Smulls v. StateSmulls v. State
Lead Opinion
Herbert Smulls was convicted in the Circuit Court of St. Louis County of first-degree murder and other crimes and was sentenced to death. On appeal, his convictions and sentence were affirmed, but the judgment on his Rule 29.15 post-conviction motion was reversed. State v. Smulls,
I. Background
In 1991, Smulls was charged with first-degree murder, first-degree assault, two counts of first-degree robbery, and two counts of armed criminal action. The jury convicted Smulls of robbery but could not come to a verdict on the other charges. On retrial, Smulls was convicted on all the remaining counts. Judge William Corri-gan presided at both trials. The facts surrounding the offenses, as reported in this Court’s original opinion, are as follows:
Stephen and Florence Honickman owned and operated a jewelry business. Typically, customers wold make an appointment to examine the jewelry for sale. In early July 1991, a person identifying himself as “Jeffrey Taylor” called the Honickmans and made an appointment to buy a diamond. “Jeffrey Taylor” was later identified as defendant. On July 22,1991, defendant and Norman Brown went to the Honickmans’ store. After viewing several diamonds, defendant and Brown left the store without making a purchase.
A short time after the robbery, police stopped defendant and Brown for speeding. While defendant was standing at the rear of his car, the police officer heard a radio broadcast describing the men who robbed the Honickmans’ store. Defendant and Brown fit the descriptions. The officer ordered defendant to he on the ground. Defendant then ran from his car but was apprehended while hiding near a service road. The police found jewelry and other stolen items from the store in the car and in Brown’s possession. The following morning police found a pistol on the shoulder of the road on which defendant drove prior to being stopped for speeding. Bullets test fired from the pistol matched bullets recovered from the store and Stephen Honickman.
State v. Smulls,
[T]he murder of Stephen Honickman was committed while defendant was engaged in the attempted unlawful homicide of Florence Honickman; the defendant murdered Stephen Honickman for the purpose of defendant receiving money or any other thing of monetary value from Stephen Honickman; and, the murder of Stephen Honickman was committed while defendant was engaged in the perpetration of a robbery.
Id. at 24. Additionally, the state introduced evidence of non-statutory aggravating circumstances including Smulls’ eleven prior felony convictions. In affirming the judgment imposing the death sentence, this Court determined 1) that the sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor, 2) that the jury’s finding of the statutory aggravating circumstance was supported by the record, and 3) that the sentence was not excessive or disproportionate to similar cases.
Despite the fact that Smulls’ convictions and death sentence were affirmed, this Court held that certain comments Judge Corrigan made during a Batson hearing at voir dire provided “an objective basis upon which a reasonable person could base a doubt about the racial impartiality of the trial court.” Id. at 26. These comments, coupled with allegations of pre-trial out-of-court misconduct and Judge Corrigan’s status as a potential witness on those allegations, required his disqualification from Smulls’ Rule 29.15 hearing. Id. at 27. Accordingly, Judge Corrigan’s denial of Rule 29.15 relief was reversed, and the case was remanded for a new hearing. On remand, Judge Emmett O’Brien, another member of the St. Louis County Circuit Court, was assigned to hear the motion.
[I]f ... the hearing court finds no basis for disqualification of Judge O’Brien, the Rule 29 proceedings may be reassigned to Judge O’Brien for re-entry of his judgment.
Id. at 505.
On remand, the case was assigned to Judge James Hartenbach, yet another member of the St. Louis County Circuit Court, who, after an evidentiary hearing, determined that the motion to disqualify Judge O’Brien was properly overruled. Pursuant to this Court’s directive, Judge Hartenbach ordered the case reassigned to Judge O’Brien, and Judge O’Brien then reentered his judgment overruling Smulls’ Rule 29.15 motion. Smulls now appeals the determination that Judge O’Brien could properly hear the motion as well as Judge O’Brien’s denial on the merits of his Rule 29.15 motion.
II. Smulls’ Motion to Disqualify All St. Louis County Judges
After the 1996 remand, Smulls filed a motion to disqualify all current and former judges of the St. Louis County Circuit. That motion was overruled. The issue was briefed on the second appeal to this Court and denied. Smulls v. State,
III. Motion to Disqualify Judge O’Brien
A. Exelusion of Evidence
Smulls first claims that Judge Har-tenbach erred in excluding certain evidence from the hearing that pertained to Judge O’Brien’s alleged bias: (1) the testimony of two judges from St. Louis City expressing concern that a campaign was being waged by other judges in favor of Judge Corrigan and against the author of this Court’s first opinion; (2) letters sent to this Court by other judges on Judge Corrigan’s behalf asking this Court to rehear Smulls’ case; and (3) certain newspaper articles from the St. Louis Post-Dispatch harshly critical of Judge Corrigan.
