author: SNYDER, Judge. KELLY, Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie Lee WILLIAMS, Defendant-Appellant.
    No. 46956.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.

      Robert J. Maurer, Clayton, for defendant-appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   SNYDER, Judge.

Willie Lee Williams appeals from a judgment entered on a jury verdict convicting him of stealing over $150, § 570.030 RSMo. 1978. He was sentenced by the court as a persistent offender to ten years imprisonment. § 557.036 RSMo.1978; § 558.016 RSMo.1978. Appellant’s principal allegation of error challenges the trial court’s refusal to permit him to make a closing argument pro se, even though he was represented by counsel, unless appellant testified under oath. The judgment is affirmed.

Appellant does not challenge the sufficiency of the evidence to support his conviction. There is evidence on the record to show that on April 10, 1982, appellant entered the Wehmueller Jewelry Store, 229 Chesterfield Mall, and took a ring valued at $9,235.00.

The events giving rise to the dispute on appeal began on the first morning of the trial, when counsel retained by appellant six months earlier moved to withdraw from the case upon appellant’s request. Appellant and his counsel had requested and obtained three continuances, but appellant had not requested a new attorney until the first morning of the trial.

After an evidentiary hearing at which appellant asserted there was a total breakdown in communication between him and his counsel, the trial court denied defense counsel’s motion to withdraw.

In a subsequent pre-trial proceeding, a defense counsel asked the appellant on the record whether he wanted to proceed to trial as his own counsel. The appellant answered he did not. The appellant nonetheless said he did not want his counsel to participate in the trial, even though counsel disagreed and warned appellant of the possible harmful consequences.

The transcript makes clear that, although appellant declined affirmatively to say he wanted to represent himself, he steadfastly clung to his position that he did not want to be represented by his defense counsel. The trial court just as steadfastly ruled repeatedly that the court was not permitting defense counsel to withdraw and that appellant was in fact represented by counsel.

Defense counsel sat with appellant throughout the trial, made statements to protect his client, participated at bench conferences, and represented appellant at pretrial and post-trial hearings. When the trial was well under way, the trial court granted appellant’s request to personally cross-examine the state’s witnesses.

When the state rested its case, the trial court asked, out of the jury’s presence, whether the defense had any witnesses. Appellant then, for the first time, requested that he be allowed to subpoena witnesses. The trial court denied his request because it was too late. Appellant did not testify and no other evidence was adduced on his behalf.

The trial court refused to allow appellant to argue his case to the jury unless he first testified under oath. Appellant declined to do so.

The state made its closing argument. The jury retired and returned a guilty verdict. The court imposed a ten year sentence based on the verdict.

Appellant did not appeal from the denial of defense counsel’s motion to withdraw.

In his first point on appeal, appellant contends the trial court erred in failing on its own motion to inform him at the beginning of trial of his option to proceed to trial pro se, and in failing to have him execute a written waiver of counsel pursuant to § 600.051 RSMo.1978.

These allegations were not preserved for appellate review and are raised here for the first time. Rule 29.11(d). This court has considered the merits of appellant’s contention under the plain error rule, 30.20, and finds it has no merit.

Where the defendant does not request to represent himself the court is not required voluntarily to advise him of that option. State v. McCafferty, 587 S.W.2d 611, 612 (Mo.App.1979).

The facts of this case do not require the application of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Under Faretta, a defendant has a constitutional right to conduct his own trial when he knowingly, intelligently, and in a timely fashion exercises that right. The appellant in this ease did not invoke his Faretta rights by requesting to serve as his own counsel although he was offered that option.

The trial court did not err in failing to apply § 600.051, RSMo.1978. Where an attorney is present to assist a defendant who insists on participating as co-counsel, there is no waiver or attempted waiver of counsel; § 600.051 is inapplicable. See, e.g., State v. Harper, 637 S.W.2d 170, 173[4, 5] (Mo.App.1982).

There was no manifest injustice or miscarriage of justice in the court’s failure voluntarily to allow the appellant to represent himself or to apply § 600.051.

In his second point, the defendant contends the trial court erred in conditioning the defendant’s right to offer a pro se closing argument upon waiver of his right not to testify. This contention, too, is without merit.

A pertinent portion of the trial record follows:

THE COURT: Mr. Williams, there’s been some indication you might have some idea about arguing your case. Is that— WILLIE LEE WILLIAMS, THE DEFENDANT: Yes, Your Honor, but I don’t wish to take the stand.
THE COURT: You don’t wish to take the stand?
WILLIE LEE WILLIAMS, THE DEFENDANT: No, sir.
THE COURT: Well, unless you take the stand and testify, I am not going to let you argue your case.
WILLIE LEE WILLIAMS, THE DEFENDANT: Well, I just want the record to show that I am not waiving my argument, but I don’t wish to take the stand.
THE COURT: Okay.
MR. LARREW: I think the record should further reflect that Mr. Harris is available and could make the argument for the defendant.
THE COURT: Yes, but the defendant has indicated he doesn’t want Mr. Harris to make it. He doesn’t want to waive it, but he doesn’t want to testify.
MR. LARREW: I just want to make the record clear, somebody is available to make the record for the defendant.
THE COURT: That’s right. You don’t want Mr. Harris to make the argument for you?
WILLIE LEE WILLIAMS, THE DEFENDANT: There’s nobody available, because he’s not here representing me, so how can—
THE COURT: Well, he is here presently. As far as you are concerned, he does not represent you and you do not want him to make the argument for you?
WILLIE LEE WILLIAMS, THE DEFENDANT: Right.
THE COURT: You want to waive the argument, but you don’t want to testify. WILLIE LEE WILLIAMS, THE DEFENDANT: Correct.

The last exchange between the appellant and the trial court would indicate that appellant did indeed affirmatively waive the argument. Whether or not he meant to waive it when he said, “Correct,” he in effect waived it when he refused to allow defense counsel to sum up.

The defendant in a criminal case has a Sixth Amendment right to a closing argument. Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); United States v. King, 650 F.2d 534 (4th Cir.1981); see also State v. Page, 21 Mo. 257, 259 (1855). In Herring v. New York, United States v. King, and State v. Page, however, the defendant was represented by counsel who was denied or restricted in the opportunity to address the jury. In the case under review appellant’s counsel’s opportunity to make the closing argument was not denied or restricted in any way except by the appellant himself.

That appellant wished to make his own closing argument is not necessarily determinative. If appellant had asserted his right to self-representation (see Faretta v. California, supra,) the trial court would have erred in denying appellant the right to make a final argument. Appellant, however, did not exercise this right.

The request to address the jury, coming after a trial in which appellant was represented by counsel, was in effect a request for hybrid representation, a combination of self-representation and assistance of counsel. Criminal defendants, however, have no constitutional right to both types of representation. United States v. Weisz, 718 F.2d 413, 426 n. 72 (D.C.Cir.1983). Instead, whether to allow hybrid representation is discretionary with the trial court. United States v. Bennett, 539 F.2d 45, 49[1] (10th Cir.1976).

In Ross v. State, 53 Md.App. 397, 453 A.2d 828 (1983), the appellate court held that no abuse of discretion occurred where the trial court refused the defendant’s request, made after the prosecution attorney had concluded the opening portion of the state’s final argument, to address the jury on his own behalf.

Similarly, in State v. Carr, 13 Wash.App. 704, 537 P.2d 844 (1975) the court held, “If a criminal defendant is represented by counsel and counsel is afforded a full opportunity to argue to the jury, then whether the defendant will be permitted to make a separate, pro se closing argument is a matter within the discretion of the trial court.” 537 P.2d at 850[17, 18]. No abuse of discretion was found. Id. The reasoning in Ross v. State and State v. Carr is persuasive.

To allow the appellant to make his own closing argument would be tantamount to permitting him to testify without being under oath. Inasmuch as appellant, being represented by counsel, had no right to make his own closing argument, the trial court refused to allow this.

A trial judge must be allowed to control his courtroom. State v. Johnson, 499 S.W.2d 371, 374[5, 6] (Mo.1973); State v. Elbert, 471 S.W.2d 170, 173[3, 4] (Mo.1971). Here the judge was faced with the unusual situation in which the appellant stubbornly and irrationally interfered with and restricted able counsel’s representation. Appellant’s motives are unknown, although it was obvious he wanted to delay the trial.

Appellant was wise in the ways of trials. He cited statutes by number and referred to past cases in which he had been found guilty by a jury. He tried to influence both his counsel (successfully) and the court (unsuccessfully) in the conduct of the trial. Counsel did the best he could under the circumstances.

Appellant had the right to be represented. If he interferes with that representation, as he did here, he must accept the consequences. To remand this case would only serve to interfere, however slightly, with the administration of justice and the public interest. It would also serve as a signal for other defendants to go and do likewise.

The trial court afforded appellant’s counsel a full opportunity to make a closing argument, but appellant rejected this opportunity. The trial court, in extending to appellant the additional opportunity to address the jury pro se provided that he take the witness stand, gave appellant more than that to which he was constitutionally entitled.

The courts in Ross v. State and State v. Carr found no abuse of discretion where the trial court denied outright the defendant’s request to make a pro se closing argument. This court finds no abuse of discretion in the case under review.

The judgment is affirmed.

STEWART, J., concurs.

KELLY, P.J., concurs in part and dissents in part.

KELLY, Judge,

dissenting.

