Roosevelt POLLARD, Jr., Appellant, v. STATE of Missouri, Respondent.
No. 72887
Supreme Court of Missouri, En Banc.
April 9, 1991
Rehearing Denied May 3, 1991
807 S.W.2d 498
BLACKMAR, C.J., ROBERTSON, RENDLEN, HIGGINS and HOLSTEIN, JJ., and ULRICH, Special Judge, concur. BILLINGS, J., not sitting. WASSERSTROM, Senior Judge.
A record that does not indicate whether appointed counsel made the determinations required by
It remains to address the facts of record supporting the claim presented by the movant in this case. On the day movant filed his motion for postconviction relief, June 28, 1988, the circuit court appointed a public defender to represent movant. It appears from the record that counsel was notified of the appointment on July 1, 1988. The record reflects absence of any activity whatsoever by appointed counsel on movant‘s behalf at any time during the proceedings. There is no entry of appearance. There is no indication of counsel‘s ever having communicated with movant. There is no amended motion. Of record there is absolutely nothing to show other than a complete failure to comply with the requirements of
The cause is remanded to the motion court for its determination of whether appointed counsel acted to ascertain whether sufficient facts are asserted in the
BLACKMAR, C.J., ROBERTSON, RENDLEN, HIGGINS and HOLSTEIN, JJ., and ULRICH, Special Judge, concur.
BILLINGS, J., not sitting.
William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.
WASSERSTROM, Senior Judge.
This Court affirmed Appellant Roosevelt Pollard‘s conviction of capital murder and sentence of death in State v. Pollard, 735 S.W.2d 345 (Mo. banc 1988), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 682 (1988). Pollard now appeals the lower court‘s denial of his
On January 29, 1988, Pollard properly filed a
The amended motion was not filed within the time limit of
The State‘s motions to dismiss both
I.
For his first point on appeal, Pollard contends that trial counsel was ineffective for failing to investigate and present mitigating evidence during the penalty phase of the trial. In support, he complains in the argument portion of his brief that the psychiatrist who testified at the trial should have been called at the penalty phase for further testimony and that additional follow-up tests should have been made; that family members or others should have been called to explain problems in Pollard‘s family background; that additional details should have been put in evidence concerning the Illinois murder upon which the prosecution had relied as an aggravating circumstance; that an instruction should have been requested on Pollard‘s age as a mitigating circumstance; that the jury should have been informed that Pollard had two children; and that trial counsel made a weak and inaccurate closing argument. As a matter of grace, we overlook Pollard‘s failure to include these latter complaints as part of his Points Relied On. See Tyler v. State, 787 S.W.2d 778, 779 (Mo.App.1990) and cases there cited.
The first objection to this entire point is that it was not properly initiated in the trial court. A motion under
I received ineffective assistance of counsel, in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 18(a) of the Missouri Constitution, in that counsel failed to adequately investigate evidence to present at the penalty stage of trial in mitigation of the death penalty and in that counsel failed to present any evidence at the penalty stage....
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Attorneys James Elliott and Peter Sterling failed to adequately investigate possible evidence to put on at the penalty stage at my trial and did not put on any evidence. Witnesses will include myself, James Elliott, Maries County Courthouse, Vienna, Mo., and Peter Sterling, 401 N. Rolla, Suite 1, Rolla, Missouri.
As the State properly argues, those recitals wholly fail to say what mitigating facts would have been disclosed by further investigation or show in what way such facts would probably have produced a different result.
Pollard seeks to excuse the insufficiency of the motion by saying that the objection has become moot because the trial court granted a hearing. Assuming without deciding the overall validity of that excuse, it can have no possible effect except to the extent that evidence offered by Pollard at the
One of the only two complaints here pressed which were even mentioned in the trial court related to counsel not calling members of Pollard‘s family to testify. No effort was made to detail the matters to which they would have testified. Trial counsel explained that the relatives were not called because of Pollard‘s instructions to the contrary. Pollard concedes in his brief and reply brief that counsel generally cannot be accused of ineffectiveness because they yield to such instructions from the client. His argument on this score narrows to the claims that counsel knew or should have known that Pollard was mentally incompetent and “doped up” at the time of trial and that “other witnesses and evidence” should have been introduced as to family background. These claims fail because no evidence or argument was offered at the motion hearing in substantiation.
The only other complaint argued on this appeal which was mentioned at the motion hearing related to the matter of Pollard‘s age. His age was mentioned in passing during the questioning of Elliott who had been trial counsel. At best, the matter is of little significance. During the course of closing argument, trial counsel did tell the jury that Pollard was 20 years old at the time of the killing and that the jury was entitled to consider that relative age. There is no reasonable probability that the result would have been different if this factor had been presented to the jury by instruction rather than via argument.
Pollard argues that he cannot be faulted for failing to introduce evidence at the hearing in support of his complaints urged on this appeal, for the reason that the evidence on which he now relies (including psychological and psychiatric reports and trial testimony) was part of the trial transcript of which the hearing court took judicial notice. A similar argument was rejected in Williams v. State, 736 S.W.2d 509, 510 (Mo.App.1987), where the appellate court held that it would not create the heavy burden on the trial court of sifting through the entire record to locate the relevant evidence. That burden would be especially intolerable, and indeed unthinkable, where as here the movant did not give the trial court any notice of his particular complaints by a properly specific motion.
Notwithstanding the foregoing, as a matter of grace, we have reviewed all complaints made by Pollard under his first point and find them without merit.
Pollard has failed to demonstrate that the trial court‘s findings and conclusions are clearly erroneous. His first point is therefore denied.
II.
For his second point on appeal, Pollard claims he is entitled to relief because of ineffective assistance of
Pollard‘s second point is denied.
The judgment is affirmed.
BLACKMAR, C.J., and ROBERTSON, RENDLEN, HIGGINS, COVINGTON and HOLSTEIN, JJ., concur.
BILLINGS, J., not sitting.
OPINION ON MOTION FOR REHEARING
PER CURIAM.
In his motion for rehearing, Pollard calls attention to the opinions of this Court in Sanders v. State, 807 S.W.2d 493, and Luleff v. State, 807 S.W.2d 495, both handed down concurrently with the opinion herein. Neither of those opinions conflicts with opinion in this case.
In Luleff, as the opinion states: “The record reflects absence of any activity whatsoever by appointed counsel on movant‘s behalf at any time during the proceedings.... There is no amended motion.” By the way of contrast, appointed counsel in this case did file an amended motion. Moreover, appointed counsel proceeded to a hearing at which he produced witnesses and cross-examined the State‘s witness. It cannot be said that here, as was true in Luleff, appointed counsel abandoned Pollard.
In Sanders, relief was granted on the postconviction motion because appointed counsel had failed to file his amended motion within the time prescribed by
What Pollard‘s new counsel on appeal really argues in Point II is that counsel before the motion court did not do everything which might have been done, and the brief on appeal asks a remand for the purpose of another and expanded hearing. To acquiesce in that request would go far beyond the narrow compass of Sanders and Luleff, and as stated in Sanders “would defeat the clear provision of subsection (k).”