Smulls contends the evidence is relevant because it would engender sympathy for Judge Corrigan and pressure Judge O’Brien to vindicate his fellow judge. Additionally, Smulls points to this evidence to establish that Judge O’Brien was influenced by extra-judicial factors, giving rise to an appearance of impropriety. See State v. Hunter,
Judge Hartenbach rejected this evidence because it was irrelevant. This Court agrees. Smulls did not show that Judge O’Brien had been exposed to any of the specific evidence in question, nor did Smulls attempt to ask Judge O’Brien about it during O’Brien’s testimony at the hearing before Judge Hartenbach. Although Judge O’Brien testified that he was generally aware of newspaper articles on the issue, he could not recall the content of
B. Judge O’Brien’s Impartiality
Smulls next claims Judge Harten-bach erred in his determination that Judge O’Brien could impartially hear Smulls’ Rule 29.15 motion on remand. The basis of the claim, from Smulls’ point relied on, is that “O’Brien was with Corrigan when Corrigan condemned this Court’s calling him ‘a racist’ and O’Brien may have participated in criticizing language that produced lobbying against this Court thereby creating an appearance of impropriety....” This claim arises against the backdrop of this Court’s revision of its original opinion in Smulls I by deleting certain language that was highly critical of Judge Corrigan. See Smulls v. State,
The Due Process Clause of the United States and Missouri Constitutions guarantee a criminal defendant an impartial tribunal, permitting any litigant to remove a biased judge. State v. Taylor,
In view of the allegations raised by Smulls, two cases are particularly helpful. In State v. Nunley,
More particularly, there is no basis for establishing that special relationship, much less an appearance of impropriety, through the allegation that O’Brien knew Corrigan condemned this Court for calling him “a racist,” and that O’Brien, himself, may have criticized this Court’s original opinion. In that regard, the record of Judge O’Brien’s interaction with Judge Corrigan shows the following: Judge Corrigan testified that he discussed this Court’s decision with many judges on the St. Louis County Circuit bench; some of those judges criticized this Court’s opinion, and he and Judge O’Brien discussed the case at some point between the issuance of this Court’s original and modified opinions; however, Judge Corrigan was not sure whether his discussion with Judge O’Brien was superficial or even whether Judge O’Brien was one of the judges who criticized the opinion.
Judge O’Brien testified that he did not recall overhearing Judge Corrigan express any specific disagreement, including any specific disagreement with language used in this Court’s original opinion. When asked if he and Judge Corrigan discussed the racial bias claim in Smulls, Judge O’Brien stated, “I’ve heard statements made by Judge Corrigan, none of which were after the modified opinion came out ... I don’t think any of them dealt with specific issues within the opinion. I think it was just an overall displeasure with the opinion.” Judge O’Brien also testified that he did not have any contact with Judge Corrigan after the modified opinion was issued, and he avoided contact with anyone discussing the case because he knew it was possible that he would be assigned to hear the case. At most, he presumed the opinion “was not Judge Corrigan’s favorite,” because it was critical of Judge Corrigan’s fitness for the bench.
Finally, there is no evidence that Judge O’Brien “participated in criticizing language that produced lobbying against this Court,” nor, as noted, is there evidence that Judge O’Brien even knew of allegations to that effect. In fact, his only criticism on this record was that this Court’s comments regarding Judge Corrigan’s fitness for the bench was a matter better suited for the Commission on Retirement, Removal and Discipline. That criticism does not establish disqualifying bias, if for no other reason than that the criticism was validated when this Court deleted the comments regarding Judge Corrigan’s fitness.
In sum, Smulls failed to prove, either through the existence of a special relationship between Judge O’Brien and Judge Corrigan or through Judge O’Brien’s comments and actions themselves, that a reasonable person would have reason to doubt Judge O’Brien’s impartiality.
IV. Denial of Rule 29.15 Claims with Evidentiary Hearing
The effect of this Court’s determination that Judge O’Brien could hear Smulls’ Rule 29.15 hearing is that Judge O’Brien’s denial on the merits is reinstated. Smulls’ amended motion contained twenty-six claims. All but five were dismissed without an evidentiary hearing. An evidentia-ry hearing was granted on the five claims, as well as several from Smulls’ pro se motion. These include ineffective assistance of counsel claims for (a) failure to move for Judge Corrigan’s disqualification, (b) failure to present the results of gunshot residue tests performed on Smulls and his accomplice, (c) failure to present certain mitigating factors in penalty phase, and (d) discouraging Smulls from testifying at his second trial. All of these claims were
This Court’s review is limited to determining whether the motion court clearly erred in its findings and conclusions. The findings and conclusions of the motion court are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made.
