Appellant Allen L. Nicklasson was convicted and sentenced to death for the execution style murder of Richard Drummond on August 24, 1994. This Court affirmed the conviction and imposition of capital punishment in
State v. Nicklasson,
To establish ineffective assistance of counsel, a movant must show that “counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney” and that he was thereby prejudiced.
Bucklew v. State,
In reviewing the motion court’s denial of a claim of ineffective assistance, this Court is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous.
Lyons,
In his first point, Nieklasson alleges that trial counsel was constitutionally ineffective for failing to object to the prosecution’s closing argument, which Nicklas-son contends constituted a misstatement of the law that undermined his diminished capacity defense.
The defense theory presented at trial was that, due to a mental disease or defect, Nieklasson was incapable of acting with deliberation — the requisite mental state— on the date of the offense. In support of this theory, Nieklasson offered the testimony of a psychiatrist and a psychologist, both of whom averred that appellant suffered from post-traumatic stress disorder and borderline personality disorder — two conditions that they classified as mental diseases or defects as defined under section 552.010, RSMo 1994. The State presented rebuttal testimony from a psychologist appointed by the court who testified that Nieklasson did not suffer from a mental disease or defect, but from anti-social personality disorder.
In his guilt-phase closing argument, the prosecutor made the following comments concerning the significance of Nicklasson’s mental conditions:
You’ve heard testimony from a number of psychologists, a couple who have been hired to [the] defense, with one who had been appointed by the Court. And there’s no doubt in anybody’s mind that there is a personality disorder here. Whether that rises to the level of mental disease or defect doesn’t matter, given the evidence that’s before you. It’s clear it wasn’t affecting him then.
Counsel did not object to these statements. This failure, according to Nieklasson, was ineffective assistance because the prosecutor misstated the law by informing the jury that the fact that Nieklasson was suffering from a mental disorder “doesn’t matter,” when under section 552.015.2(8), evidence of a mental disorder is relevant to determine deliberation. After conducting an evidentiary hearing on the issue, the motion court determined that the argument presented was not a misstatement of the law, but a “reasonable interpretation of the law of diminished capacity.”
This Court agrees. When the challenged statements are considered in context, it is clear that the prosecutor’s seeming disregard for Nicklasson’s evidence of mental instability was not at all inconsistent with the law of diminished capacity. In order to prevail on a diminished capacity defense, a defendant must introduce evidence that he or she suffered from a mental disease or defect,
State v. Erwin,
Appellant overlooks the clear import of the prosecutor’s statements. The prosecutor stated: “Whether [appellant’s personality disorder] rises to the level of mental disease or defect doesn’t matter,
given the evidence that’s before you.”
By this statement, the prosecutor was not misdirecting the jury, but simply commenting that the evidence of mental disease or defect is not necessarily determinative. In fact, to hold that the prosecutor’s statements constituted an erroneous statement of law would be tantamount to holding that, once the jury determines the existence of a mental disease or defect, the defendant would be entitled to a verdict of acquittal. As the diminished capacity instruction itself indicates, this is simply not the case. Under MAI-CR3d 308.03, the jury must consider all evidence — not just evidence that the defendant suffered from a mental disease or defect — in determining whether the accused acted with the requisite intent.
2
See also State v. Bell,
In his next point, Nicklasson alleges that appellate counsel was ineffective for failing to challenge on direct appeal his court-ordered physical restraint during trial. Throughout the course of the trial and over defense objections, Nicklasson’s *486 legs were shackled and sheets of brown paper were used to conceal the restraints from the jury. Nicklasson argues that the leg restraints could be heard throughout the courtroom, and that the attempted concealment only drew attention to the shackling. The motion court denied Nick-lasson’s claim without conducting an evi-dentiary hearing, finding, inter alia, that Nicklasson would not have been able to succeed on appeal because there was no evidence in the trial record indicating that any juror was aware of the shackling.
On the record presented, Nicklasson can show neither entitlement to an evidentiary hearing nor grounds warranting reversal of his conviction. The motion court is under no duty to conduct an evidentiary hearing where, as here, the motion, files and records of the case conclusively show that the movant is not entitled to relief on the underlying claim of error.
Maynard v. State,
Though Nicklasson argues that the use of restraints unconstitutionally deprived him of the presumption of innocence, the record is devoid of any evidence that would support his claim. In the interest of maintaining courtroom safety, the trial court has considerable discretion to impose measures necessary to maintain order in the courtroom, and this discretion includes the use of physical restraints.
State v. Armentrout,
In the case at hand, Nicklasson was charged with first degree murder, which was part of a multi-state crime spree in which he admittedly committed two murders in Arizona and indiscriminately fired shots in a strip mall in California. Furthermore, on at least two separate occasions, Nicklasson had attacked security personnel while in the custody of state authorities. The first incident, which involved an assault of a security guard at the Moberly Correctional Center, resulted in a conviction for assault in the second degree. In the second incident, which occurred while he was awaiting trial for this offense, Nicklasson assaulted security personnel at the Clay County jail.
Given this pervasive and undisputed history of violence, and in particular, the disruptive and violent behavior while in custody, the trial court did not abuse his discretion by imposing physical restraints in this case. Moreover, because the record conclusively refutes his claim, Nicklas-son is not entitled to an evidentiary hearing, and counsel was not ineffective for *487 failing to bring this claim to the attention of the appellate court.
This Court concludes that the motion court did not err in denying Nicklasson’s claim for post-conviction relief, as neither trial nor appellate counsel rendered ineffective assistance by fading to raise non-meritorious claims. The judgment is affirmed.
Notes
. The deliberation evidence presented at trial included evidence that Nicklasson 1) took the victim to a secluded area, 2) told the victim to say his prayers prior to shooting him, 3) attempted to flee the jurisdiction after the murder, and 4) attempted to dispose of the murder weapon.
. The diminished capacity instruction submitted in this case was modeled after MAI 308.03, which provides in pertinent part:
If, after considering all the evidence, including evidence that the defendant did or did not have a mental disease or defect, you have a reasonable doubt as to whether [Insert language as to the defendant having the culpable mental state ... ], you must find the defendant not guilty of [name of offense] as submitted in Instruction No.-.