Appeal (taken prior to January 1, 1972) from denial, after evidentiary hearing, of motion under Rule 27.26, V.A.M.R., to vacate and set aside judgment of conviction of rape.
Charles Marvell Mooring was convicted of rape by a jury which аssessed his punishment at fifty years’ imprisonment. Sentence and judgment were rendered accordingly; and, on appeal, the judgment of conviction was .affirmed. State v. Mooring,
As grounds for relief movant alleged: (a) that his conviction resulted from illegal arrest, illegal identification procedure and denial of counsel at lineup; (b) that the prosecution employed improper methods calculated to produce a conviction which, coupled with the identification by prosecutrix, deprived him of a fair trial; (c) ineffective counsel.
Movant presented his case by the trial transcript and testimony from Florence Bindbeutel, a supervisor in the I.B.M. Department of the Board of Election Commission, Ruth Mary Brock, the prosecutrix, Charles M. Shaw, defendant’s trial and appellate counsel, and himself.
Mrs. Bindbeutel stated that the cards furnished by her office to the circuit court for selection of jurors showеd name, address, township, and precinct, by which it would be possible to determine whether the person involved was from Ladue or Kin-loch. They did not show race. By transcript reference movant elicited that the venire of thirty-four jurоrs did not contain any Negroes.
Mrs. Brock acknowledged that she had seen pictures of men brought to her home for her to identify about four months before trial. She saw a picture of the defendant some time before trial. She viewed pictures, five to seven at a time, on three or four occasions. On the occasion she identified a picture of defendant the police may have said “we have the man,” but she was not certain how the words were. She was interviewed by a Kenneth Ziegler to whom she told what happened. There were several identifications and she identified defendant by a picture. She also told Mr. Ziegler that the police had told her two men had аlso identified defendant at the time she identified his picture. “They told me that they had confessions from the * * * other two men * * * involved, but I don’t recall whether they told me that at the time that they brought the picture * * *. There had to be some indication that the man was among these in the pictures otherwise they wouldn’t have brought them, but I don’t remember what they said * * She could not remember a lineup, but when her memory was refreshed from the transcript she recalled a lineup of fоur persons from which, she identified defendant. She thought the lineup occurred after the picture identification. She also identified a man named Taggert and another as being involved in the rape.
The trial transcript shows that the rape occurred about 10:30 p. m., February 9, *9 1966, in an area lighted by house lights. Mrs. Brock saw the faces of her three assailants, Charles Marvell Mooring, Nathaniel Warters, and Michael Taggert. She saw Mooring’s face for several seconds when she was first grabbed and for several more seconds as she was dragged to some bushes. She also saw his face for two full minutes while he was performing his act of forcible intercourse. Mrs. Brock made an in-court identificatiоn of Charles Marvell Mooring as one of her assailants. She also testified to seeing a picture of him and at the police station. Defendant made no objection at trial to this evidence. Upon cross-examination by defendant, Mrs. Brock testified with respect to the police lineup. The transcript shows also that Detective James Scavatta testified to Mrs. Brock’s identification of defendant Mooring. This, too, went in without objection, and dеfendant cross-examined the officer on the subject. The transcript also shows that defendant adduced evidence calculated to raise doubts as to the identification and on alibi. By transcript reference it was shоwn that trial counsel filed no motions to suppress identification testimony.
Charles Shaw, a lawyer engaged in the practice of criminal and defense law for a number of years, represented movant on the rape charge both in the trial court and on appeal to the supreme court. He did not remember how many times he discussed the case with defendant in preparation for trial. The defendant told him about a lineup and everything that haрpened from the time defendant was arrested. He also represented a man named Taggert and a boy named Hull (Michael Taggert and Bradford Robert Hull; see State v. Taggert,
With respect to his representation of Taggert and Hull on other charges at the same time he represented movant, Mr. Shaw explained: “ * * * they were friends, hired me. * * * What difference would it make who would be blaming anything on a lineup, as far as my legal work is concerned. * * * My understanding of the law is that if all three or more claim they are friends, * * * thеre can’t be a conflict of interest.”
Charles Marvell Mooring stated that there were no blacks in the venire called for his trial. He told Mr. Shaw about the lineup procedure used and that no one was similar to him in physical aрpearance and dress. He stated Mr. Shaw did not discuss *10 a pretrial motion or the lineup with him, except to tell him the lineup was unimportant.
Upon this evidence the court found: “ * * * that Mr. Shaw, being fully aware of his right to file a motion to suppress the lineup identification, but choosing not to for tactical reasons, was exercising his judgment in formulating trial strategy. His decision did not demonstrate such ineffective counseling as to deny movant of due process and equal protection of the law
“The only other point * * * is a claim of a denial of Constitutional Rights * * * because of a systematic exclusion of Negroes from the petit jurors who were called to hear his cause.
“This point was not contained in petitioner’s motion * * *. Further, this,, point was preserved and taken up by petitioner in his appeal * * * (State v. Mooring,
“The Court has reviewed the remaining allegations * * * and find[s] them without merit. Therefore petitioner’s motion is denied.”
Upon this review, this denial of relief is not to be disturbed unless the findings, сonclusions, and judgment of the trial court are clearly erroneous. Rule 27.26 (j), V.A.M.R.
Appellant contends (I) that he was denied due process “in that the circumstances of his identification were so suggestive as to make it all but certаin that he would be picked out”; (II) that he was denied effective assistance of counsel “in that he failed to file a pre-trial motion to suppress identification testimony obtained by an unconstitutionally suggestive lineup”; (III) that he was denied effective assistance of counsel “in that movant’s trial counsel represented three men potentially accused of the same offense”; (IV) that he was denied an impartial trial by a jury of his peers “in that Negroes were systematically excluded from both the venire panel and the petit jury.” (In addition to counsel’s brief in behalf of appellant, appellant has filed, pro se, a supplemental brief on Points II and III.)
In presenting Point I, appellant recognizes that “no objeсtion was made at trial to this identification, nor was any mention made in Movant’s Motion for a New Trial or in his appeal * * This alone is sufficient to show that the denial of relief on this ground was not clearly erroneous. This matter was, at most, a subject for trial error; and, as admitted, was not preserved for review. In addition, denial of relief on this ground in the posture of this case was not clearly erroneous because an in-court identification is admissible even though a prior confrontation was improper if the in-court identification has an independent origin. Cannon v. State,
With respect to Point II, appellant argues that counsel’s failure to file a pretrial motion to suppress identification exceeded the bounds of trial strategy because “the essence of a substantial defense was blotted out. Bruce v. United States,
Similarly, Mr. Shaw’s observations with respect to the now asserted conflict of interest, Point III, provided ample basis for the court to deny relief on that allegation. The record fails to show that anything was done by counsel at defendant’s trial, or foregone by counsel and lost to defendant, which was detrimеntal to him and which was advantageous to a code-fendant; and dual representation does not make such representation illegal
per se.
Mason v. State,
As found by the trial court and demonstrated by the motion, Point IV with respect to alleged systematic exclusion of Negroes from the venire and jury was not presented to the trial court. Consequently, it is not now for review. Maggard v. State,
Judgment affirmed.
PER CURIAM:
The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.