Rousan v. State,
A. Failure to Move for Judge Corrigan’s Disqualification
The principal claim of this appeal is that Smulls’ trial counsel was ineffective for failing to discover evidence of Judge Corri-gan’s racial bias and move for his disqualification. This claim is based essentially on the same allegations and conduct this Court considered in disqualifying Judge Corrigan from hearing the Rule 29.15 motion: 1) that prior to the case, Judge Cor-rigan told a racist joke to a group of judges, that judgment had been entered against him for sexual harassment, and that he discriminated against African-American defendants in the disposition of criminal cases; and 2) that during the case, he made racially insensitive comments at the Batson hearing.
Although the circumstances of the Bat-son hearing were reported extensively in the first Smulls opinion, they bear repeating here: The defendant noted that Ms. Sidney was the only remaining black veni-reperson and requested a Batson hearing. When the prosecutor stated his reasons for striking Ms. Sidney, Smulls’ counsel claimed the reasons were pretextual and requested a mistrial. The court denied defendant’s request. The next day, Smulls’ counsel renewed the Batson challenge and stated for the record that Judge Corrigan would have been aware the victims were white and the defendant was black because he presided over the first trial. Judge Corrigan stated he did not remember who was black and who was white, but that he would accept the defendant’s statement. He then reiterated his denial of the Batson claim. When the defendant again noted that Ms. Sidney was the last black venireperson, Judge Corri-gan stated that he did not know what it meant to be black, that he never takes judicial notice of a person’s race without direct evidence, and that it is counsel’s responsibility to establish who is black and who is not. In this regard, he added:
There were some dark complexioned people on this jury. I don’t know if that makes them black or white. As I said, I don’t know what constitutes black. Years ago they used to say one drop of blood constitutes black. I don’t know what black means. Can somebody enlighten me of what black is? I don’t know; I think of them as people.
1. Exclusion of Evidence
Initially, Smulls assigns error to Judge O’Brien’s exclusion of certain evidence regarding Judge Corrigan’s racial prejudice.
a. Unofficial Transcript
During the original 29.15 proceedings, Smulls directed a request for admissions to the prosecuting attorney seeking to establish that the defendant was black, the victims were white, and the jury panel selected was all white. Following longstanding custom and practice for non-evi-dentiary motion hearings in civil cases, Judge Corrigan did not provide the court’s official reporter. Therefore, Smulls brought a private court reporter to the hearing who recorded and transcribed the following statements from Judge Corrigan:
This Court won’t take the position that people are white or black. It is the Court’s position that you can’t look at people and determine what their race is .... If the lawyers don’t want to ask the jurors whether the people are white or black or ask a witness if he’s white or black, then I don’t think that I—I can ask the parties to make that admission.
At the 29.15 remand hearing before Judge O’Brien, Smulls tried to admit this transcript, arguing that the transcript demonstrates Judge Corrigan’s professed inability to acknowledge a person’s race. Smulls also wished to present testimony and an affidavit from his original 29.15 counsel that Judge Corrigan made statements indicating he could recognize a person’s race when he so chose.
On objection by the state, Judge O’Brien properly excluded the transcript on the basis that the reporter was not the official court reporter, the reporter did not appear at the hearing to attempt to authenticate the transcript, and the transcript was not self-proving. In addition, Rule 57.03(f) states that after a deposition is taken and transcribed, it must be submitted to the deponent for his reading and signature. This was not done. Subsection (g) then provides for the signature of the officer transcribing the deposition, but in the absence of the signature of the deponent, that attestation does not guarantee the accuracy of the transcript. Coffel v. Spradley,
b. Counsel’s Race-Recognition Testimony
Smulls’ former counsel attempted to testify via affidavit that during the initial Rule 29.15 hearing, Judge Corrigan referred to the woman who years before sued him for sexual discrimination as “white.” The state objected to the testimony on several grounds, including relevancy, and Judge O’Brien sustained the objection. Although the testimony was offered to show Judge Corrigan’s possible bias or untruthfulness about race-recognition, it is irrelevant to show counsel’s ineffectiveness for failing to discover that bias or untruthfulness. For this evidence to be relevant to that claim, the evidence must have been known to counsel or discoverable during reasonable investigation. White v. State,
c. “Barbecue Joke ” Evidence
A Postr-Dispatch article published in 1983 reported that Judge Corrigan said during a meeting of judges that, “We can’t have a barbecue because we don’t have a black judge to do the cooking.” Smulls claims he offered this article not to establish whether there were in fact any black judges in the St. Louis County Circuit, but to establish that Judge Corrigan was biased and that his bias was public knowledge. He claims his counsel knew or should have discovered this alleged evidence of bias, and that that contributed to counsel’s ineffectiveness in failing to file a motion to disqualify Judge Corrigan. Judge O’Brien ruled the article was hearsay.
