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Childs v. State

Court of Appeals of Missouri, Eastern District, Third Division

August 19, 2014

ROBERT CHILDS, Appellant,
v.
STATE OF MISSOURI, Respondent

Page 581

Appeal from the Circuit Court of the City of St. Louis. Honorable Margaret M. Neill.

FOR APPELLANT: Scott Thompson, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, Missouri.

FOR RESPONDENT: Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, Missouri.

Kurt S. Odenwald, Presiding Judge. Robert G. Dowd, Jr., J., Concurs, Gary M. Gaertner, Jr., J., Concurs.

OPINION

Page 582

Kurt S. Odenwald, Presiding Judge

Introduction

Appellant Robert Childs (" Childs" ) appeals from the judgment of the motion court denying his Rule 29.15[1] motion for post-conviction relief without an evidentiary hearing. Childs was convicted by a jury of first-degree tampering with a motor vehicle. This Court affirmed Childs's conviction on direct appeal in State v. Childs, 362 S.W.3d 491 (Mo. App. E.D. 2012). Childs subsequently filed a motion for post-conviction relief pursuant to Rule 29.15, alleging his trial counsel was ineffective for: (1) failing to introduce photographs of the scene where Childs was identified by Officer Vogelzang, and (2) failing to object to police reports offered by the State at sentencing that accused Childs of prior unadjudicated criminal conduct. The motion court denied the motion without an evidentiary hearing. Childs now appeals. Finding no clear error, we affirm the judgment of the motion court.

Factual and Procedural History

Viewed in the light most favorable to the verdict, the evidence adduced at trial is as follows: On the morning of January 3, 2010, Jasmine Fisher (" Fisher" ) was in her green 1997 Toyota Camry in front of her home in the City of St. Louis. Fisher was preparing to leave for work when she realized she left her security badge in her house. Fisher went back inside her house for about 30 seconds, leaving the keys in the ignition. When she returned outside, her car was missing. Fisher then called the police and reported the car stolen.

Between 7:00 and 8:00 p.m. that night, St. Louis Metropolitan Police officers Stephen Walsh and Matthew Karnowski, plainclothes officers with the Anti-Crime Task Force, were working in the 5000 block of Davison Avenue. The officers saw a car matching the description on the department's " hot sheet" of stolen cars. A check with the dispatcher confirmed the car was still considered stolen. The car appeared unoccupied, so the officers watched the car from their unmarked vehicle, waiting to see if someone got in. Although the officers never saw anyone get in the car, the car suddenly drove off. The officers then followed the car and made a radio call to put out a description of the car and get help in apprehending it.

The officers initially lost sight of the car, but again saw it near Thrush and Lillian. Other Anti-Crime Task Force detectives were at that location and attempted to deploy spike strips to stop the car. The car came into contact with the strips, but the strips failed to stop the car. Shortly thereafter, the car stopped, a passenger got out, and the driver continued on. At this point, the officers again lost sight of the car.

Meanwhile, Officer Alexander Vogelzang, a uniformed patrol officer in the area, was stopped on an unrelated matter on Ferris Avenue, a one way street, when he saw Fisher's vehicle turn the wrong way onto Ferris. The car quickly drove directly toward Officer Vogelzang. At that time, Officer Vogelzang identified Childs, whom he knew from numerous encounters in the area, as the driver and sole occupant of the car. Vogelzang witnessed Childs jump the car onto the curb and drive through front yards of several houses along Ferris Avenue to maneuver around Officer Vogelzang's ...


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