While I concur in the principal opinion’s holding that the trial court did not err in failing to inform the accused at the beginning of the trial of his option to proceed pro se and in failing to have him execute a written waiver of counsel pursuant to § 600.051 RSMo 1978, I respectfully dissent from its holding that there was no prejudicial error in conditioning his right to argue his case unless he took the stand and testified.

The trial of this case is a prime example of the problems inherent in trials where a defendant becomes disenchanted with his trial counsel and at the last minute desires a change of counsel prior to going to trial. There is no question that Williams did not want to appear in propria persona. He made that clear prior to the commencement of the trial, following the hearing on his motion to permit his retained counsel to withdraw, when the following dialogue took place:

MR. HARRIS: Robert, are you asking the court to represent yourself?
THE DEFENDANT: No. I am asking the court to give me [sic] continuance to get me an attorney, is what I am asking.

Williams never changed his position. He persisted in demanding that counsel not represent him throughout the course of the trial, refused to consult with him, and rejected any offer of assistance by trial counsel.

On appeal he argues that despite the fact he was told that his counsel was to represent him in the trial of the case, by the time the trial reached the closing argument stage, it was clear that he was being permitted to act completely on his own and, in fact, to represent himself; that if he took the stand in his own defense retained counsel would have participated in the trial, over his objection; that the animosity between himself and his retained counsel had been displayed from the outset; that, therefore, he was denied an opportunity to freely and independently choose to remain silent or to testify, in violation of Article I, § 19 Mo. Const.1945.

The Sixth Amendment to the United States Constitution envisions a truly adversarial criminal trial and even when there is no available theory of defense, the prosecution must be held to its burden to prove each and every element of the crime charged beyond a reasonable doubt. United States v. Cronic, - U.S. -, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). This same right is recognized in the Constitution of the State of Missouri. Art. I, Sec. 18(a) Mo. Const.1945.

While an accused is not guaranteed a perfect trial, he is guaranteed a “fair trial,” and if he is not afforded a fair trial his due process rights are violated. United States v. Cronic, supra 104 S.Ct. at p. 2039. Assurance of a fair trial is constitutionally founded on due process. When there has been a denial of a fair trial, the deprivation is of such a fundamental nature that any conviction flowing therefrom must be set aside. A study of this record compels a conclusion that appellant was not afforded the fair trial required by due process.

Initially, neither appellant nor his counsel participated in the selection of the jury. Appellant would not permit his counsel to do so, and although invited to assist in selecting the jury, he refused to do so. The trial court inquired:

THE COURT: Well, at this particular stage of the proceedings, then, what I am asking is: Do you want him (defense counsel) to participate in the selection of this jury?
THE DEFENDANT: No part. No part.
THE COURT: Do you personally, yourself, want to make any strikes?
THE DEFENDANT: I don’t want to make any comment on this charge — I don’t want this lawyer, Mr. Harris, representing me at all until I can get time enough to hire me another lawyer. All I ask for is sixty days, thirty days to prepare my defense. This lawyer haven’t done anything in my case. I specified this and I am expressing it now.
THE COURT: That includes the fact that you don’t want to participate in the selection of this jury?
THE DEFENDANT: That includes everything.

The jury was selected from a panel of twenty-four jurors by allowing the state to exercise six peremptory challenges, § 546.-180 RSMo 1978. After the state struck six jurors, the jury was selected from the remaining eighteen prospective jurors, in numerical order, until the trial jury was seated. Three alternates were also voir dired, and the alternate juror was selected by permitting the state to exercise one challenge, § 494.065, RSMo 1979, and then the next juror, in numerical order, was seated as the alternate juror. Neither the accused or his attorney participated in the selection of the jury.

After the trial court read MAI-CR 2d 2.02 the defense attorney asked leave to approach the Bench and objected to the reading of that instruction, which outlined the procedures with respect to opening statements and objections, since he was under instructions by the accused not to make any objections or to take part in the trial and therefore the instruction did not truly reflect what was going to take place during the trial of the case. Counsel also moved for a mistrial. The objection was overruled and the motion for mistrial was denied.

The prosecutor proceeded to make an opening statement and at its conclusion the accused was invited to approach the Bench, where, out of the hearing of the jury, he was asked if he was sure he didn’t want to make an opening statement at that time. He replied: “Yes sir. Positive.” He was then asked if he didn’t want counsel to make one for him. He replied: “I do not.” Defense counsel then inquired of the accused whether he wanted him to make any objections to improper questions if any were asked. The accused replied: “I don’t want you to make any objections, any comment, or any — no knowledge at all concerning this case.” No opening statement was made by either the accused or defense counsel.

The state proceeded with its evidence. No objections were made throughout the entire testimony of the first witness for the state, despite the fact that there were some instances of leading questions interspersed throughout the interrogation. At the conclusion of this direct examination of this witness the following colloquy took place: “MR. HARRIS: Your Honor, this trial at this point is very fast approaching a farce. This deliberate boycott on the part of my client, I think he ought to be advised as to the consequences of it because unless there can be some cross-examination, there’s just no way there can be a fair trial that can be imposed and I am under strict guidelines right now from my client not to cross-examine and I think somebody ought to explain the facts of life to Mr. Williams and ask that be done outside of the hearing of the jury, but as I said, this case is fast being [sic] a farce. There’s just no way he can get his proper rights, but I am just afraid that any appellate court is going to say he intentionally waived them and I would think he ought to know exactly where he stands.

“THE DEFENDANT: I haven’t intentionally waived no rights. I have intentionally asked you to be removed from my case for representing me, that’s what I have intentionally done. Any other rights I reserve.

“THE COURT: H’m. Well, I’m not too thrilled about the situation myself, but do I correctly assume again, Mr. Williams, that you do not wish Mr. Harris to cross-examine this witness?

“THE DEFENDANT: Your Honor, I wish the Court to acknowledge the fact that my case is not being handled properly and I am being denied due process of law under the Sixth Amendment, that’s what I want the Court to be aware of.

“THE COURT: Well, I take it from that, you don’t want Mr. Harris to cross-examine.

“THE DEFENDANT: I have expressed this numerous of time.

“THE COURT: Well, rather than, rather than run you through this after each direct examination of the witness—

“MR. HARRIS: It’s not so much at this point of running us through. It’s just at this point this whole proceeding is turning into nothing but a farce. I mean it’s a two-day long standing guilty plea and what defense he’s got should be asserted and by not asserting them I am just, as I said, I am afraid it’s being waived and I think he ought to be made aware that the fact that I am not asking questions may very well come back and haunt him later.

“THE DEFENDANT: I haven’t waived no rights.

“MR. LARREW: I’m sorry, are we concluded on that part?

“THE COURT: Are we what?

“MR. LARREW: Are we concluded on this part?

“THE COURT: Yes, but I just want to advise Mr. Williams that after you are finished with the direct examination of the other witnesses, I am not going to call for a conference here at the Bench and ask him again whether or not he wants to cross-examine.

“MR. HARRIS: You didn’t call for this one. I called for it.

“THE COURT: No, I know.

“THE DEFENDANT: I would like to have this witness cross-examined but not by Mr. Harris.

“THE COURT: Well, at this point you are going to have him cross-examined by Mr. Harris or no one.

“THE DEFENDANT: Did I refuse to have him cross-examined by Mr. Harris?

“THE COURT: Okay, and I assume, I guess that you don’t want any witnesses who testify cross-examined by Mr. Harris.

“THE DEFENDANT: No.

“THE COURT: Well, here, there are some other witnesses I think that the state’s going to call and after the direct examination of those witnesses, rather than, I know I didn’t call for this conference but I am not going to call for any conference after the testimony of a witness to determine whether or not you want to cross-examine them. If you change your mind and you do want to cross-examine some witness, you just let me know.

“THE DEFENDANT: I would like to have this witness cross-examined expertly—

“THE COURT: Well,—

“THE DEFENDANT: — by a competent attorney.

“THE COURT: That’s Mr. Harris.

“THE DEFENDANT: But he is no longer representing me, Your Honor. He is not representing me.

“THE COURT: Well, that remains to be seen, Mr. Williams. I have determined that he is representing you and you’ve indicated that he is not, so for the purposes of this trial as far as I’m concerned he is representing you.

“THE DEFENDANT: But I hired him with my money.

“THE COURT: Yes.

“THE DEFENDANT: With my hard earned money I hired him. I have the right to choose and fire and I don’t want the man representing me.

“THE COURT: I take the position—

“THE DEFENDANT: How can the Court enter into a contract with a man I made personally with the attorney?

“THE COURT: I am taking the position that you waited too long to advise the Court that you wanted to fire him; that this setting date was made and the case was ready to go to trial and I have determined that he is your attorney.

“THE DEFENDANT: But I didn’t wait too long. I didn’t have access to my attorney. I have been trying to get in touch with him for the last four months, so how did I wait too. long? I’ve been writing him and phoned his office, leaving a message with his secretary for the last four months.

“THE COURT: With who?

“THE DEFENDANT: With Mr. Harris.

“THE COURT: Mr. Harris advised me that the first time you told him you didn’t want him to represent you was this past Saturday, a couple of days ago.

“THE DEFENDANT: Just a minute. Excuse me one minute.

“MR. LARREW: Off the record.

“[Off-the-record discussion].