“A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that
Smulls also offered the deposition testimony of Judge Campbell, who related that he personally overheard Judge Corrigan making the joke. Judge O’Brien disallowed this evidence on hearsay grounds, but the state has made no effort in its brief to defend the ruling. Assuming the testimony should have been admitted, it is much less probative of what Smulls’ counsel knew or should have discovered about the matter than the newspaper article. To the extent Judge O’Brien disallowed or discounted this evidence, Smulls was not prejudiced.
d. Gender Discrimination Suit Evidence
Smulls next claims the motion court erred in excluding certain evidence related to a 1982 gender discrimination suit against Judge Corrigan that resulted in a judgment against him as reported in Goodwin v. Circuit Court of St. Louis County,
e. Exclusion of Dr. Galliher’s testimony
Smulls called Dr. John Galliher, a professor of sociology who had reviewed Judge Corrigan’s conduct during various trials in order to establish racial bias. Judge O’Brien excluded the evidence for a variety of reasons, ultimately concluding that the testimony was not credible. On appellate review, such a determination will rarely be overturned because a trial court is in the best position to assess the credibility and usefulness of expert testimony. Rousan v. State,
In an offer of proof, Dr. Galliher discussed at length the existence and effect of unconscious racial bias in our society, that people with such bias falsely claim not to be able to recognize race and will tell jokes to express their feelings, and that there is a correlation between gender bias and racial bias. He also commented on excerpts from Smulls’ trial and several of Judge Corrigan’s other cases. He concluded that “Judge Corrigan’s behaviors viewed together were inconsistent with adhering to Batson’s spirit and were relevant to
Judge O’Brien rejected this testimony in part because it did not satisfy the Frye test that an expert opinion must be based upon a valid and accepted scientific methodology and assist the trier of fact in the determination of an issue. Callahan v. Cardinal Glennon Hosp.,
f. Smulls’ Affidavits from Defense Attorneys
Next, Smulls complains that Judge O’Brien improperly excluded “evidence about an alleged policy of racial discrimination by St. Louis County prosecutors in voir dire.” This evidence was offered by way of affidavits from three local criminal defense lawyers and was designed to show that Smulls’ counsel should have disqualified Judge Corrigan to avoid the combination of a biased prosecutor and a biased judge. This claim fails because it was determined in the initial appeal that no error occurred in deciding the merits of the Batson challenge. State v. Smulls,
2. Stay of Judge O’Toole’s Deposition
Smulls subpoenaed Judge Daniel O’Toole, claiming Judge O’Toole also heard Judge Corrigan tell the “barbecue joke.” At the state’s request, Judge O’Brien stayed the deposition until he determined Smulls was entitled to an evidentiary hearing on the ineffective assistance of counsel claim to which the deposition related. Judge O’Brien lifted the stay on January 5, 1998, but he denied Smulls’ motion for a continuance of the evidentiary hearing until the deposition could be taken. Nonetheless, he assured Smulls that additional time would be provided as necessary. Smulls scheduled the deposition for March 9, 1998, but Judge O’Toole died on that very day after an extended bout with cancer.
Smulls first claims that the state had no standing to request the stay. Smulls is mistaken. The rules of civil procedure apply to Rule 29.15 motions. Rule 29.15(a). Rule 56.01(c) permits any party to file a motion for a protective order. A request for a stay order falls within that rule.
Smulls next claims that the trial court’s stay of the deposition was improper because Smulls was denied access to a witness who had useful information. “Trial
Smulls also argues that Judge O’Brien improperly refused to continue the eviden-tiary hearing until Judge O’Toole could be deposed. Smulls filed a motion requesting a continuance or, “at minimum,” that the court “hold open’ the evidence” until the deposition could be taken. In response, Judge O’Brien denied the motion, but stated he would grant a continuance at the close of Smulls’ evidence if the deposition had not yet been secured. It is well settled that “[t]he decision to grant or deny a request for a continuance ... rests within the trial court’s discretion and will not be reversed absent a clear showing of abuse of discretion.” State v. Barton,
3. Admission of Judge Corrigan’s Character Witnesses
Smulls objected to the relevancy of the state’s presentation of five prominent criminal defense attorneys who know Judge Corrigan and testified to his reputation as being free of bias when judging cases involving African-Americans. Smulls concedes that character evidence is relevant when put in issue by the nature of the proceeding, and his real complaint seems to be that character evidence has no bearing on racial bias. However, an inquiry into a judge’s alleged racial bias cannot be conducted without an inquiry into the judge’s character because the presence or absence of racial bias is part of a judge’s character. Where, as here, a party has opened the door by introducing evidence of bad character as manifested by racial bias, the other party may introduce evidence of good character as manifested by the lack of racial bias.
