial counsel's ineffectiveness in failing to file a motion for change of venue pursuant to Rule 32.03.
All statutory references are to RSMo 1994 unless otherwise indicated.
FACTS
Mr. Moss was charged by information on December 11, 1995, with one count of robbery in the first degree, section 569.020. The state also charged Mr. Moss as a prior offender. A jury found Mr. Moss guilty of robbery in the first degree, and on August 5, 1996, the court sentenced Mr. Moss as a prior offender to a term of fifteen years imprisonment. This court affirmed his conviction and sentence on November 11, 1997. State v. Moss, 954 S.W.2d 662 (Mo.App. W.D. 1997).
On January 20, 1998, Mr. Moss timely filed a pro se motion for postconviction relief under Rule 29.15. Appointed counsel was granted an additional thirty days to file an amended motion. Mr. Moss filed an amended motion to vacate, set aside, or correct judgment and sentence and requested an evidentiary hearing on April 27, 1998, contending that 1) trial counsel was ineffective in failing to object to hearsay testimony from prosecution witnesses; 2) original counsel was ineffective for failing, upon his request, to timely file a written motion for change of venue pursuant to Rule 32.03; and 3) appellate counsel was ineffective for failing to raise the claim on appeal that the trial court erred in sustaining, over trial counsel's objection, the State's motion for leave to endorse two additional witnesses on the first day of trial.
The hearing court entered Findings of Fact and Conclusions of Law on June 15, 1998, denying Mr. Moss's rule 29.15 motion without an evidentiary hearing. This appeal followed.
STANDARD OF REVIEW
Appellate review of the denial of a postconviction motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Supreme Court Rule 29.15(k); State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996), cert. denied, ___ U.S. ____, 117 S.Ct. 1088 (1997). Findings and conclusions are clearly erroneous if after a review of the entire record the court is left with the definite and firm impression that a mistake has been made. Taylor, 929 S.W.2d at 2204; State v. Miller, 981 S.W.2d 623, 633 (Mo.App. W.D. 1998). To be entitled to an evidentiary hearing, Mr. Moss must 1) cite facts, not conclusions, which, if true, would entitle him to relief; 2) the factual allegations must not be refuted by the record; and 3) the matters complained of must prejudice Mr. Moss. State v. Blankenship, 830 S.W.2d 1, 16 (Mo. banc 1992); State v. Carey, 808 S.W.2d 861, 867 (Mo.App. E.D. 1991).
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first point on appeal, Mr. Moss contends that the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because trial counsel was ineffective in that counsel failed to object to hearsay testimony from two prosecution witnesses. To establish ineffective assistance of trial counsel, Mr. Moss must prove by a preponderance of the evidence that trial counsel was ineffective by failing to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances, and that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Clay, 975 S.W.2d 121, 135 (Mo. banc 1998), cert. denied 119 S.Ct. 834 (1999). To prove prejudice, Mr. Moss must show a "reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Clay, 975 S.W.2d at 135 .
Mr. Moss alleges that trial counsel was ineffective for failing to object to hearsay testimony from two prosecution witnesses, Rocky Evans and Jennifer Friedley, regarding a statement made by a codefendant. Mr. Evans and Ms. Friedly both testified that the codefendant stated to Ms. Friedley that he, Mr. Moss, and Mr. Evans robbed Truck Stops of America.
The law regarding a claim of ineffective assistance of counsel based on the failure to object at trial was set forth by this court in State v. Colbert:
Decisions concerning whether or when to make objections at trial are left to the judgment of counsel. State v. Suarez, 867 S.W.2d 583, 587 (Mo.App. W.D. 1993). Ineffective assistance of counsel is not to be determined by a post-trial academic determination that counsel could have successfully objected to evidence in a given number of instances. Id. The failure to object to objectionable evidence does not establish ineffective assistance of counsel unless the evidence resulted in a substantial deprivation of the accused [sic] right to a fair trial. Id. Counsel's failure to object to particular evidence can constitute mere 'trial error' not arising to constitutional proportions and thus not cognizable in a post-conviction motion. Id. An appellate court will not permit motion counsel to convert unpreserved error into viable error by arguing incompetence. Id.
