Kluck v. State9/28/2000
Appeal From: Circuit Court of Jasper County, Hon. Jon Dermott, Judge
Opinion Vote: AFFIRMED. Prewitt and Crow, JJ., concur.
Opinion:
AFFIRMED
This is an appeal from the denial, after an evidentiary hearing, of a Motion to Vacate, Set Aside or Correct the Judgment or Sentence filed pursuant to Rule 29.15. Don Kluck ("Movant") contends that, because of the ineffectiveness of trial and appellate counsel, he should have been granted relief from his jury conviction for the class A felony of second degree murder, section 565.021, for which he was sentenced, as a prior offender, to life in prison.
The underlying facts of this case were described by this Court when we affirmed Movant's conviction in response to his direct appeal, State v. Kluck, 968 S.W.2d 206, 206-07 (Mo.App. S.D. 1998). They are:
. . . [Movant] lived in Joplin with his girlfriend, Kelly Drury, and her children, Tiffany and Justin. On the evening of January 20, 1996, Ms. Drury was visiting with some friends in the kitchen of her home when she decided to go to the grocery store to buy some liquor. Ms. Drury went into the bedroom, where [Movant] was sleeping, and got some money out of [Movant's] coat. Around 11:00 P.M. she, her friends, and Tiffany went to the grocery store.
[Movant] woke up and came into the living room shortly after they returned from the store. Ms. Drury's friends left when [Movant], who apparently walked with crutches, slammed them on the floor. [Movant] then entered the kitchen, and began yelling at Ms. Drury, asking her where his money was. After a thirty-minute argument over the money, [Movant] hit Ms. Drury in the head with a liquor bottle, causing her head to bleed. Ms. Drury's children ran out of the house, but Tiffany went back inside to help her mother bandage her head. Tiffany had gone back outside and was talking to Justin when the children looked in a window and saw [Movant] come out of the bedroom with a gun in his hand. The children then went to the home of a neighbor, John Gabany, and called their father requesting that he pick them up. When Tiffany and Justin later went back home to get their things, Tiffany saw [Movant] sitting on a bed with a gun next to him.
Later that morning, [Movant] went to Mr. Gabany's house, told him that Ms. Drury had shot herself, and asked him to call an ambulance. Mr. Gabany complied, and the police arrived at [Movant] and Ms. Drury's home shortly thereafter. They found Ms. Drury, who had been shot in the head, lying on the kitchen floor. [Movant], who was in the bedroom when the officers arrived, had blood on his clothing and was carrying a gun in the front of his pants. After the officers arrested [Movant] and read him his Miranda rights, he told them, "Kelly shot herself."
The officers took [Movant] to the Joplin Police Department, where he was interviewed by Detective Greg Helms. Initially, [Movant] told Detective Helms that Ms. Drury had gone to the bedroom, gotten the gun, and shot herself. When Detective Helms told [Movant] he did not believe him, [Movant] told Detective Helms that he handed the gun to Ms. Drury and told her to go ahead and shoot herself, which she did. Again, Detective Helms expressed disbelief, and [Movant] changed his story again, telling Detective Helms that he and Ms. Drury had struggled over the gun, and that she had overpowered him and then shot herself. Detective Helms told [Movant] that he also did not find this story believable, and [Movant] gave his final version of the events in which he said that he and Ms. Drury had been arguing about her drinking. According to [Movant], he pointed his gun at her head, she grabbed his arm, and he sho
Page 1 2 3 4 5 6 Missouri DUI Attorneys
DUI Lawyers
|