Citing Clemmons v. State,
4. Analysis of the Evidence of Racial Bias
To succeed on the claim that trial counsel should have disqualified
Even if that evidence had been properly admitted, it is not evidence that trial counsel knew of or could have discovered with a reasonable amount of investigation. To uncover evidence that Judge Corrigan allegedly told a single racist joke to an informal group of judges some ten years before trial, even when the joke was reported in the newspaper, is not required as part of any reasonable investigation. This is especially true considering trial counsel has only limited resources and must necessarily be given deference as to the target and scope of such investigation. See State v. Clay,
Furthermore, even had counsel conducted the kind of pre-trial investigation that Smulls, in hindsight, now claims was required, the investigation would have likely turned up as much evidence that Judge Corrigan was not biased as evidence that he was biased. The five criminal defense lawyers who practice regularly before Judge Corrigan testified unequivocally that their African-American clients had been treated fairly, and even Judge Campbell, who testified that he overheard the racist joke years ago, qualified his statement by then testifying that during the many years he had served with Judge Corrigan, he had never heard of a claim or allegation of racial bias made against him. Under these circumstances, counsel cannot be faulted for failing to move for Judge Corrigan’s disqualification before trial.
Whether counsel should have moved to disqualify Judge Corrigan after his comments at the Batson hearing is perhaps another question, and ultimately, the issue to be resolved is whether counsel should have attempted to disqualify Judge Corri-gan on the basis of his comments during the Batson hearing alone. Although this Court determined in the first Smulls opinion that those comments were racially insensitive, State v. Smulls,
The decision to disqualify a judge is a matter of trial strategy. State v. Ayers,
Finally, hindsight shows that the decision not to disqualify Judge Corrigan did not result in prejudice. Smulls cannot point to any judicial decision that evidences Judge Corrigan’s alleged bias or in which Judge Corrigan’s alleged bias produced an unjust result. This Court expressed concern in its 1996 decision that Judge Corrigan’s refusal to acknowledge race raises “serious questions about his willingness to do what Batson requires,” Smulls,
B. Disqualification Because of Retention Vote
Smulls next claims that his counsel was ineffective for failing to have Judge Corrigan disqualified because Judge Corri-gan was worried about his upcoming retention vote in the 1992 general election. Smulls explains that given that concern, Judge Corrigan would be unwilling to consider a life sentence instead of the death penalty because a willingness to consider a life sentence might erode support at the polls. This claim is frivolous. The 1992 general election was held before Smulls’ trial.
C. Failure to Present Gunshot Residue Evidence
Gunshot residue tests were performed on Smulls and his accomplice. No residue was detected on Smulls, and the test on his accomplice was inconclusive. During the first trial, the state’s expert, Dr. Rothove, was unavailable, and the parties agreed to a short stipulation regarding the test results. At the second trial, Smulls’ counsel subpoenaed Rothove, but did not call him, having just learned that he would not support the theory that the accomplice fired the shots. As we understand it, Smulls’ claim is that counsel did not interview Rothove in time to adjust strategy and that counsel was ineffective for failing to present the stipulation. Smulls now concedes that the stipulation
Smulls must establish that his counsel was ineffective in failing to obtain an independent expert and that it is reasonably probable that the deficiency affected the outcome. White v. State,
D. Failure to Present Mitigating Circumstances
Smulls claims Judge O’Brien clearly erred in denying his claim that his counsel was ineffective for failing to interview and present certain mitigating witnesses during penalty phase. These witnesses would allegedly have testified that he was nonviolent, amicable, abandoned at childhood, impoverished, cared for his children, and that he was helpful to friends and relatives.
While counsel is required to investigate possible mitigating circumstances, Nunley,
Smulls presented five witnesses during the penalty phase: Dr. Wells Hively, a psychologist; Smulls’ pastor, who had known him since he was a child; a supervisor and a corrections officer at the jail where Smulls was incarcerated; and Smulls’ adopted father, who had raised him since he was a year and a half old. Dr. Hively explained that Smulls is depressed, has a dependent personality, and is not violent unless he is coerced. The pastor testified that Smulls is polite, respectful and not violent. The corrections supervisor and guard testified that he was a good worker and that he did not cause trouble. His father testified that Smulls was abandoned as a child and did not finish high school, and that he still cared for Smulls as he would his own blood.