State v. Colbert, 949 S.W.2d 932, 940-41 (Mo.App. W.D. 1997).
Even if we assume for the purposes of this argument that the statements made at trial by Mr. Evans and Ms. Friedley were hearsay statements and that Mr. Moss's trial counsel failed to make a meritorious objection to them, Mr. Moss has not made a sufficient showing of ineffective assistance of counsel. The mere fact that a meritorious objection was not made does not constitute ineffective assistance of counsel. State v. Clark, 925 S.W.2d 872, 879-80 (Mo.App. W.D. 1996). Mr. Moss must still show that counsel's overall performance fell short of established norms and that this incompetence affected the result. Id. Therefore, there must be a showing that, but for this error, a different result would have been obtained. Id.
The alleged hearsay statements made by Mr. Evans and Ms. Friedley were corroborated by other evidence properly admitted at trial. Mr. Evans, a co-conspirator in the robbery, testified regarding the details of the robbery and explained that he, Mr. Moss, and Mr. Hackley robbed the truck stop. Another witness, Lisa Ikenberry, testified that Mr. Moss, Mr. Evans, and Mr. Hackley left the house together and returned together and that upon his return, Mr. Moss told her that he had robbed the truck stop. Because a substantial amount of evidence of Mr. Moss's guilt was offered at trial, it is reasonable to conclude that the outcome of the trial would not have been different even if the alleged hearsay evidence Mr. Moss complains of had been excluded. Therefore, the record refutes Mr. Moss's claim of ineffective assistance of trial counsel for counsel's failure to object because prejudice cannot be shown. Point one is denied.
CHANGE OF VENUE PURSUANT TO RULE 32.03
In his second point on appeal, Mr. Moss asserts that the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because the record leaves the firm impression that a mistake has been made in that his original trial counsel was ineffective in failing to timely file a written motion for change of venue upon his request pursuant to Rule 32.03. Rule 32.03(a) states that
[a] change of venue shall be ordered in any criminal proceeding triable by a jury pending in a county having seventy-five thousand or fewer inhabitants upon the filing of a written application therefor by the defendant. In felony and misdemeanor cases the application must be filed not later than ten days after the initial plea is entered. The defendant need not allege or prove any reason for the change. The application need not be verified and shall be signed by the defendant or the defendant's attorney.
R. Crim. Pro. 32.03(a) (emphasis added).
The proceeding against Mr. Moss was held in Lafayette County, which is a county that has fewer than seventy-five thousand inhabitants. Mr. Moss contends that at an evidentiary hearing, he would prove that he appeared with his original counsel at his arraignment on December 12, 1995. After entering a plea of not guilty, he told his attorney, Ms. Meehan, that he did not want to proceed to trial in Lafayette County because of the substantial quantity of pretrial publicity. He told Ms. Meehan, therefore, that he wanted her to "get" venue changed to a different county. Mr. Moss stated at the sentencing hearing that he was not satisfied with Ms. Meehan's service because she failed to change venue as he had requested due to a possible conflict of interest.
The motion court did not grant a hearing on Mr. Moss's Rule 29.15 motion. In its Order and Judgment denying the motion, the court stated that because the right to change of venue in small counties is not a fundamental right, but is merely a right created by Missouri Law, the court did not need to decide whether Ms. Meehan's alleged failure to request a change of venue demonstrated incompetence on her part.
The motion court's finding that Rule 32.03 is not mandatory is incorrect. Under the plain language of Rule 32.03, in counties with populations of 75,000 or fewer inhabitants, defendants are entitled to a change of venue upon the timely filing of a written application without alleging or proving any reason for the change. R. Crim. Pro. 32.03(a); State v. Gilley, 785 S.W.2d 538, 539 (Mo. banc 1990); State ex rel. Jackson v. Thompson, 661 S.W.2d 677, 678 (Mo.App. W.D. 1983). The court has no discretion in whether to grant the defendant's request. See Hicks v. State, 918 S.W.2d 385, 386-7 (Mo.App. E.D. 1996); State v. Closser, 687 S.W.2d 657, 658 (Mo.App. S.D. 1985). Because the trial court is allowed no discretion where a defendant charged in a county defined by the rule moves for a change of venue, the practical effect of Rule 32.03 is to presume that the defendant cannot obtain a fair trial in the county. Therefore, if Mr. Moss did in fact timely request a change of venue as he alleges, he would have been entitled to such a change.