“THE DEFENDANT: Here is a letter from out of town, a law firm that I’ve been trying to get to represent me. She didn’t give me advice or try to get in touch with the other lawyers to try to represent me. This man wouldn’t get off the case. That’s why I couldn’t get another lawyer to enter an appearance on the case. My girlfriend wrote me she had been trying to get in touch with Mr. Harris for the longest. He told her I had sixteen years.

“MR. HARRIS: There’s no way I would have told him.

“THE DEFENDANT: That’s what she wrote and told me.

“Mr. HARRIS: Okay, I’m not going to sit here and argue.

“THE COURT: Well, okay.

“THE DEFENDANT: I waited too long? The responsibility is not on me. I can’t leave the jail. The only thing I can do is write and call and have somebody to go by his office to come see me. I don’t have no alternative.

“THE COURT: Well, okay, Mr. Williams. It may turn out that—

“[The defendant shows document to the court at the Side Bar Bench].

“THE COURT: What is this?

“MR. HARRIS: That is part of my fee

“THE DEFENDANT: Partial fee, a hundred fifty dollars ($150).

“THE COURT: Oh, okay. All right.

“THE DEFENDANT: Plus two hundred.

“THE COURT: Well, it may turn out that you are right about all this and this whole thing may be a farce. I dont’t know. But in my opinion, at the moment it is not and we are going to go ahead and finish it. You will have every right to appeal and do whatever you want after that, but as I said before now, I am not going to call you up any more after the other witnesses testify and if you want to cross-examine any of the witnesses you can signify it by either letting me or Mr. Harris know. Otherwise, I will assume you do not want him to cross-examine them.

“THE DEFENDANT: You are assuming correct.

“THE COURT: And we are going to recess now until 9:30 tomorrow morning.

“MR. LARREW: Judge, let me move for admission of State’s Exhibits 1 through 6 and 1 through 8 inclusive.

“THE DEFENDANT: I want to object to admitting that evidence.

“THE COURT: You want to object to it?

“THE DEFENDANT: That’s right. That’s right. I’ve already filed this motion, object to all this evidence. I want to have this motion filed with the Court objecting to all that, what he’s talking about.

“THE COURT: Well, I told you this morning was the first time that I had seen this.

“THE DEFENDANT: The court can get a copy of that.

“THE COURT: I don’t know anything about it and as far as right now, I will overrule your motion, your objection to this evidence, and State’s Exhibits 1 through 8 will be received.

“[State’s Exhibit 1 through 8 received in evidence]

“THE DEFENDANT: I just want it to be a matter of record, Your Honor.

“THE COURT: Okay.”

[Emphasis supplied]

No cross-examination of this witness was conducted.

At this stage of the trial defense counsel called up a motion for psychiatric examination of the accused he had filed earlier that morning. This motion was denied.

The next state’s witness was a Mrs. Thompson. Her testimony was the most damaging to accused because she was the only witness to testify she saw the box containing the ring in the possession of the accused. Her testimony was uninterrupted by any objections by accused or his counsel.

The trial court, despite its previous directive to the accused that his counsel alone could conduct the cross-examination of the state’s witnesses, permitted the accused to cross-examine Mrs. Thompson. The accused, unaided by defense counsel, conducted a cross-examination which, except for one question, was neither argumentative nor disruptive of accepted trial procedure.

The accused also conducted cross-examination of the next two state’s witnesses, and did so without creating any disturbance. Counsel did not assist him in the cross-examination of either of these state’s witnesses.

When the state rested its case the following occurred out of the presence of the jury:

THE COURT: Mr. Williams, I, I know that I’ve indicated to you that as far as I was concerned Mr. Harris was your attorney and you were represented and therefore probably only he should ask questions and give final arguments and things like that, but since it’s a little unusual, I have allowed you to ask some questions. I guess at this point if I were consistent I would say that you wouldn’t be allowed to present any evidence or to testify without Mr. Harris’ okay. Do you, did you have any intentions of presenting any evidence or, or you weren’t thinking about testifying yourself, were you?

There followed some discussion between the accused and the trial court concerning some motions, including one for judgment of acquittal at the close of the state’s case. All motions were overruled. During the discussion of one of these motions defense counsel attempted to clarify what was a motion to suppress some evidence at the preliminary hearing, on the grounds there was insufficient evidence to bind the accused over to the circuit court; other than that one instance, defense counsel did not participate in these discussions. Then the following occurred:

THE COURT: Mr. Williams, there’s been some indication you might have some idea about arguing your case. Is that—
WILLIE LEE WILLIAMS, THE DEFENDANT: Yes, Your Honor, but I don’t wish to take the stand.
THE COURT: You don’t wish to take the stand?
WILLIE LEE WILLIAMS, THE DEFENDANT: No, sir.
THE COURT: Well, unless you take the stand and testify, I am not going to let you argue your case.
WILLIE LEE WILLIAMS, THE DEFENDANT: Well, I just want the record to show that I am not waiving my argument, but I don’t wish to take the stand.
THE COURT: Okay.
MR. LARREW: I think the record should further reflect that Mr. Harris is available and could make the argument for the defendant.
THE COURT: Yes, but the defendant had indicated he doesn’t want Mr. Harris to make it. He doesn’t want to waive it, but he doesn’t want to testify.
MR. LARREW: I just want to make the record clear, somebody is available to make the record for the defendant.
THE COURT: That’s right. You don’t want Mr. Harris to make the argument for you.
WILLIE LEE WILLIAMS, THE DEFENDANT: There’s nobody available, because he’s not here representing me, so how can—
THE COURT: Well, he is here presently. As far as you are concerned, he does not represent you and you do not want him to make the argument for you?
WILLIE LEE WILLIAMS, THE DEFENDANT: Right
THE COURT: You want to waive the argument, but you don’t want to testify.
WILLIE LEE WILLIAMS, THE DEFENDANT: Correct
(Emphasis supplied)

The state presented its argument and no argument was made for the defense. The cause was submitted to the jury and a verdict of guilty returned.

The principal opinion, in my opinion, misinterprets the accused’s position when it holds that he “did indeed affirmatively waive the argument.” He made it clear throughout the trial he was not waiving any of his constitutional rights. The majority has seized upon what is, in my opinion, a misstatement of the accused’s position after a leading question asked by the court of the accused suggesting to him that he waived argument, whereas he had just immediately prior thereto, during the same discussion, insisted he was not waiving argument. It was made clear to him that unless he took the stand, and testified he could not argue the case. The sentence seized upon by the majority to constitute a waiver merely demonstrates how confused the accused was when he answered a leading question propounded to him by the court.

The principal opinion recognizes that an accused in a criminal case has a due process right to a closing argument. Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); United States v. King, 650 F.2d 534 (4th Cir.1981); State v. Page, 21 Mo. 257, 259 (1855). Although the court in Herring acknowledged that the right to argument may be waived, it did not discuss the method of waiver to be employed. The general rule is that a waiver is not found unless the record shows “an intentional relinquishment or abandonment of a known right or privilege.” I believe the record in this case clearly shows the accused had no intention of waiving his right to argument.

The principal opinion categorizes defense counsel’s participation in this trial as “hybrid representation.” I am of the opinion it did not rise to that dignity. Although able trial counsel was present throughout trial his ability was limited by the accused’s insistence that he take no part in the conduct of the trial and, except for the few instances I have excerpted from the record, he did not. Furthermore, even assuming, arguendo, that appellant’s counsel’s participation in the trial could be categorized as “hybrid representation,” I would hold that the trial court abused its discretion by predicating the exercise of his due process right to argue upon his waiver of his Fifth Amendment right not to testify.

I am sympathetic to the trial judge caught in this position when he is faced with an accused who seeks to change trial counsel just prior to the commencement of trial. I am also aware of the line of authority holding that an accused is not entitled to counsel of his choice in all instances. I also recognize the necessity for the trial court to control and move its docket. However, in my opinion, the question presented here demonstrates a breakdown in the adversarial process where the accused is required to make an election between his constitutional right not to testify and his due process right to argument. Accused, except for his adamant insistence that counsel should not represent him, did not demonstrate that he could not have conducted a proper argument. Even if he had no viable defense, he had a due process right to assert such defense as he might have, Herring v. New York, supra, or to call attention to the jury any weakness in the state’s case that might exist.

For these reasons I would reverse and remand this judgment of conviction to the circuit court for a new trial, and I respectfully dissent from the holding of the principal opinion.