Most of the witnesses and testimony Smulls claims his counsel should have presented would be cumulative of testimony that had already been presented. In addition, the motion court, which is in the best position to evaluate credibility, found that a number of these witnesses were not credible. They include Randy Edwards and Dennis Brown, who both arrived in court to testify with a list of typed questions with parenthetical answers; Crispin Smith, who had a “close relationship” with Smulls but supposedly did not know he was on parole; Maggie Cain, who knew
E. Smulls’ Decision Not to Testify
Smulls claims his counsel was ineffective for not advising him to testify. Smulls testified at his first trial, and the jury could not reach a verdict on the murder count. He claims this gives rise to a “reasonable probability” that he would not have been convicted had he testified at his second trial. See Rousan v. State,
V. Denial of Rule 29.15 Claims Without an Evidentiary Hearing
In post-conviction relief motions,
[a]n appellant is entitled to an evidentia-ry hearing only if his motion meets three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters of which movant complains must have resulted in prejudice.
Morrow v. State,
A. Prosecutor’s Motive to Seek the Death Penalty
Smulls claims his trial counsel was ineffective for failing to investigate and challenge the prosecutor’s motive to seek the death penalty. Again, to establish ineffective assistance, Smulls must describe the information his attorney failed to discover, allege that a reasonable investigation would have uncovered the information, and prove the information would have aided his position. White v. State,
Smulls’ motion alleged that: (1) he is an economically disadvantaged African-American, (2) his victims were Caucasian and the crime occurred in an affluent Caucasian suburb, (3) evidence would be presented that in factually similar homicide cases with Caucasian defendants the state did not seek the death penalty, (4) the death penalty was sought in his case because he is African-American, (5) reasonably competent counsel would have investigated and raised this matter, and (6) he
Smulls’ evidence in support of these allegations consisted of a “Task Force Report on the Status of the African-American Male in Missouri” attached to his pleadings, which purportedly showed in capital cases a “glaring racial difference” that “results from the discretionary decisions of prosecutors.” This evidence fails to prove purposeful discrimination specific to his case. Morrow v. State,
Smulls also takes issue with the motion court’s refusal to allow interrogatories on this claim. Because the determination to deny the claim without an eviden-tiary hearing was properly made solely on “the motion and the files and records of the case,” discovery before the determination of which claims warrant an evidentia-ry hearing would be premature. See State v. Ferguson,
B.Dr. Hively’s Testimony
Smulls claims his counsel erred in calling Dr. Wells Hively during penalty phase because Dr. Hively was not the author of Smulls’ psychological report, which was prepared as evidence in mitigation. The expert who prepared the report was unavailable, and Dr. Hively, who worked with the expert on the case, was called as a replacement. Counsel cannot be faulted because she had little choice but to call another witness familiar with the report. In addition, trial counsel’s testimony to the contrary notwithstanding, it is unlikely that Smulls suffered prejudice from counsel’s choice to present a different expert than the one who prepared the report. Doctor Hively testified that his entire office, including himself, was involved in the preparation of the report, that he examined Smulls four times, and that his opinion was based upon those examinations as well as the results of psychological tests and police reports. The motion court’s denial of this claim was not clearly erroneous.
Smulls also alleges that instead of calling Dr. Hively, his counsel should have called a “comprehensive mental health expert.” Counsel is not ineffective for failing to shop around for additional experts. Lyons v. State,
C. Penalty Phase Opening Statement
Smulls claims his counsel was ineffective for commenting, during opening statement in penalty phase, that Smulls could not find a job because of a disability and turned to a life of crime as an easy way out. Smulls’ eleven prior felony convictions were admissible to impeach his credibility if he took the stand and admissible regardless as an aggravating factor in penalty phase. It is a common and proper defense strategy to mention convictions first in order to soften the blow. See Richardson v. State,
D. Failure to Object to Instructions
Smulls claims his counsel was ineffective for failing to object to allegedly confusing
E. Voir Dire
Smuils claims his counsel was ineffective for failing to object when the trial court stated that, “theoretically” speaking, the defendant does not have the burden to prove that he should not be put to death. The record reflects an extensive dialogue with the juror in question, during which the trial court made it clear that the state bore the burden. Taken in context, and considering the person did not serve on the jury, the court’s explanation did not misallocate the burden, and any claim the jury was tainted is speculative.
VI. Claims Denied on Direct Appeal
Smuils’ motion also raises a number of ineffective assistance of counsel claims in which the underlying issues were denied by this court on direct appeal: (1) failure to prove the prosecutor’s reasons for striking Ms. Sidney were pretextual, State v. Smulls,
VII. Conclusion
The judgment is affirmed.
Concurrence Opinion
concurring.
I concur in the principal opinion, but write separately only to raise the question of the wisdom of allowing each side nine peremptory challenges. Our system of peremptory challenges greatly encourages the racial discrimination in jury selection that Batson v. Kentucky,
The road to Hell, it is said, is paved with good intentions. Batson was decided with the best of intentions — eliminating racial discrimination in the use of peremptory challenges. The present case, with its tormented history, shows that good intentions may not have led to Hades, but the road surely has been fraught with difficulty.
