Opinion
No. 66123 and No. 68581
OPINION FILED: December 10, 1996
Attorney Richard L. Beaver for Appellant. 1816 Rolling Hills Drive, Jefferson City, MO 65109.
Emmett D. Queener, Public Defender, 3402 Buttonwood Columbia, MO 65201-3724.
Attorney Jeremiah W. (Jay) Nixon, Attorney General for Respondent David G. Brown, Assistant Attorney General P.O. Box 899, Jefferson City, MO 65102-0899.
Appeal from the Circuit Court of St. Louis City, Honorable Richard J. Mehan.
Before William H. Crandall, Jr., P.J., Mary K. Hoff, J. and William E. Turnage, Sr. J.
ORDER
Mark Burton was convicted of second degree murder, § 565.021 RSMo 1994 and armed criminal action, § 571.015 and sentenced to life imprisonment without parole and a concurrent term of thirty years imprisonment.
An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.
The judgment of conviction for murder and armed criminal action is affirmed. Rule 30.25(b). The judgment denying the motion filed under Rule 29.15 is based on findings of fact that are not clearly erroneous and is affirmed. Rule 84.16(b).
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENTS PURSUANT TO RULES 30.25(b) and 84.16(b)
This memorandum is for the information of the parties herein and sets forth the reasons for the order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
On August 11, 1992, Anthony Wilson and his girlfriend, Patricia Wordlaw, were visiting at a house in the City of St. Louis. Patricia was inside while Anthony was on the front porch talking with Mark Burton. Patricia observed through a window that Mark was holding a small black gun and then suddenly shot Anthony in the face. She testified that Anthony fell against the house. She stated Mark started down the steps from the porch and said "If he ain't dead . . ." and fired the gun at least two more times. She stated that Mark and Anthony had been arguing about money which turned out to be $20.00 which Mark had given Anthony for drugs. Patricia stated that Anthony was breathing when an ambulance was called but stopped breathing and died just before the ambulance arrived. There was testimony from four other witnesses who stated they saw Mark shoot Anthony in the face and saw him collapse immediately. The evidence was that Anthony had walked down the street and ridden in a car prior to the time he was shot.
Mark first contends that the evidence did not show beyond a reasonable doubt that the gunshot wound was the cause of Anthony's death. There is no dispute that Anthony was killed. The only contention is the insufficiency of the evidence to show the gunshot was the cause. This court reviews the evidence and the inferences therefrom in the light most favorable to the evidence. State v. Baker, 859 S.W.2d 805, 813[19,20] (Mo.App. 1993). "The corpus delicti in a homicide case consists of a person's death and the criminal agency of another." Id. All elements of a homicide case including the corpus delicti may be proved with circumstantial evidence. Id. In State v. Croka, 693 S.W.2d 133, 135 (Mo.App. 1985), the court held that circumstantial evidence in a homicide case is sufficient "if the facts in evidence are such that every person of average intelligence would know that the wound was mortal in character."
Here Anthony was walking about and talking when he was suddenly shot in the face by Mark. Thereafter he fell and was breathing until the ambulance arrived when Patricia said that he died. Surely every person of average intelligence would know that the wound in this case was mortal. There was sufficient evidence to show that the gunshot fired by Mark was the cause of Anthony's death.
Mark next contends that the court erred in sustaining an objection to his cross-examination of Patricia regarding a raid on her home which happened well after the homicide. The contention is that the raid "may" have found drugs in her home and she was therefore testifying favorably for the State in order to receive favorable treatment for a supposed criminal offense. Counsel for Mark told the court he had a newspaper article concerning a raid on a house where Patricia was living. The court inquired of the circuit attorney whether or not Patricia had a record and the attorney said that an investigation revealed that she had no record. There was no evidence that Patricia was arrested or charged with any criminal action.
Mark concedes in his brief that it is not proper to show an arrest for the purpose of impeachment of the credibility of a witness. Mark is correct because it is well settled that a witness' credibility may not be attacked by showing an arrest not resulting in a conviction. State v. McRoberts, 837 S.W.2d 15, 20 (Mo.App. 1992). For that reason the court correctly sustained an objection to the cross-examination of Patricia on the collateral matter of a raid on her home subsequent to the homicide.
Mark filed a motion under Rule 29.15. He first contends the court erred in denying such motion because his counsel was ineffective for failing to file a motion to suppress the out-of-court and in-court identifications of Mark as the person who shot Anthony. The court in its findings of fact found a motion to suppress would have been rejected. Mark argues that there were differences as to details of the shooting in the testimony of the various witnesses. The court found such differences would only go to the weight to be given to the testimony of the witnesses and not to the admissibility of the identification.