      . THE COURT: Did you want to say anything with regard to this Motion for Psychiatric Examination?
      MR. HARRIS: Yes, Your Honor. This morning I filed a motion to have Mr. Singleton examined. In the course of my dealings with him and especially in the course of the last couple of days, he’s acted in a bizarre manner. He’s got what we would normally call a reality avoidance system. When he’s told what’s going on, what his legal rights are and what the law is, he refuses to admit it, he tells me that I don’t know what I’m talking about.
      Furthermore, at this point he refuses to follow any legal advice. His behavior is almost suicidal bent, knowing that there can be only one outcome of this mock and farce that we are going through right here and I mean there’s no way when he plays games like this, that it’s either a very cunning plan of a very brilliant mind that’s trying to completely mess up the legal system or the man is sick. I think he’s sick and I think he ought to be examined before we proceed any further.
      I would further state that I cannot go into conversations other than to show, say that he has shown certain persecutorial delusions and he’s indicated things to me that would show a certain type of paranoia and I just don’t think he is competent at this point to proceed to trial any further than we have at this point, probably not as far as we have.
      MR. LARREW: Judge, the state obviously opposes the motion at this time as being rather untimely, and furthermore, I don’t think on the basis of the bare allegations in the motion the defendant should be able to take advantage or gain advantage out of what he really wants to do and that is put this trial off and I think that while that is not the purpose of Mr. Harris’ motion, that would be the result if this motion is granted and would be in accord with what the defendant has done and attempted to do throughout this trial. I don’t think the allegations would support the granting of this relief and I would hope the court would deny the motion to continue this trial.
      MR. HARRIS: Your Honor, all I can say is the leading case on this is a case that arose here in St. Louis County and went all the way to the United States Supreme Court and that is the case of Drope v. Missouri and in that case the Supreme Court of the United States indicated that the court, having seen the bizarre activities which occurred in part within his own courtroom, had a duty sua sponte without any motion to order psychiatric examination to determine competency. In that case there was certain bizarre activity in the courtroom that re-suited in attempted suicide overnight during the recess, but they said the court could see the bizarre activity themselves and because of the way the man was acting he ought to, and I think a lot of what I am saying has occurred within the courtroom. Certain of it has not and that deals with, as I said, these personal conversations I have had where he has shown delusions of persecution, but a number of the rest of it has actually occurred within your sight.
      MR. LARREW: Judge, at this point we see nothing like that that would suggest the man is ready to commit suicide or anything like that. His behavior may very well be calculated to accomplish exactly what he is trying to do right now. For that reason I don’t think there’s enough or anything before the court to make a determination that he is unfit to stand trial.
      MR. HARRIS: I’m not saying it couldn’t be accomplished within a day. There is a "Bliss” and there is "Arsenal Street” and if they have available doctors normally it takes about two hours to make one of these competency examinations. I don’t know there are available doctors.
      THE COURT: Well, in the first place we all know that that is a little absurd. I’m sure we couldn’t get him examined—
      MR. HARRIS: I don’t know the schedules.
      THE COURT: — today. Well, from past experience we know that would be well-nigh impossible.
      MR. HARRIS: Okay.
      THE COURT: As far as his behavior in the courtroom. I haven’t really seen anything that I would consider extremely bizarre about it. I don’t know whether Mr. Williams is thinking about an appeal or about a 27.26 Motion later on or not. He may be.
      MR. HARRIS: He may be.
      THE COURT: But certainly, I don’t think that his behavior has been what I would consider bizarre, so I’m going to overrule the motion at this time.
      MR. HARRIS: Okay. Okay
      THE DEFENDANT: Your Honor, may I speak?
      THE COURT: Yes. You want this on the record?
      THE DEFENDANT: Yes. Any comment Mr. Harris had pertaining to my case, I would like it to be known he is acting solely on his own as an officer of the court and not in my behalf.
      THE COURT: I think you have made it pretty clear that you don't intend for him to act in your behalf.
      THE DEFENDANT: Yes, sir. Thank you.
      THE COURT: Okay.
      THE DEFENDANT: Thank you.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MERCANTILE BANK & TRUST COMPANY, Respondent, v. Mrs. Donald FITZPATRICK, Appellant.
    No. WD 35050.
    Missouri Court of Appeals, Western District.
    Dec. 4, 1984.
    George H. Barr, Kansas City, for appellant.
    Jim Tom Reid, Kansas City, for respondent.
    Before TURNAGE, C.J., MANPORD and BERREY, JJ.
   ORDER

PER CURIAM.

This is an appeal from a judgment against a guarantor for monies due upon a promissory note. Judgment affirmed.

Rule 84.16(b).


author: CRIST, Presiding Judge.

text:
    SCULLIN STEEL COMPANY, Appellant, v. Samuel WHITESIDE, Respondent.
    No. 48433.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 25, 1984.
    Motion for Rehearing and Transfer Denied Nov. 20, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    Gilbert D. Connor, St. Louis, for appellant.
    Terry B. Crouppen, St. Louis, for respondent.
   CRIST, Presiding Judge.

This is an appeal by Scullin Steel Company, employer, from a judgment of the Circuit Court of the City of St. Louis affirming the final award of the Labor and Industrial Commission of Missouri in a Worker’s Compensation case. The Commission sustained the Administrative Law Judge’s Award of $27,086.30 for permanent partial disability, temporary total disability and medical expenses to Samuel Whiteside, claimant. We affirm.

Employer contends there was insufficient evidence to warrant the award. At issue is whether claimant’s accident arose out of and was sustained in the course of his employment. In our judgment, it was sufficiently work-related.

On May 15, 1980, Samuel Whiteside, a union shop steward at the company, was shot twice, once in the back and once in the neck, by Robert Branscomb, a fellow employee. The shooting occurred at 7:00 a.m. outside the plant. Accompanying Bran-scomb was Louise Washington, also an employee. The previous day, Washington had argued with Whiteside and had accused him of striking her. Washington told Branscomb, her boyfriend, that Whiteside had hit her. As the pair approached White-side on the morning of May 15th, she urged Branscomb to shoot and kill Whiteside. Whiteside denied ever having hit Louise Washington.

The argument between claimant and Louise Washington arose on May 14, 1980, over a grievance of Washington which claimant, in his capacity as shop steward, presented to the foreman. In response, the foreman criticized Washington’s performance and suggested that she not file the grievance. Claimant relayed the foreman’s criticism to Washington. Angered by the remarks, Washington hurled obscenities at claimant. He lunged for her, but was restrained. Claimant stated that she hit him. Later that day Washington claimed that Whiteside struck her. The two had never socialized or quarreled previously.

At 5:00 p.m. that same afternoon, claimant received a telegram notifying him that he was suspended and that a hearing would be held at 1:00 p.m. the following day, May 15, 1980. At 7:00 a.m. the morning of the 15th, claimant arrived at the plant to see whether his hearing could be held earlier. It was common for the union to request an earlier hearing time. Claimant hoped to work a full day. If the hearing could not be rescheduled, he intended to wash his work clothes.

Claimant was standing amid train tracks within 25 feet of the plant door, off company premises, but on the only path into the plant, when Louise Washington and Robert Branscomb approached. Upon hearing the threats to his life, he turned his back and moved away towards his car. Thereupon, Branscomb shot him twice.

Assaults which are the outgrowth of the frictions of employment are compensable. Liebman v. Colonial Baking Company, 391 S.W.2d 948, 951 (Mo.App.1965); Keithley v. Stone & Webster Engineering Corporation, 226 Mo.App. 1122, 49 S.W.2d 296 (1932). An injury suffered by an employee stemming from activities of mutual benefit for employer and employee arises out of and in the course of employment. Blatter v. Missouri Department of Social Services, 655 S.W.2d 819, 823 (Mo.App.1983); Wamhoff v. Wagner Electric Corporation, 354 Mo. 711, 190 S.W.2d 915, 919 (banc 1945). The activities of a union steward are mutually beneficial to labor and management, and injuries related to their performance are generally held compensable. 1 A. Larson, The Law of Workmen’s Compensation § 11.12, at 3-160 (1982); Repco Products Corp. v. Workmen’s Compensation Appeal Board, 32 Pa.Cmwlth. 554, 379 A.2d 1089, 1092 (1977).

In this case, an argument arose over a grievance which claimant handled in his position as union steward. Claimant had no personal quarrel either with Louise Washington or with Robert Branscomb. The assault resulted directly from claimant’s union duties.

That the shooting occurred off the employer’s premises does not defeat the claim. Hazards of employment may spill over boundary lines and extend the zone of employment danger. 1 A. Larson, The Law of Workmen’s Compensation § 15.31, at 4-53 (1982); Freire v. Matson Navigation Co., 19 Cal.2d 8, 118 P.2d 809 (1941). Claimant was entering the plant by the normal route taken to reach his place of employment. His purpose was work-related. Injuries sustained by an employee while going to or from work can be com-pensable “where the off-premises point is on the only route or the normal route that employees must take to get to their employment and there exists a special hazard, one to which the employee is exposed by reason of the employment, to which the general public is not subjected.” Beck v. Edison Brothers Stores, Inc., 657 S.W.2d 326, 328 (Mo.App.1983). Here the “special hazard” was Louise Washington and Robert Branscomb.

In Feuchtbaum v. Simwitz Bros. Trucking Co., 28 A.D.2d 575, 279 N.Y.S.2d 416 (1967), a union steward was assaulted by two fellow workers, angered by a union-related decision. The assault occurred after hours and across the street, off employment premises. The court affirmed the Workmen’s Compensation Board's conclusion that claimant “had not separated himself from the animosities and danger of employment at the time he was assaulted.” Feuchtbaum, supra, 279 N.Y.S.2d at 417.

In this case, claimant was nearing the work place the morning before his hearing when his co-workers approached. The assault occurred within the “period of a reasonable margin of time and space” associated with his duties at the plant. See Zahn v. Associated Dry Goods Corp., 655 S.W.2d 769, 773 (Mo.App.1983).

Judgment affirmed.

REINHARD, C.J., and PUDLOWSKI, J., concur.


author: KENNEDY, Presiding Judge.

text:
    Leon MANNING, et al., Respondents, v. ABC EXTERMINATORS, INC., Appellant.
    No. WD 35191.
    Missouri Court of Appeals, Western District.
    Sept. 25, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Philip E. Nonnemaker, Kansas City, for appellant.
    Justin J. Johl, Kansas City, for respondents.
    Before KENNEDY, P.J., TURNAGE, C.J., and NUGENT, J.
   KENNEDY, Presiding Judge.