Justice Thurgood Marshall predicted that the protections provided for in Batson would be largely illusory. Batson,
Our discomfort arises from the essential truth about jury selection — it is based on generalizations about a venireperson’s
The point is not to say that these generalizations are evil or even inaccurate. But it suffices to say that racial profiling, while not exactly invented by trial lawyers, is alive and well in the jury selection process.
Historically the peremptory challenge allowed a lawyer to strike a certain number of prospective jurors without having to state a reason. The peremptory challenge in the United States is said to have been used by states to resist the desegregation forced upon them by the federal government. Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L.Rev. 809, 849 (Summer 1997). The original purpose of the peremptory challenge in England was to balance the playing field against the Crown’s unlimited ability to eliminate prospective jurors. However, Judge Hoffman argues, the peremptory challenge in America has no such noble purpose because of our racial history. Id. at 844. Once the civil rights movement resulted in elimination of Jim Crow laws enforcing segregation, Judge Hoffman contends, the peremptory challenge continued to serve as an efficient final racial filter to ensure all-white juries. Id. at 829. The case against peremptory challenges on racial grounds may be a bit overstated because, irrespective of its use in some jurisdictions to deny African-Americans full participation in the legal system, it remains well entrenched in jurisdictions that have no history of resistance to civil rights.
Perhaps we are comfortable with our generalizations. What if a trial lawyer infers from the social sciences that members of certain racial or ethnic or religious groups are, on average, more likely than not to be favorably disposed to a client’s kind of cause? As a zealous advocate in an adversary system, the lawyer may, and arguably should, consider that characteristic in determining which potential jurors to strike. This is especially true where, as in Missouri, little trial time is given to allow the lawyers to question jurors extensively to determine their actual individual attitudes. The lawyers gain some minimal information about jurors’ attitudes and perceptions in the voir dire examination, but usually not enough to counter the preconceived notions that the lawyer brings to the courtroom.
When prosecutors use their peremptory challenges to strike African-Americans from the jury panel, a Batson challenge frequently results. The burden is placed upon a prosecutor to give a racially neutral reason for the strike. State v. Jones,
Examining this Court’s death penalty cases from the state’s three largest jurisdictions, the city of St. Louis, St. Louis County, and Jackson County since the death penalty was reinstated in 1977, the following are found: 12 of 26 cases in the City of St. Louis, seven of 17 cases in St. Louis County, and four of 12 cases in Jackson County contained Batson challenges. None of Batson challenges were successful on appeal. In examining all reported criminal appeals since 1995 that contain Batson challenges, it appears that there have been about 100 such cases. Of those concerning race, two were remanded to the trial court to conduct a proper Bat-son hearing.
Large-scale empirical studies seem to be lacking as to the effect of Batson on racial discrimination. But studies examined to date show either no effect or only a very limited effect on the use of peremptory challenges to discriminate. David C. Bal-dus, The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, U. Pa. J. Const. L., February, 2001, at 34. A study of capital
Apparently the most substantial effect of Batson in Missouri, I regret to say, has been to call into question the actions of the two trial judges in this case. In addition to the opinions in this case, see State v. Smulls,
The only way to eliminate completely racial profiling in jury selection is to eliminate the peremptory challenge. Justice Marshall advocated this position in Batson,
Complete elimination of the peremptory challenge is a drastic remedy, and one that I am reluctant to espouse. Instead of complete elimination, the legislature might consider at least a drastic curtailment of the number of peremptory challenges. Section 494.480 allows nine peremptory challenges per side in death penalty cases. These strikes occur after the challenges for cause remove any prospective jurors who would not impose capital punishment.
A system that allows many peremptory challenges is open to manipulation by the defense as well. The popular press has many examples. See Dominick Dunne, Justice: Crimes, Trials and Punishments (2001). Perhaps, as Dunne reports, the prosecutor wants “twelve fascists,” and defense counsel wants “twelve bleeding-heart liberals or weirdos, with the assumption that they will arrive somewhere in between.” Id. at 15. Is the result really a fair trial before a jury drawn from a reasonable cross-section of the community?
In cases that may involve imprisonment, but not death, each side is given six peremptory challenges, and two per side where there would be no prison sentence. In a death penalty case, at least 18 citizens
We depend on the challenge for cause to remove prospective jurors who are biased or otherwise unsuitable for a particular case. The benefit of the peremptory strike is that it helps ensure a fair trial when the trial judge is wrong in overruling a challenge for cause. In fight of the deference appropriately given to trial court rulings, a trial judge can be incorrect in overruling a challenge for cause without committing reversible error. But how many safety valves are needed for a fair trial? Nine or even six peremptory challenges seem wildly excessive. On challenges for cause, as in many other trial events, the correctness of trial court rulings is appropriately assumed. One or two peremptory challenges should be enough.