In State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993), the Court held that a review of the findings and conclusions in a Rule 29.15 motion "is limited to a determination of whether the findings, conclusions and judgment of the motion court are clearly erroneous." In State v. Vivone, 857 S.W.2d 489, 495 (Mo.App. 1993), the court held that the failure to file a motion to suppress evidence does not constitute ineffectiveness of counsel if the motion would have been rejected. Here the only ground urged by Mark to demonstrate that a motion to suppress should have been filed is the discrepancy in some of the details of the shooting in the testimony of the witnesses who observed the shooting. Manifestly this did not go to the identification of Mark but simply went to the weight which the jury would give to the testimony of the various witnesses. The court was correct in concluding that a motion to suppress would have been rejected.
Mark next contends the court erred in its findings when it found no ineffectiveness of counsel for failure of counsel to challenge for cause certain venirepersons. The venirepersons in question responded that they, or members of their family, had been the victim of a crime. Mark contends that this was grounds for a challenge for cause which his counsel failed to make.
It should first be noted that this ground was contained in a pro se motion filed by Mark at a time when he was represented by counsel. Under Lewis v. State, 767 S.W.2d 49, 52 (Mo.App. 1989), the court would have been justified in failing to consider this allegation because Mark was represented by counsel at the time he filed his pro se motion and he had no right to proceed pro se and through counsel. However, considering the merits of the allegation there was no error. As stated in State v. Debler, 856 S.W.2d 641, 645 (Mo. banc 1993), venirepersons are only disqualified "if their views would preclude following the instructions given by the court." Here each venireperson said that despite having been the victim of the crime they could return a fair verdict based upon the evidence at trial. There is nothing to indicate the venirepersons could not follow the instructions of the court.
Mark next contends that he was denied effective assistance of counsel because counsel failed to investigate, interview and evaluate the testimony of Ravon Thompson and cause his attendance at trial. Again this issue was raised in Mark's pro se motion which the court found was filed while Mark was represented by counsel. Under Lewis supra, Mark was not entitled to proceed pro se and with counsel. For that reason the court properly refused to consider this ground. However, even considering the claim on its merits, Mark is not entitled to relief. To demonstrate that counsel was ineffective for failure to call a witness, movant must prove, among other things, that the witness could have been located through reasonable investigation and would have testified if called. Mark's pro se motion failed to make that allegation. State v. Walden, 861 S.W.2d 182, 186 (Mo.App. 1993). In an amended motion filed by counsel, it was alleged trial counsel failed to call Ravone Thomas. Even considering this to be the same person as Ravone Thompson, there was no allegation that the witness would have testified if called.
Mark next contends that counsel was ineffective for failing to call an alibi witness. Mark's defense was alibi as testified to by three witnesses that he was at his grandmother's house at the time the murder was committed. Mark contends that the witness that was not called would corroborate his alibi. In State v. Jennings, 815 S.W.2d 434, 449 (Mo.App. 1991), the court held that there is no showing of prejudice in the failure to call a witness who would have given testimony that was merely cumulative of other alibi evidence. Here the witness whose absence is complained about would have given evidence which was only cumulative to the other alibi evidence. The finding of the court was not clearly erroneous on that point.
Finally Mark contends counsel was ineffective for failing to investigate the drug activity of Patricia and for failing to request discovery concerning the presence of drugs in her home for the purpose of impeaching her credibility. As stated above, counsel attempted to cross-examine Patricia concerning a raid on a house where she lived which occurred sometime after the murder. At that time the circuit attorney stated that no record on Patricia could be located which indicates that Patricia had no criminal conviction. There was no evidence adduced at the Rule 29.15 hearing that Patricia did have a record of any criminal conviction. Mark's entire argument is founded on speculation based on a newspaper article. Even the newspaper article was not placed in evidence so there is nothing to support the argument except the unbridled speculation that Patricia had some conviction which counsel failed to discover. As pointed out above, the only thing presented was the statement that Patricia may have been arrested. The court properly held that an arrest without conviction could not be used to impeach her. Without some showing that Patricia in fact had a conviction, Mark cannot show any ineffective assistance of counsel for failure to discover that which the record indicates does not exist.
The judgment of conviction is affirmed and the judgment denying the Rule 29.15 motion is affirmed.