Defendant appeals from a judgment based upon an adverse jury verdict for $11,000 actual damages and $5,000 punitive damages, based upon plaintiffs’ claim of defendant’s fraudulent misrepresentation of the extent of termite damage in a house plaintiffs had contracted to purchase.

We affirm the judgment.

The background facts are as follows:

Plaintiffs had contracted to purchase for $51,000 a house located at 3236 Windsor in Kansas City, Missouri. The contract provided for the seller to furnish to the buyer, prior to closing, an inspection report from a licensed termite control company with respect to termite infestation of the house. The contract provided that, should termite infestation be discovered, the seller would repair any termite damage up to $250. It provided further that the contract would be null and void if the necessary repairs exceeded $250 in cost and the seller and the buyer could not agree on payment for such repairs.

The real estate agent handling the sale of the property for the sellers contacted ABC Exterminators, Inc. ABC was a professional termite control firm. ABC inspected the property on February 21, 1980. Mrs. Manning, one of the buyers and plaintiffs, got an oral report (relayed by the real estate agent) of the results of the inspection. She called the ABC office on the telephone. She indicated a purpose to get a second opinion on the extent of the termite damage but was assured that it was not necessary. She was told, too, that ABC had treated the house for termites.

Mrs. Manning insisted upon having a written report of the termite inspection before closing. The report was handed to the buyers by the real estate agent before the closing on the same morning. It read as follows:

February 26, 1980
TERMITE INSPECTION REPORT
Victor-Ross Realty
6618 Independence
Kansas City, Missouri 64125
VA
Re: 3286 Windsor
Kansas City, MO 64123
Dear Sir:
Based on a careful visual inspection of accessible areas and on sounding of accessible structural members, there is no evidence of termite or other wood destroying insect infestation in the subject property, and, if such infestation previously existed, it has been corrected and any damage due to such infestation has also been corrected or alternatively has been fully disclosed as follows:
Evidence of termite infestation was found in partition, door casing and studs. In our opinion does not appear to be structurally damaged.
The residence has now been treated for the infestation with a one year guarantee against reinfestation.
Very truly yours,
A.B.C. Exterminators, Inc.

There seems to be no argument that all the parties understood that the “partition, door casing and studs” mentioned in the report referred to a basement coal bin. Mr. and Mrs. Manning intended to remove the coal bin so they were not concerned with damage to that structure.

They proceeded with the closing of the contract and in due time moved into the house. After living in the house about seven months, Mr. Manning was installing water and gas lines in the basement for a washer and dryer. He was unable to attach brackets to the ceiling because the screws kept falling out. He and Mrs. Manning, with flashlight and screwdriver, then discovered that a screwdriver would go through the wood of the subflooring. They then discovered mud tunnels and rotten and corroded wood in the subfloor and floor joists.

The trial evidence substantiated in fairly conclusive fashion that there was extensive termite damage, including structural damage, beyond the damage to the coal bin members as shown in the report. The damage was in accessible areas, unobstructed in any way. Mr. Micelli, a carpenter, who testified in the plaintiffs’ behalf, said that the cost of repair of the visible damage would be $4,500 and more than that if more damage was revealed when the damaged subflooring and floor joists were removed.

There was evidence also that there had been no termite treatment done on February 26 or before, as represented in the report and as represented by the unidentified person with whom Mrs. Manning talked on the telephone at the ABC office. There was evidence that the treatment was done on February 28, the day. after the February 27 closing.

The case was submitted to the jury upon an instruction which directed a verdict for the plaintiffs if they found that “defendant represented to plaintiffs that termite infestation was found only in the partition, door casing and studs at the residence and that the residence had been treated for infestation as of February 26, 1980”; defendant’s intent that plaintiffs rely upon the representation; the representation’s falsities; defendant’s knowledge of the statement’s falsity; the materiality of the representation; plaintiffs’ reliance thereon; plaintiffs’ ordinary care in relying upon the statement; and plaintiffs’ damage. The instruction was patterned upon MAI 23.05.

The jury, as noted above, returned a verdict for plaintiffs against the defendant for $11,000 actual damages and $5,000 punitive damages.

The operative elements of a fraud case are as follows:

It is plaintiffs’ burden to establish each of the elements of fraud in order to recover. Those elements are: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or his ignorance of the truth; (5) the speaker’s intent that his statement be acted upon; (6) the hearer’s ignorance of the falsity of the statement; (7) his reliance on the truth of the statement; (8) the hearer’s right'to rely on the statement; and (9) the hearer’s consequent and proximate injury.

Weaver v. Travers, 631 S.W.2d 81, 83 (Mo.App.1982), quoting Cantrell v. Superior Loan Corp., 603 S.W.2d 627, 634 (Mo.App.1980).

I

The sufficiency of the evidence to show the presence of the termite damage and the actual falsity of the ABC report are not challenged by ABC. It claims, though, that the evidence was insufficient to show that ABC made the misrepresentation “with intent to deceive”, and that the evidence was insufficient to show that ABC “knew that the facts contained in the report were false”.

Defendant cites Weaver v. Travers, supra, as a case “on all fours” within the present one. In Weaver it was held that plaintiff failed to show defendant’s knowledge of the falsity of the representation and so failed to make a submissive case of fraud against the defendant. In the case before us, though, unlike Weaver, the ABC employee who actually made the inspection testified that he saw the evidence of termite infestation in the subfloors above the coal bin. He further testified that the infestation was such that the wood was soft enough that he could stick his probe into the wood. (Paradoxically, he testified “that there was infestation; no damage, just what I call infestation.”)

We hold that the evidence was sufficient to submit to the jury the defendant’s knowledge of the falsity of its termite inspection report.

II

Defendant then says that the evidence was insufficient to show that the representation was material to the plaintiffs, and that they relied upon the same in proceeding to close the sale. Under this head the defendant points to conduct of the plaintiffs which indicates, so defendants argue, that plaintiffs were actually unconcerned and indifferent to the presence of termite damage. First, defendant says that since the plaintiffs did not take advantage of the sales contract provision for the repair of the minor termite damage that was reported, plaintiffs were indifferent to the presence of termites and did not rely upon the report in proceeding to close the sale. That, anyway, is how we understand the argument. We are unable to follow defendant’s reasoning. Mrs. Manning explained that they planned to remove the coal bin and cared nothing about having the damage to the coal bin structure repaired. We do not consider this failure to require the sellers to repair the damage described in the report to indicate that plaintiffs were indifferent to termite damage in general, no matter how extensive it was. Mrs. Manning testified that being informed about the extent of the termite infestation was a matter of importance to her, a statement which is borne out by her telephone call to ABC before closing, her proposal to get a second opinion when she learned there was some termite damage, and her insistence upon the written report before closing.

Defendant points to testimony of Mrs. Manning that she made no inquiry of the sellers or of the real estate agent about termite damage in her visits to the house before contracting to buy it. It points also to the testimony of Mr. Manning that he had been to the basement with one of the sellers, Mr. Brocato, who had pointed out the damage which was described in the ABC report. The damage pointed out to him was minor, Mr. Manning said. He did not look at the subfloor above. It was dark up there between the floor joists, he said, and he had no flashlight at the time. Mr. Manning’s visit to the basement, it should be noted, was after the sale had been closed.

We do not agree with the defendant that any conduct of the plaintiffs indicated that termite damage to the house was immaterial to them. But if any of their conduct could be so interpreted, there was evidence also to show that the presence of termite damage was a material matter and that they relied upon the ABC report in proceeding to close the sale.

We hold that the evidence was entirely sufficient to show prima facie the materiality of the defendant’s representation to the plaintiffs with respect to the extent of the termite damage, and that plaintiffs relied on the representation.

Ill

Plaintiffs’ verdict-directing instruction required a finding that “defendant represented to plaintiffs that termite infestation was found only in the partition, door casing and studs at the residence and that the residence had been treated for infestation as of February 26, 1980”. Appellant says the evidence does not support the submission of the falsity of the second part of the representation, namely, that the residence had been treated for infestation as of February 26, 1980.

When Mrs. Manning spoke with the ABC office on February 26, according to her testimony, she was told that the property had already been treated. That representation was also contained in the February 26 written report which is copied earlier in the opinion. Defendant cites us to a case which holds that when two propositions are submitted to the jury in the conjunctive, there must be evidence to support both of them. Knepper v. Bollinger, 421 S.W.2d 796 (Mo.App.1967). The proposition is undeniable, but there was evidence that the house had not been treated on the 26th, and in fact was not treated till the 28th, the day after the closing. The fact that there was also evidence that it had been treated before the 26th does not render the fact insubmissible. It simply created a fact issue for the jury to decide.

We hold that the evidence supported the submission of the falsity of defendant’s representation of the extent of the termite infestation and the fact that the residence had been treated on February 26 or before.

IV

Defendant further says that the use of the word “only” in that portion of the verdict-directing instruction quoted earlier in this opinion was argumentative, and gave “undue prominence to a particular fact”. There is nothing to this contention.

