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Cummings v. State

Court of Appeals of Missouri, Southern District, Second Division

December 13, 2017

ROBERT D. CUMMINGS, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Calvin R. Holden, Circuit Judge


         Robert D. Cummings ("Movant") appeals from the motion court's denial, after an evidentiary hearing, of his motion for post-conviction relief under Rule 29.15.[1] Movant appeals asserting that the motion court clearly erred in denying his claims that (1) appellate counsel failed to claim that testimony of a witness was cumulative and improper bolstering, (2) the motion court failed to make findings on trial counsel's alleged failure to object properly to testimony, and (3) trial counsel was ineffective for failing to request relief under the speedy trial act. The claims have no merit; the judgment is affirmed.

         Standard of Review

This Court's review of a motion court's overruling of a motion for post-conviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). A motion court's findings and conclusions are "clearly erroneous only if this Court is left with a definite and firm impression that a mistake has been made." Mallow v. State, 439 S.W.3d 764, 768 (Mo. banc 2014).
. . . .
To establish ineffective assistance of counsel, a movant must prove "by a preponderance of the evidence that (1) trial counsel failed to exercise the level of skill and diligence that reasonably competent counsel would exercise in a similar situation and (2) the movant was prejudiced by that failure." Dorsey v. State, 448 S.W.3d 276, 286-87 (Mo. banc 2014) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). If a movant fails to satisfy either prong of the Strickland test, he or she is not entitled to post-conviction relief. State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997).
To satisfy the performance prong, movants "must overcome the strong presumption that counsel's conduct was reasonable and effective." Johnson v. State, 406 S.W.3d 892, 899 (Mo. banc 2013). This presumption is overcome when a movant identifies "specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Id. (internal quotation omitted).
To establish Strickland prejudice, "a movant must show a reasonable probability that, but for counsel's errors, the outcome would have been different." Dorsey, 448 S.W.3d at 287. "A reasonable probability exists when there is a probability sufficient to undermine confidence in the outcome." Id. (internal quotation omitted).
. . . .
There is "a presumption that counsel's alleged omissions were sound trial strategy." Storey v. State, 175 S.W.3d 116, 125 (Mo. banc 2005) (internal quotation omitted).

Hoeber v. State, 488 S.W.3d 648, 653, 655, 659 (Mo. banc 2016). In addition:

"To prevail on a claim of ineffective assistance of appellate counsel, the movant must establish that counsel failed to raise a claim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it." [Mallow, 439 S.W.3d at] 770 (internal quotation omitted). "There is no duty to raise every possible issue asserted in the motion for new trial on appeal, and no duty to present non-frivolous issues where appellate counsel strategically decides to winnow out arguments in favor of other arguments." Storey v. State, 175 S.W.3d 116, 148 (Mo. banc 2005) (internal quotation omitted).

Tisius v. State, 519 S.W.3d 413, 431-32 (Mo. banc 2017). Further, appellate counsel cannot be ineffective for failing to raise on appeal an issue that would not have been meritorious. Id. at 432.

         Appellate Counsel

         Although difficult to interpret, Movant's first point appears to be that appellate counsel was ineffective because counsel failed to claim on direct appeal that a detective's testimony about the speed with which three witnesses identified Movant in a photo lineup and the certainty of these witnesses in their identifications was "cumulative and improper bolstering."[2] Three witnesses identified Movant in a photo line-up. Following their testimony, a detective testified that each of the identifications took less than ten seconds and that the identifier did not express any uncertainty. Trial counsel objected that the testimony was cumulative and also, for two of the identifiers, that it was "improper bolstering." In its judgment, the motion court denied Movant's claim that appellate counsel was ineffective in choosing not to raise the issue because (1) that claim would not have been meritorious, " and (2) that Movant "cannot and did not show any evidence that an appellate reversal would have been reasonably likely to occur by the raising of a non-meritorious issue."

         Appellate counsel was not ineffective because this type of testimony from an individual who observed the identification process long has been admissible where the individual and the person who made the identification both testify and are subject to cross examination.

A police officer may testify, without improperly bolstering witness testimony, about an identification made by a witness if the officer viewed the identification procedure. State v. Claypool, 763 S.W.2d 313, 315 (Mo.App.E.D.1988). In Claypool, defendant argued the trial court erred by permitting a police detective to testify regarding photo identifications of defendant by two eyewitnesses. Id. at 314. Defendant contended the detective's testimony improperly bolstered the identification testimony. Id. Both eyewitnesses testified before the detective and the defendant had the opportunity to cross-examine the detective and eyewitnesses. Id. at 315. This court held the detective was competent to testify regarding the identifications and his testimony did not improperly bolster the testimony of the eyewitnesses. Id.
As in Claypool, the detective in the present case witnessed the identifications of defendant made by the victims. Defendant had the opportunity to cross-examine the victims and the police detective. The detective's testimony did not improperly bolster the victim's identification testimony.

Olds v. State, 891 S.W.2d 486, 489 (Mo.App. E.D. 1994); see also State v. Kidd, 990 S.W.2d 175, 180 (Mo.App. W.D. 1999) (similar statement of the rule).

         Testimony subject to this rule may be excluded if is "unduly cumulative." Kidd, 990 S.W.2d at 180.

"Evidence is said to be cumulative when it relates to a matter so 'fully and properly proved by other testimony' as to take it out of the area of serious dispute." State v. McCauley, 831 S.W.2d 741, 743 (Mo.App.1992) (quoting State v. Weatherspoon, 728 S.W.2d 267, 273 (Mo.App.1987)). The control of cumulative evidence is committed to the discretion of the trial court. State v. Wade, 926 S.W.2d 43, 45 (Mo.App.1996). We defer to the trial court in the absence of an abuse of discretion. Id. Additionally, "evidence is not to be rejected as cumulative when it goes to the very root of the matter in controversy or relates to the main issue, the decision of which turns on the weight of the evidence." State v. Perry, 879 S.W.2d 609, 613 (Mo.App.1994). "The state, especially in view of its heavy burden, should not be unduly limited in the amount of evidence it adduces, even if cumulative." State v. Welty, 729 S.W.2d 594, 600 (Mo.App.1987).

Id.; see also Black v. State 151 S.W.3d 49, 56-57 (Mo. banc 2004) (similar statement of the rule).

         In this case, an important fact in dispute at trial was the identity of the person who shot the victims. The detective's testimony about the speed with which three witnesses identified Movant in a photo lineup and the certainty of these witnesses in their identifications directly related to the disputed identity of the shooter - one of the main issues in the case that turned on the weight of the evidence. Appellate counsel was not ineffective for failing to raise a non-meritorious issue on appeal. Movant's first point is denied.

         Motion Court Failure to Make Explicit Findings

         Movant asserts, in a separate second point, that the motion court "made no specific findings as [to] trial counsels' alleged deficiencies [in failing to object properly to Detective Crum's testimony about three witnesses' out-of-court identifications in a photo lineup], " ...

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