Nothing in the record refutes Mr. Moss's claim that he asked his attorney to file an application for change of venue, and if Mr. Moss timely requested a change of venue, he would be prejudiced by the denial of this right. Mr. Moss, therefore, has alleged facts sufficient to warrant an evidentiary hearing on this issue. If, after an evidentiary hearing, the motion court finds that the evidence supports Mr. Moss's contention, the trial court had no discretion in whether to grant the change of venue, and the trial court must determine whether Ms. Meehan's alleged failure to request a change of venue demonstrated incompetence on her part.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
In his final point on appeal, Mr. Moss contends that the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because appellate counsel was ineffective in failing to assert on appeal that the trial court abused its discretion in allowing the state to endorse two additional witnesses.
For Mr. Moss to prevail on a claim of ineffective assistance of counsel, he must prove by a preponderance of the evidence that counsel was ineffective by failing to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances, and that he was prejudiced as a result. Strickland, 466 U.S. at 687; Clay, 975 S.W.2d at 135 . To specifically prove ineffective assistance of appellate counsel, Mr. Moss must show that strong grounds exist showing that appellate counsel failed to assert a claim of error that 1) would have required reversal if it had been asserted, and 2) was so obvious from the record that a competent and effective attorney would have recognized and asserted it. See State v. Graham, 969 S.W.2d 759, 759 (Mo.App. W.D. 1998) (citing Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994)).
Mr. Moss asserts that at an evidentiary hearing, he would have offered evidence showing that on the first day of trial, the court gave the State leave to endorse two additional witnesses in spite of the fact that the identity of the witnesses had not been disclosed to the defense until five days before trial and the defense had previously filed a request for such disclosure under Rule 25.03. Mr. Moss contends that if appellate counsel had asserted on direct appeal that the court abused its discretion in allowing the state to endorse the witnesses, reversal would have been required. Therefore, appellate counsel was ineffective in failing to make such a claim on appeal.
The trial court has broad discretion in permitting the late endorsement of additional witnesses. State v. Chaney, 967 S.W.2d 47, 57 (Mo. banc 1998) (citing State v. Sweet, 796 S.W.2d 607, 613 (Mo. banc 1990)). An abuse of discretion may only be found when the endorsement of a witness results in fundamental unfairness to the defendant. See Sweet, 796 S.W.2d at 617 n. 4; State v. Box, 956 S.W.2d 460, 461-62 (Mo.App. S.D. 1997). Four factors are generally used to determine whether a trial court abused its discretion: (1) whether the defendant waived the objection; (2) whether the state intended surprise or acted deceptively or in bad faith, intending to damage the defendant; (3) whether the defendant was surprised and suffered any disadvantage; and (4) whether the type of testimony given might readily have been contemplated. Chaney , 967 S.W.2d at 57 .
The State's motion to endorse the witnesses in this case was not a surprise endorsement on the first day of trial. Mr. Moss admits in his Rule 29.15 motion that he received notice of the state's intent to call both witnesses five days before trial. The record supports the reasonable conclusion that the State did not intend to surprise Mr. Moss and does not support the contention that the State acted deceptively or in bad faith, attempting to disadvantage Mr. Moss. The witnesses were not interviewed before trial, and Mr. Moss failed to request a continuance when the trial court allowed the late endorsement. He may not now complain that he was denied an opportunity to prepare for the witnesses' testimony. The trial court did not abuse its discretion in allowing the State to endorse the additional witnesses. Because an assertion by appellate counsel on direct appeal that the court abused its discretion would have failed, appellate counsel was not ineffective. Point three is denied.
The denial of Mr. Moss's Rule 29.15 motion is reversed, and the cause is remanded for an evidentiary hearing on the issue of trial counsel's ineffectiveness in failing to file a motion for change of venue pursuant to Rule 32.03.
All concur