V

The defendant says the trial court erred in permitting Mr. Manning and Mrs. Manning to testify as to the difference in value between the house with the termite damage as represented by defendant in its report, and its value with its actual condition. Both of them testified that the value of the property with the minor damage described in defendant’s report was $51,-000, but that its actual value, considering the unreported termite damage, was $40,-000. Defendant in his point on appeal complains of such testimony, not on the basis of their lack of expert qualifications to testify as to the value of the property, but

for the reason: (a) the report by the defendant did not cover damage due to infestation which was not accessible by visual inspection or sounding of accessible structural members and such testimony of the plaintiffs included all damage whether seen or not and hence the opinions of the plaintiffs were improper and prejudicial, as to any element of damage sustained by plaintiffs.

No such objection was made at trial. At trial the only objection was to plaintiffs’ qualifications as experts to express an opinion as to the value of the property. Defendant cannot attack the testimony here on a ground different from that on which he objected to the testimony in the trial court. Walker v. Woolbright Motors, Inc., 591 S.W.2d 289, 291 (Mo.App.1979).

VI

Defendant complains of the damage instruction, which gave as the major damages “the difference between the actual value of the residence on the date it was sold to plaintiffs and what its value would have been on that date had the residence been as represented by defendant”. It is patterned after MAI 4.03. Defendant’s criticism of the instruction is that there was “no evidence which would indicate that the defendant had stated any representation concerning the value”. Defendant does not develop this argument, and does not cite any authority to support its position. We are unable to see any merit in the point.

The point is disallowed.

VII

Defendant complains of the punitive damage instruction as varying from MAI 10.01, which became effective January 1, 1983. The variations are inconsequential and could in no way have prejudiced defendant.

The point is disallowed.

Judgment affirmed.

All concur.


text:
    Onyeabo EMEFIENA, Plaintiff-Appellant, v. PARK COLLEGE, Defendant-Respondent.
    No. WD 35549.
    Missouri Court of Appeals, Western District.
    Sept. 25, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Stanley L. Wiles, Kansas City, for plaintiff-appellant.
    Ed Dougherty, Kansas City, for defendant-respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   KENNEDY, Presiding Judge.

This is an appeal by plaintiff from the trial court’s dismissal of plaintiff’s petition for damages against Park College, on the ground that plaintiff’s claim was barred by the statute of limitations. We affirm the judgment.

The petition alleged that an agent of the defendant college in undertaking to collect $1,200 owed by plaintiff to the college had threatened to shoot him or to have the police shoot him. This threat, according to the petition, induced such emotional distress upon plaintiff, a Nigerian exchange student, that he was hospitalized for mental ailments for a two-week period and continued after that to suffer emotional problems. The tort was alleged to have occurred in June 1977, sometime before the 24th day thereof.

The present suit was commenced by filing a petition in Platte County Circuit Court on August 8, 1983, well beyond the five-year statute of limitations, § 516.120, RSMo 1969. The statute of limitations would have run its course on June 24, 1982.

Plaintiff says, however, that the statute of limitations period was extended first by a period of “insanity”, during which he was a patient at Tri-County Mental Health Center in North Kansas City, Missouri, § 516.-170, RSMo 1969; and second, by a period of the pendency of an abortive lawsuit filed in Jackson County, filed on July 8, 1982, and voluntarily dismissed by plaintiff on September 16 of the same year (plus one year), § 516.230, RSMo 1969. If both extensions contended for by plaintiff are available to him, the statute of limitations would extend to September 16, 1982. As noted above, the plaintiff’s lawsuit was commenced on August 8, 1983.

We will assume that the petition sufficiently alleges, as against a motion to dismiss for failure to state a cause of action, that he became “insane” as a result of defendant’s alleged wrongful act, and that the 14-day period of his alleged insanity extended the statute of limitations by that length of time. See 54 C.J.S. Limitation of Actions § 242 (1948); Jaime v. Neurological Association of Kansas City, 488 S.W.2d 641, 643-44 (Mo.1973). Making that assumption, the original lawsuit, filed on July 8, 1982, was filed in time, i.e., within five years plus the 14-day period of insanity.

The next and dispositive question is whether the statute of limitations was extended by the period of the pendency of the abortive Jackson County lawsuit, plus one year. The statute upon which plaintiff relies, § 516.230, RSMo 1969, provides as follows:

If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed....

Plaintiff says he comes within that statute. He filed his ease in the wrong forum — in Jackson County, Missouri, where there was no venue; he “suffered a non-suit” on September 16, 1982; therefore, he had one additional year — until September 16, 1983 — in which to file his lawsuit within the limitations period.

Defendant counters that plaintiff was negligent in filing his lawsuit in the wrong forum, and that a plaintiff who negligently filed his lawsuit in the wrong forum may not take advantage of the extension provided by said section 516.230.

Since the trial court considered matters outside the face of the pleadings, we treat the defendant’s motion to dismiss as a motion for summary judgment and we treat the court’s order of dismissal as a summary judgment in defendant’s favor. Rule 55.27(b).

We take from plaintiff’s brief his explanation for the mistaken filing of his original lawsuit in Jackson County:

Certain things should be said on behalf of Plaintiff’s attorney in this case concerning this allegation that Plaintiff was negligent in not filing this case in Platte County, Missouri were (sic) proper venue lies on this case. First of all, Platte County is a county of a county that is contiguous or very close to Jackson County, Missouri. Plaintiff’s attorney was frankly unaware that Park College was located in Platte County, Missouri. Second, when Plaintiff came to Plaintiff’s attorney to request that Plaintiff’s attorney file this current lawsuit on behalf of the Plaintiff, Plaintiff came to see Plaintiff’s attorney after July 1, 1982, and Plaintiff’s attorney in researching the Statute of Limitations in Missouri on this case knew that the lawsuit had to be filed on or before July 8, 1982, or Plaintiff’s lawsuit was subject to being dismissed for failing to comply with Missouri’s Statute of Limitations under Section 516.120. [Emphasis in original.]
It is the contention of the Plaintiff and Plaintiff’s attorney that the Plaintiff acted in good faith in filing this action in that Platte County, Missouri, is contiguous and/or very close to Jackson County, Missouri, and thus is somewhat similar to the Wente case, supra. Plaintiff’s attorney was under a time limitation in that he knew that he had to file this lawsuit within just a few days of Plaintiff coming to Plaintiff’s attorney to hire Plaintiff’s attorney to represent Plaintiff in this action. Plaintiff’s attorney states that he did act in good faith and really thought that Park College was located in Jackson County, Missouri. Plaintiff’s attorney did not have time to make inquiry that he would otherwise have made as to what county Park College was located in. Plaintiff’s attorney did not even have time to find out who the Defendant’s Service Agent was in Missouri.
Furthermore, Defendant, if the Defendant had wanted to do so, could have defended the action in Jackson County, Missouri, since the Jackson County, Missouri, Circuit Court would have jurisdiction to hear the case. Plaintiff’s cause of action against the Defendant was a good cause of action and not a void cause of action as in Mertens case, supra. Because of the time limitations on the Plaintiffs attorney and the fact that Park College was located in a county contiguous to Jackson County, Missouri, and very near Jackson County, Missouri, Plaintiff states that he has made an innocent mistake and has acted in good faith in filing the action originally in Jackson County, Missouri, and thus he should be granted the benefit of the tolling statute of Section 516.230.

We reject plaintiff’s argument as excusing his failure to ascertain that Jackson County was not the proper venue, and hold as a matter of law that plaintiff’s negligence in filing his original lawsuit in Jackson County, rather than in Platte County, deprived him of the time extension provided by Section 516.230. We quote the applicable criterion from Phillips v. Whittom, 354 Mo. 964, 192 S.W.2d 856 (1946):

The rule announced in the Wente case is that if the plaintiff makes an “innocent mistake” in filing his previous action he will not be denied the benefit of the tolling provision of the statute. And a New York decision ... is cited, which makes the criterion “good faith” .... Good faith, however, generally imposes a duty on the obligor to use reasonable diligence — the diligence that an honest man of ordinary prudence is accustomed to exercise.... The defendant in the litigation also has some rights, and is entitled to complain of an unreasonable and unjust abuse of the process of the courts. Hence the Wente and Krueger cases, supra, both recognize that the negligent bringing of a void action will not toll the statute of limitations if the plaintiffs negligence be great enough. [Citations omitted; emphasis in original.]

192 S.W.2d at 857.

Plaintiff says that his mistake was an innocent mistake, made in good faith, and that his negligence was only slight, from which he argues that he is entitled to the benefit of the statutory extension. He relies upon Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947 (Mo.1943), where the court held that the plaintiffs negligence, if any, was slight in filing plaintiffs case in St. Louis City instead of St. Louis County where both the plaintiff and the defendant resided. Id. at 169 S.W.2d at 954. The plaintiffs attorney in Wente had consulted a recently published telephone book from which he had concluded that defendant resided in St. Louis City. This conclusion, although wrong, was apparently considered by the Missouri Supreme Court as a reasonable good faith mistake. The Supreme Court of Missouri reversed the trial court, which had dismissed plaintiffs petition as being barred by the statute of limitations. The Wente case is much different from the case before us, where the plaintiffs attorney simply made no inquiry or investigation at all, and where, if he had made the slightest inquiry, would have found that Parkville and Park College were not in Jackson County.

