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10/19/93 STATE MISSOURI v. MICHAEL CUNNINGHAM

October 19, 1993

STATE OF MISSOURI, RESPONDENT,
v.
MICHAEL CUNNINGHAM, APPELLANT, MICHAEL CUNNINGHAM, APPELLANT, V. STATE OF MISSOURI, RESPONDENT.



Appeal from the Circuit Court of St. Louis County. Hon. Margeret M. Nolan.

Paul J. Simon, Presiding Judge, Albert J. Stephan, Jr., Judge - concurs. James A. Pudlowski, Judge - concurs.

The opinion of the court was delivered by: Simon

Appellant, Michael Cunningham, appeals his jury conviction for first degree burglary in violation of Section 569.160 R.S.Mo. 1986. Appellant was sentenced as a prior offender to fifteen years imprisonment. Appellant also appeals the denial of his Rule 29.15 post-conviction relief motion alleging ineffective assistance of trial counsel.

On appeal, appellant claims the trial court erred in: (1) denying his motion to force the state to elect between charging appellant with first degree burglary with intent to steal or with intent to rape and his motion for new trial because the failure of the court to force the state to elect the intent element of burglary denied appellant his right to be informed of the charges against him, his right to effective assistance of counsel, and his right to a fair trial; and (2) failing to intervene sua sponte in the state's closing and rebuttal arguments when the prosecutor improperly referred to appellant's failure to testify and in denying appellant's motion for new trial for the same reason. Appellant also claims that the motion court erred in denying his Rule 29.15 motion based on ineffective assistance of counsel in that trial counsel failed to: (1) preserve a Batson issue for appeal; and (2) request the trial court to allow appellant to introduce expert testimony on eyewitness identification. We affirm.

The sufficiency of the evidence is not in dispute. The evidence viewed in a light most favorable to the verdict reveals the following. Victim lived in a first floor apartment in an apartment building at 6452 Alamo, Clayton, St. Louis County, Missouri. On October 27, 1988 at about seven p.m., she entered the apartment building through the front door, which was always open. She then unlocked her apartment front door, entered, and closed the door without locking it. Her apartment had a back door which led to the back door of the apartment building, which was always locked. When she entered her apartment, she placed a bank envelope and her purse on top of a stereo speaker next to the front door.

She spent the evening cleaning her apartment, doing laundry, and packing for a trip starting the next day. While doing so, she turned on all of the lights in her apartment.

Around 10 p.m., she took her trash to the dumpster located near the back door of the building. She exited her apartment through the back door, and went out the back door of the building. The rear of the building was lit with a floodlight attached to the building, a streetlight over the dumpster, and a streetlight in the alley next to the building.

As she walked to the dumpster, she was startled to see a man whom she did not recognize approaching her. She later identified this man as appellant. As she reached the dumpster, appellant came within an "arm's length" of her and said, "Let me help you with that." She said, "No, no, that's okay." Appellant lifted and held the lid of the dumpster for her as she dumped the trash. After dumping her trash, she turned and walked to the back door of the building and entered. From the back doorway, she watched appellant walk away from the dumpster until he was out of sight. From the time she left the building to when she could no longer see appellant, she viewed appellant for about thirty seconds to one minute.

Five minutes after returning to her apartment, she went to the laundry room to retrieve her laundry. After spending three or four minutes in the laundry room, she went back to her apartment. She took her suitcase out of her bedroom and placed it in her dining and living room area where she folded and packed her clothes. She also hung some clothes on the doorknob of a nearby closet.

Sometime between 10:30 and 10:45 p.m., her friend, Bruce, entered the apartment through the front door. He told victim that the front door was unlocked. Victim told him she was not aware of it.

As she hung another item on the doorknob, she noticed the closet door moving slightly. She opened the door, and saw appellant crouched in the closet, holding onto the inside doorknob. She looked at appellant for about five seconds and recognized him as the man she had encountered earlier at the dumpster.

Terrified, she pushed the door partially closed and ran into the kitchen, where she whispered to Bruce that there was a man in the living room closet. He went to the closet and found the door open and no one inside. He then discovered the front door was open. Bruce and victim searched the rest of the apartment but did not find appellant, who had apparently entered and exited the apartment through the front door. At some point during the search, he called the police who arrived at the apartment five minutes later. Victim's description given to the police was of a black male in his mid-to-late twenties, about five-foot seven or eight, 170 pounds, with a moustache, wearing a baseball cap, blue jeans, and a blue jacket.

On November 28, 1988, a Clayton police detective visited victim at work and showed her six photographs, and she told the detective none of the men pictured was the intruder. In December 1988, the detective met with victim at the Clayton Police Department where the detective showed her a second photo array. Victim picked appellant's photo out of the array and identified him as the intruder.

On May 20, 1991, appellant was charged with first degree burglary pursuant to Section 569.160 R.S.Mo. 1986. The indictment and the information in lieu of indictment alleged that appellant knowingly entered unlawfully an inhabitable structure possessed by the victim for the purpose of committing the ...


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