If the number of peremptory challenges were reduced to one or two, juries in racially diverse counties would more likely be representative of the community. More importantly, such a move would drastically reduce the often subtle yet always insidious racial discrimination inherent in many peremptory challenges.
Notes
. The Gallup Poll last year noted, in reporting on public support for the death penalty: “Traditionally, non-whites have been much less supportive than whites, which is not surprising given the attention that has been paid to racial disparities in death sentencing. Roughly 70% of whites favor the death penalty in recent polls, while less than a majority of non-whites do.” Jeffrey M. Jones, Two-Thirds of Americans Support the Death Penalty, Gallup Poll News Service (March 2001) available at www.gallup.com.
. State v. Johnson,
. See generally Comment to Missouri Rule 4-3.8. (Rules of Professional Conduct).
. State v. Nathan,
. State v. Davis,
. A prospective juror is removed for cause if his or her views would "prevent or substantially impair the performance of his duties as a juror ....” State v. Six,
. The number is usually more than 18 because peremptoiy challenges are also allowed when alternate jurors are being selected. It is possible, but not likely, that some peremptory challenges will be unused.
Concurrence Opinion
concurring in part and dissenting in part.
I agree with the principal opinion’s determination that Mr. Smulls has not shown that counsel was ineffective in failing to present gunshot residue evidence or further evidence of mitigating circumstances, or in advising Mr. Smulls not to testify. I also agree that he has not shown an entitlement to an evidentiary hearing on the post-conviction claims as to which no hearing was granted.
I disagree with the principal opinion’s determination whether to grant Mr. Smulls post-conviction relief due to the appearance of impropriety created by the comments of Judge Corrigan at the trial and following this Court’s initial opinion in this case, State v. Smulls,
a reasonable person would have factual grounds to find an appearance of impropriety and doubt the impartiality of the court.
Judge Corrigan’s comments have been set out at length above, and no purpose would be served by repeating them here. What can be said is that, assuming that Judge Corrigan’s subjective intent in making the remarks was an innocuous one, his remarks nonetheless provide factual grounds on which a reasonable person could find the appearance of impropriety and doubt the impartiality of the judge. To suggest otherwise simply ignores the fact, as stated in Smulls I, that:
It is not the judge to whom we should afford the benefit of the doubt. The rights and due process based expectations of the parties are the court’s proper focus.
Smulls I,
Applying these principles here, no one familiar with the continuing saga of this case could deny that the June 1996 decision in Smulls I, and the subsequent history of this case, have engendered great controversy. Immediately following the initial decision, members of the bar took conflicting positions as to whether the facts created an appearance of impropriety of Judge Corrigan and whether he was being treated fairly by this Court. Over the following three and one-half years, a new hearing was held before Judge O’Brien on the issues presented by Mr. Smulls’ Rule 29.15 hearing, and the judge concluded that Judge Corrigan was not biased and Mr. Smulls was not entitled to post-conviction relief.
On appeal, Smulls v. State,
This Court held in Smulls II that these conversations provided a basis on which “a reasonable person could doubt the impartiality of’ Judge O’Brien.
Now Mr. Smulls’ appeal is before this Court yet a third time, some two years after the decision in Smulls II and five and one-half years after the decision in Smulls I. Yet, most of the principal opinion is again directed not to the issue of Mr. Smulls’ guilt or punishment, but to the issues of (1) the propriety and appearance of propriety of Judge Corrigan; (2) the propriety and appearance of propriety of Judge O’Brien in presiding over a hearing into the propriety of his colleague’s conduct; and (3) the propriety of the rulings of Judge Hartenbach in presiding over the hearing into the propriety of the conduct of Judge O’Brien in presiding over the hearing into the propriety of Judge Corri-gan’s conduct.
The route this case took to get here is more circuitous than the most complex
Due to this loss of focus, both the reputations of various judges and Mr. Smulls’ right to a new trial have unfairly been left in doubt for over five years, and the fairness and impartiality of the Missouri judicial system has been repeatedly called into question. It is to avoid just this type of situation that recusal should be ordered where the facts raise even the appearance of impropriety in the eyes of a reasonable person. This Court should have directed in Smulls I that Mr. Smulls’ Rule 29.15 motion be granted. I would so hold now, and remand so that a new trial can be held. This fact scenario simply should not be permitted to continue.
For the reasons set out above, I concur in part and dissent in part.
. Accord, State v. Jones,
. I also disagree with the principal opinion’s statement that in order to disqualify Judge O’Brien, Mr. Smulls was required to show that Judges O’Brien and Corrigan had a "special relationship.” While a special relationship would, of course, give a reasonable person "factual grounds to find an appearance of impropriety and doubt the impartiality of the court,’’ Smulls I,