The case before us is unlike a case against an individual of uncertain address, or against one who might on any given day be found in the county of plaintiffs residence. This was a suit against a defendant of a certain and unchanging location. In any Missouri law office, or certainly in any Jackson County law office, would be several reference sources which would show Parkville to be outside Jackson County. A telephone call to one of many reference sources would quickly give the correct location of Parkville and of Park College. That plaintiffs attorney had “only a few days” to file the suit after plaintiff employed him does not excuse his failure to ascertain what might have been ascertained in five minutes. For that matter, the fact that plaintiff authorized his attorney to file suit only within days of the expiration of the statute of limitations period was the plaintiffs fault. Plaintiff did not exercise reasonable diligence as required by Phillips v. Whittom, supra, and the statute of limitations was not extended by the period of the pendency of the lawsuit in Jackson County and by the additional year accorded by Section 516.230.

Plaintiff points out, still seeking to bring himself within Section 516.230, that the defendant might have waived venue and filed an answer in the Jackson County Circuit Court. Plaintiff does not claim, though, that he was relying on any reasonable anticipation that defendant would waive venue when he filed the case in Jackson County, and the fact is the defendant did not waive venue. This argument does not help the plaintiff. A similar argument was made in Conrad v. McCall, 205 Mo.App. 640, 226 S.W. 265 (1920) and was rejected.

Judgment affirmed.

All concur.


author: LOWENSTEIN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. John S. GARCIA, Appellant.
    No. WD 34438.
    Missouri Court of Appeals, Western District.
    Sept. 25, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      James W. Fletcher, Public Defender, Sean D. O’Brien, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., David C. Mason, Asst. Atty. Gen., Jefferson City, for respondent.
    Before LOWENSTEIN, P.J., and MAN-FORD and BERREY, JJ.
   LOWENSTEIN, Presiding Judge.

John S. Garcia appeals from a jury verdict of guilty of second degree arson. The jury recommended a sentence of seven years and a $5,000.00 fine. The trial court sentenced him to seven years. The defendant does not challenge the sufficiency of the evidence to support the jury verdict.

On August 26,1979 fire damaged Scarlet O’Hara’s, a bar-discotheque in Kansas City, Missouri. From the evidence discovered, the city’s Arson and Bomb Unit concluded that the fire had been intentionally set.

The defendant had been the general manager of Scarlet O’Hara’s and had personally invested between $15,000.00 and $18,-000.00 in the business at the time of the fire. The building and contents were insured for $317,860.00 and a claim was filed after the fire. In May, June and July of 1979 income of the business bank accounts were closed because of numerous overdrafts. At the time of the fire Scarlet O’Hara’s owed $5,197.95 to liquor wholesalers, some of whom were promised payment out of the insurance proceeds.

The state’s chief witness, Gerald Hopkins, was a good friend of the defendant, and worked part-time at Scarlet O’Hara’s and part-time as a printer. After being arrested for counterfeiting in July 1980, Hopkins negotiated a deal with federal authorities whereby he would testify against the defendant on this arson charge in exchange for probation on the counterfeit charge and a guarantee he would not be incarcerated for arson. At about the same time, the defendant entered a guilty plea for possession of counterfeit currency.

Hopkins testified that he was with the defendant at the bar on the night in question, and that the defendant told him he was “going to burn the mother_” Then Hopkins agreed to act as lookout while the defendant set the fire. After-wards the two men walked to the defendant’s apartment where the defendant remarked that the fire “should really be going by now.”

The defendant’s first contention is that the trial court erred in permitting testimony by Hopkins that there was fear among people who worked at Scarlet O’Hara’s that “because of the clientele we had, the place might be bugged from time to time.” Hopkins said this in response to the prosecutor’s question about why the defendant and Hopkins went into the alley by the bar to discuss burning the building. This court held in State v. Pilchak, 655 S.W.2d 646 (Mo.App.1983) that in order to invoke the rule that evidence which tends to prove other crimes is inadmissible, there must be evidence that the defendant has committed, or has been accused of, charged with, convicted of, or been definitely associated with another crime or crimes. The statement of Hopkins did not imply that the defendant was a criminal, either personally, or as the bar’s manager; at most it implied that the bar’s customers might be associated with crime. Therefore the defendant’s contention is without merit.

When the state’s witness, Hopkins said from the stand he had not seen the defendant, “since he was sent to jail on the counterfeiting,” Garcia moved for a mistrial. The request was denied. The jury was instructed to disregard the answer — Garcia contends this relief did not cure the prejudicial effect of the remark. The lawyers had agreed prior to trial to avoid any reference to the counterfeiting matter. A decision had not been made as to whether Garcia would testify in his own behalf. Garcia says once the “cat was let out of the bag” by Hopkins on the prior conviction, it affected his decision so that he was forced to testify and could not remain silent.

There is no contention but that the statement was volunteered by the witness and was not responsive to a prosecutor’s question. The defendant’s point on appeal doesn’t come right out and say this testimony alone changed his strategy on taking the stand. He links this statement to the presentation to the jury of the “wiretapping” or bugging in point one, supra, and of the being “caught red handed,” discussed in the next point as influencing his right to waive the right to not testify. The point is not well taken. The evidence here was not admissible, but the trial judge promptly took action to cure the effect. The trial judge’s decision to not grant a mistrial will be sustained absent an abuse of discretion. In State v. Warden, 591 S.W.2d 170, 172 (Mo.App.1979) the court said:

However, where a state’s witness volunteers an unresponsive reference to yet another unrelated, separate and distinct crime, such reference may or may not constitute reversible error. In this respect, the trial court’s decision to grant or not to grant a mistrial due to such an unresponsive reference is paid great deference, primarily because that court occupies a superior position from which to gauge the remark’s prejudicial effect.

See State v. Ford, 623 S.W.2d 574, 576 (Mo.App.1981); State v. McClain, 531 S.W.2d 40, 41-42 (Mo.App.1975). A similar statement was involved in State v. Dennison, 428 S.W.2d 573 (Mo.1968). The court there said at page 577:

Where improper evidence comes into a case but is promptly stricken by the court and the jury is instructed to disregard it, the reviewing court, in order to hold that the failure to grant a mistrial was reversible error, must determine and conclude as a matter of law from the entire record that the error was prejudicial and so impressive that its effect was not removed by the action of the trial court.

There is no reversible error here.

The defendant next claims error in his failure to get a mistrial declared for question by the state of him on cross-examination. On direct examination by Garcia’s attorney, he admitted his prior conviction on counterfeiting charges. He was then asked by his attorney, “why was it that you pled guilty,” to which he answered, “because I was guilty.” On cross-examination he again acknowledged he had entered the plea because he was guilty and was then asked:

Q. Now, isn’t it true, Mr. Garcia, that another reason you pled guilty is because you were caught red-handed with the counterfeit charges?
Defense Counsel: Objection, Your Hon- or. May we approach the bench, please?
[The following proceedings were had AT THE BENCH]:
Defense Counsel: At this point in time we’re going to be dealing with the conviction, and I would request the Court to declare a mistrial.
THE COURT: Overruled.
Defense Counsel: And I would ask the Court sustain my objection to counsel’s question.
THE COURT: Overruled.
[The following proceedings returned to OPEN COURT]:
Q. We’re going into the reason as to why you pled guilty on the counterfeit charges—
A. Okay.
Q. —and could you tell the members of the jury whether at the time you were arrested on the counterfeit charges, you were found with the counterfeit bills in your possession.
A. Yes, I was caught red-handed.

Garcia contends the “caught red-handed” questions went beyond impeachment or using the convictions to affect his credibility. Sections 491.050 and 546.260 RSMo. State v. Giffin, 640 S.W.2d 128, 132 (Mo.1982). He notes the prosecutor should not be allowed to ask the accused of the details of those crimes which led to the convictions, but can go into the nature, dates and places of the occurrences and the sentences that resulted. State v. Sullivan, 553 S.W.2d 510, 515 (Mo.App.1977). The defendant says this questioning unduly emphasized the prior conviction so as to suggest guilt on the present charge. State v. Sanders, 634 S.W.2d 525, 527 (Mo.App.1982).

Under the facts here, the prosecutor did not ask a series of questions by reading from a prior information. Sanders, supra, at 528. Here the defendant on direct invited the questions asked by the state. He left the impression that he entered a plea when he was guilty and that he was innocent, when as here he did not enter a plea. In any event, the questions here did not go into such detail as to the prior conviction to warrant a mistrial. State v. Woods, 637 S.W.2d 113, 119 (Mo.App.1982).

The defendant’s fourth contention is the failure to record the grand jury testimony and provide a copy to the defendant under Rule 25.03(A)(3) was a per se violation of the defendant’s discovery rights. However, in State v. Greer, 605 S.W.2d 93 (Mo.App.1980) the Missouri Supreme Court held that there is no requirement to record grand jury proceedings. Defendant contends that because the Federal Rule of Criminal procedure 6(e)(1) has been amended since Greer to require recording in every case, this court should change the Missouri rule.

In State v. Thomas, 674 S.W.2d 131 (Mo.App.1984), a case decided since the Federal rule change, the court reaffirmed Greer stating that “the Supreme Court recognized that in some states, by court rule or statute, the recording of grand jury testimony is mandatory, but that in Missouri, as well as most other states, the trial court has the discretion to order the transcription of grand jury proceeding, but is not required to do so.” The Thomas court said the appellant failed to demonstrate an abuse of discretion in the trial court’s denial of his motion to record and transcribe the testimony before the grand jury. The same is true in this case; this point is ruled against the defendant.

