33 S.W.3d 625 | Mo. Ct. App. | 2000
Jairo Cardona-Rivera (“Movant”) appeals from a judgment of the Circuit Court of New Madrid County denying his Rule 29.15 motion to vacate, set aside or correct a prior judgment and sentence for trafficking in the first degree as a prior offender. He received a prison term of 30 years without eligibility for probation or parole.
We do not disturb a motion court’s judgment denying post-conviction relief unless we determine its findings and conclusions are clearly erroneous. Sitton v. State, 17 S.W.3d 917, 920 (Mo.App.2000). “[W]e will find the motion court’s determination clearly erroneous only if a review of the entire record leaves a definite and firm impression that a mistake has been made.” Id. Movant must demonstrate that there is a reasonable probability that, absent the alleged error, the jury would have had a reasonable doubt as to guilt. Id.
In our review of Movant’s first point, he appears to argue that inculpating statements made to state troopers, at the scene of his arrest and when bundles of cocaine were found in a suitcase in the trunk of his car, should be suppressed because he was not warned of his alleged rights under Article 36(l)(b) of the Vienna Convention to have the Columbian consulate notified of his arrest.
While we recognize that the foregoing federal authorities are generally not binding on Missouri state courts, Futrell v. State, 667 S.W.2d 404, 407 (Mo. banc 1984); State v. Common, 959 S.W.2d 469, 473 (Mo.App.1997), their analysis and conclusions are particularly compelling in the context of our review of Movant’s claim of error. Accordingly, we adopt their rationale. Movant suffered no prejudice by not having been informed of the provisions of Article 36 of the Vienna Convention after his arrest. Point denied.
In his second point, Movant posits that his trial counsel was ineffective for failing to object at trial to the admission of the seized cocaine found in a suitcase in the trunk of Movant’s vehicle.
“In order to prevail on a claim of ineffective assistance, appellant must prove by a
“To prove prejudice, the movant must show a ‘reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.’ ” Shum, 866 S.W.2d at 468(quoting State v. Ervin, 835 S.W.2d 905, 929 (Mo. banc 1992)). “In arguing ineffectiveness, appellant must overcome a strong presumption that counsel’s performance was sound trial strategy.” Clay, 975 S.W.2d at 135. The standard for judging ineffective assistance for failure to object is clear:
In many instances seasoned trial counsel do not object to otherwise improper questions or arguments for strategic purposes. It is feared that frequent objections irritate the jury and highlight the statements complained of, resulting in more harm than good.
State v. Tokar, 918 S.W.2d 753, 768 (Mo. banc 1996). “The movant must prove that a failure to object was not strategic and that the failure to object was prejudicial.” Clay, 975 S.W.2d at 135. “Counsel will not be deemed ineffective for fading to make nonmeritorious objections.” Id.
The record shows that Movant’s counsel filed two motions to suppress the evidence found at the arrest scene: once during the course of federal prosecution proceedings against Movant in the United States District Court, as well as during the course of his state prosecution in the Circuit Court of New Madrid County.
“Whether a consent was voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances.... ” State v. Peterson, 964 S.W.2d 854, 857 (Mo.App.1998). “Missouri law recognizes that authority to give
Movant is not entitled to any relief because we find no indication of overall incompetence in his attorney’s defense of his case. See id. Our review of the entire record does not leave us with a definite and firm impression that a mistake has been made. Sitton, 17 S.W.3d at 922. Point denied.
The judgment of the motion court is affirmed.
. All rule references are to Missouri Court Rules (2000).
. See Vienna Convention on Consular Relations (Vienna Convention), April 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No. 6820. Article 36(l)(b) sets out that:
[I]f he so requests the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.
.The record shows that Movant spoke English with the state troopers at the time of his arrest, albeit with an accent. He admitted that he was the vehicle’s owner and produced a registration confirming his ownership. He also related, apparently in English, that he did not know the driver's name, where the trip originated or where they were going. See Cardona-Rivera, 975 S.W.2d at 202. Trooper Elfrink read Movant his Miranda rights and Movant acknowledged these rights by saying "yes and noddfing] his head.” See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706-07 (1966). Dur-
. State v. Joos, 735 S.W.2d 776, 784 (Mo.App. 1987) made but tangential reference to the Vienna Convention and only in the context of diplomatic immunity, a subject not implicated in the review of the instant case.
. As best we can glean from the record due to apparent violation of time requirements for prosecution, the federal case against Movant was dropped.
. After reading Movant his Miranda rights, the state troopers engaged Movant in a conversation in English. At first he denied knowing what was in the suitcase. Subsequently, he cooperated with state troopers and acknowledged that the bundles found in the suitcase were cocaine. According to state trooper Elfrink, he said “you know it's clo-caine [sic] and he said it with an L in the pronunciation.” He also indicated that he was getting paid a thousand dollars to deliver the cocaine and told Trooper Elfrink that there "was six or seven kilos” of cocaine in the suitcase.
. When asked if the bags found in the vehicle belonged to the him, the driver stated that "he didn’t want to make anymore statements until he talked to an attorney.”