The defendant’s final contention is that the trial court abused its discretion by failing to reduce the defendant’s jail time. This court held in State v. Rule, 543 S.W.2d 325, 326 (Mo.App.1976) that there must be a “showing that passion and prejudice of the jury in its sentencing function so clearly appears from the record that the trial court abused its discretion in declining to reduce punishment.” Here the trial court did reduce the punishment by eliminating the $5,000.00 fine. The evidence was overwhelming that the defendant was guilty of arson, and the seven year sentence was not unreasonable. His point is denied.

While none of the defendant’s points individually show an abuse of the trial court’s discretion, even if there were error, the cumulative effect would result in no prejudice to the defendant to warrant a new trial.

All the points are denied. The judgment of conviction is affirmed.

All concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. John GUNN, Appellant.
    No. WD 35332.
    Missouri Court of Appeals, Western District.
    Sept. 25, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    Thomas J. Marshall, Public Defender, Moberly, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   ORDER

PER CURIAM:

This is a direct appeal from a jury convic- ■ tion for three separate sales of controlled substances within the meaning and in violation of Sections 195.240 and 195.020, RSMo 1978.

The judgment is affirmed. Rule 30.25(b).


author: CLARK, Presiding Judge.

text:
    Robert E. PORTER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35486.
    Missouri Court of Appeals, Western District.
    Sept. 25, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      James Fletcher, Public Defender, Kevin Locke, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before CLARK, P.J., and DIXON and LOWENSTEIN, JJ.
   CLARK, Presiding Judge.

Appellant was convicted by a jury of the offenses of murder in the second degree and first degree assault. The convictions were affirmed on direct appeal. State v. Porter, 640 S.W.2d 125 (Mo.1982). In this proceeding under Rule 27.26, Porter sought to set aside the judgment and consecutive life sentences on various grounds. The trial court denied relief. Porter now appeals contending in a single point of error that ineffective assistance of counsel at the criminal trial was demonstrated. Affirmed.

Because the claim of deficient representation by counsel is associated with the presentation of evidence, some review of the facts is necessary. From the testimony by the state’s witnesses, the jury in the case was entitled to find that on the evening of January 7, 1981, Porter went to the home of a neighbor, William Long, for the purpose of borrowing money. Porter had been a frequent visitor at the Long home in the past, had done some minor jobs for Long and had participated in dice and card games there. Long had advanced Porter small sums of money in the past.

As Porter was admitted to the house by Long, he found another neighbor, James Jones, also to be there. Long was at the time attempting to sell some objects in a garage type sale and Jones was looking at the merchandise. Jones had been a participant in the card and dice games in the past and was known to carry several hundred dollars in currency on his person. After exchanging some remarks, Porter asked Long for a loan. Long replied that he had no funds and Porter then made his request of Jones. The latter also declined saying he had no money to loan. Porter then moved to the front door of the residence, as if to leave, but before departing he turned toward Long and fired three shots from a revolver striking Long in the head, body and hip.

At this point, Long fell to a chair and closed his eyes feigning death in the hope Porter would not shoot again. While his eyes were closed, Long heard another shot fired followed by the closing of the front door. Before losing consciousness, Long used a telephone to call the police. Officers soon arrived and transported the victims to a hospital where Jones was pronounced dead. As a consequence, the only witnesses to the events in the Long home the evening of January 7 were Long and Porter. Consistently from his first interrogation by the police through his evidence at trial, Long named Porter as the assailant.

The only evidence presented at trial which linked Porter to the crimes was the testimony by Long described above. For his part, Porter denied the account by Long contending he was at a friend’s house, together with his girl friend, throughout the evening and until the next morning. Porter’s companions confirmed the alibi. Defense counsel attacked Long’s identification evidence by attempting to show that Long was an alcoholic and that his recognition of the assailant was suspect because of his intoxicated state the night of January 7. By Long’s own admission, he was accustomed to consuming eighteen beers a day, and on the night in question, he had drunk two shots of whiskey and was drinking his second beer when Porter arrived at his home.

The defense adduced evidence as to Long’s alcohol intoxication, not only from cross examination of Long, but from medical records at the hospital and from testimony by a physician and a police officer. The substance of that evidence was that Long had the odor of alcohol about him when he was taken to the hospital, that he exhibited withdrawal symptoms necessitating intravenous injection of alcohol, that he suffered from hallucinations and that he was incoherent when a police officer attempted to question him about the shooting. The strategy of the defense was to rely on Porter’s alibi and to cast doubt on Long’s identification evidence by suggesting that his intoxicated state precluded reliability.

At the hearing on the 27.26 motion, Porter contended that his trial attorney had failed to provide adequate representation in that counsel did not call Porter’s sister, Teresa, as a defense witness despite the fact that she had relevant and material evidence to supply. That evidence, described by both Porter and Teresa at the hearing consisted of a statement made to Teresa by Long subsequent to the crime. According to Teresa, she had engaged Long in a conversation and had inquired if he was certain it was Porter who had committed the offenses. Long had replied, “No, I can’t really say.” This was reported by Porter to defense counsel during trial preparation. The attorney told Porter the testimony would not aid his case and Teresa would not be endorsed or called as a witness. No testimony was available from the attorney to explain his decision because the attorney had died before the motion was heard.

On appeal, Porter contends his evidence in support of his Rule 27.26 motion was sufficient to sustain his burden of demonstrating ineffective assistance of counsel because the failure to call Teresa as a defense witness proved inexcusable neglect by the attorney. On this account he asserts that the decision of the trial court overruling his motion was in error.

At the outset, we reject the claim that the facts demonstrate attorney neglect. Whatever may be said of the attorney’s choice not to call Teresa, it was, by Porter’s own testimony, a decision made by the attorney in determining what would or would not be beneficial defense evidence. Porter stresses that the attorney reached a decision on the matter abruptly and without interviewing Teresa. Some cases have turned on incomplete investigation by defense counsel where leads to potential evidence were not pursued and where possible witnesses were not contacted. This is not such a case.

It is true the attorney did not contact Teresa to obtain first hand from her the content of her conversation with Long, but that was unnecessary to make a decision about using the witness. The account of Teresa’s conversation was brief and simple. The attorney was entitled to assume Teresa would be a willing witness and would repeat from the stand the same account given Porter. On the facts, the attorney decided Porter’s case would best be presented by not using Teresa’s testimony. Whether, in retrospect, the choice by the lawyer was flawed or sound, it was in all events a calculated decision in the composition of the defense presentation. The ease is distinguishable from those in which, by neglect, lethargy or ignorance, the defense attorney is charged to have failed to present defense evidence.

The cases have consistently held that selection of witnesses to be called is a matter of trial strategy. Franklin v. State, 655 S.W.2d 561, 565 (Mo.App.1988). Even if later shown to be wrong, a decision made as to trial strategy does not support a finding of ineffective assistance. Gentile v. State, 637 S.W.2d 30 (Mo.App.1982). These principles would seem to resolve the question here, but on closer analysis, they do not answer Porter’s assertion, first that there was no explanation of any reasoned basis for the attorney’s decision not to call Teresa, in the absence of testimony from him and, second, that the facts lead to no hypothesis suggesting any ground not to use the witness to aid the defense challenge to Long’s credibility. The briefs indulge speculation on the subject, but this is to no profit because the reasoning process used by the deceased attorney is incapable of reconstruction.

In Brame v. State, 597 S.W.2d 665 (Mo.App.1980), this court examined in detail the aspects of an ineffective assistance of counsel claim where counsel has made choices as to the conduct of the trial and presentation of the defense. It was there said:

“By the very nature of a criminal trial, a lawyer’s function is a continuing judgmental process. Choices are constantly presented for one alternative action or another, often in a shifting factual situation with little or no time for reflective thought before decision is required. * * Factors which influence those practical judgments are often subtle and not apparent on a cold record. * * * Likewise, in the setting of a criminal trial, the alternatives may be all bad.” Brame at p. 669.

The opinion holds that the constitutional requirement for effective assistance of counsel assumes inability of the accused to make the judgments as to alternate courses available in trial and therefore the decisions counsel makes are insulated from hindsight criticism by the client through the very nature of the client-attorney relationship.

Missouri case law has been in the forefront of developing trends in this area as is confirmed by the rationale adopted in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Justice O’Connor, writing for the court, described the limits upon post-hoc evaluation of counsel effectiveness in the following terms, which correspond to previous Missouri decisions on the subject:

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable, (citation omitted). * * * Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy’ (citation omitted).” Strickland 104 S.Ct. at p. 2065-66.

The court concluded in Strickland that strategic choices made by counsel with knowledge of the law, the facts and plausible options are “virtually unchallengeable.”

From the foregoing, we conclude that where a claim of ineffective counsel is raised in a post-conviction proceeding and the attorney conduct involves the exercise of a choice in the presentation of the defense or the procedures selected in trial, the claim must fail if, within a wide range of reasonable professional assistance, the choice may be considered sound trial strategy. Of necessity, each case must be evaluated on its facts. A strong presumption of right action, however, severely limits such ineffective assistance claims to the end that it will be the rare exception where a strategic choice is declared to have been unsound.

In the present case, the decision not to call Porter's sister as a witness was a choice of trial strategy made within the wide range of reasonable professional service to Porter by his attorney. The record fails to demonstrate otherwise or to persuade that Porter has overcome the strong presumption that the strategy was sound, notwithstanding the adverse verdict returned by the jury. This conclusion renders it unnecessary to speculate on grounds for the choice of strategy or to discuss the subordinate question of whether a demonstrably different result would have followed had the witness been called.

The judgment is affirmed.

All concur.