*1 SMULLS, Appellant, Herbert Missouri, Respondent.
STATE
No. SC 83179. Missouri,
Supreme Court
En Banc. 26, 2002.
Feb.
Rehearing April Denied
142
LIMBAUGH, Chief Justice.
in the
was convicted
Herbert Smulls
County of first-
Circuit Court of St. Louis
other crimes and was
degree murder and
appeal, his convic
sentenced to death. On
affirmed,
were
but the
tions
sentence
post-conviction
judgment on his Rule 29.15
motion was reversed. State
1996),
denied,
cert.
Stephen and Florence Honickman operated jewelry a business. owned ap- wold make an Typically, customers jewelry to examine the for pointment July person In a iden- early sale. Defender, Swift, Public J. Asst. William called “Jeffrey Taylor” himself as tifying Columbia, Appellant. for appoint- and made an the Honickmans “Jeffrey Tay- buy ment to a diamond. Nixon, Gen., (Jay) Atty. Jeremiah W. defendant. was later identified as lor” Gen., Atty. Burgess, Mr. Breck K. Asst. 22,1991, and Norman July defendant On City, Respondent. Jefferson to the Honickmans’ store. Brown went diamonds, Powell, defen- viewing Kan- After several Popper, Burnele V. Robert Hickman, left the store without MO, dant and Brown B. San City, sas Christine purchase. CA, making Diego, for Amicus Curiae. 27, 1991, at 13. July the afternoon of State
On jury found the existence penalty phase, followed defendant and Norman Brown factors: statutory aggravating customer into the store. Flor- of three another Honickman was unable to show ence Honickman Stephen murder of [T]he sug- any jewelry them at that time but en- defendant was was committed while might help be able to them gested she attempted unlawful homi- gaged later. Defendant and Brown returned Honickman; the defen- cide of Florence evening. viewing to the store that After Stephen Honickman for dant murdered diamonds, some defendant and Brown mon- purpose receiving of defendant hallway, purportedly went into a to dis- thing monetary value ey any or other A time prices. Honickman; and, cuss the diamond short Stephen from later, up Florence Honickman looked com- Stephen murder of Honickman was pistol at aiming and saw defendant engaged mitted while defendant was her. then ran and hid behind a She perpetration robbery. of a door. Defendant fired three shots Additionally, Id. at 24. the state intro- her, striking her arm and side. Defen- non-statutory aggrava- duced evidence of Stephen dant then fired several shots at including circumstances Smulls’ elev- ting Honickman, times. who was struck three felony affirming convictions. In prior en jewelry Defendant and Brown stole sentence, judgment imposing the death worn Florence Honickman and other 1) that the this Court determined sentence items in the store. After the two men imposed was not under the influence store, left the Florence Honickman con- passion, prejudice, arbitrary other police. Stephen tacted the Honickman 2) factor, of the jury’s finding *6 wounds, died from his and Florence aggravating circumstance was statutory permanent injuries Honickman suffered 3) record, by the and that the supported from the attack. dispropor- not excessive or sentence was tionate to similar cases. A robbery, police short time after the Despite convictions stopped speed- defendant and Brown for the fact Smulls’ affirmed, this ing. standing While defendant was at and death sentence were car, Judge police the rear of his officer Court held that certain comments hearing at describing Corrigan during heard a radio broadcast made a Batson objective upon provided men who robbed the Honickmans’ store. voir dire “an basis person could base a descrip- Defendant and Brown fit the which a reasonable impartiality of the tions. The officer ordered defendant to doubt about the racial comments, ground. then ran trial court.” Id. at 26. These he on the Defendant coupled allegations pre-trial out-of- apprehended from his car but was while Judge Corrigan’s and hiding police near a service road. The court misconduct on alle- potential items status as a witness those jewelry found and other stolen from required disqualification gations, from the store the car and Brown’s po- hearing. Rule 29.15 Id. possession. following morning Smulls’ Judge Corrigan’s denial pistol Accordingly, lice found a on the shoulder of the reversed, 29.15 relief was and prior defendant drove to Rule road on which hearing. for a new On stopped speeding. for Bullets test case was remanded being O’Brien, remand, Judge Emmett another pistol matched bullets fired from the County Louis Circuit Stephen from the store and member of St. recovered Court, to hear the motion. assigned Honickman. However, motions to voir dire and dis- again. to raise the issue Smulls filed on qualify Judge past and all other Court’s earlier resolution the issue O’Brien present County and the merits is the law of the case and the judges. St. Louis Williams those Judge may again. O’Brien overruled motions issue not be raised Kimes, and denied the Rule 29.15 motion on the 153-54 appeal, merits. this Court held that On deposition Judge in a taken of
statements Disqualify III. Motion to Corrigan prior taking indicated that to case, Judge Judge O’Brien may have discussed Corrigan and should Judge case with A. Exelusion Evidence from the possibly have recused himself Har- Judge Smulls first claims that Smulls v. hearing. 29.15 in excluding tenbach erred certain evi at 504. This Court remanded for determi- pertained hearing dence from the issue, nation of the recusal but with the (1) Judge alleged O’Brien’s bias: the testi following proviso: mony judges City of two from St. Louis ... court no hearing [I]f finds basis campaign concern that a expressing O’Brien, Judge for disqualification being waged by judges other favor of proceedings may reassigned Rule 29 Judge Corrigan against the author of Judge re-entry O’Brien for of his (2) opinion; this Court’s first letters sent judgment. judges to this other Court Id. at 505. asking to re Corrigan’s behalf this Court remand, assigned On the case was (3) case; newspa hear certain Smulls’ Hartenbach, yet another James Louis Post-Dis St. per articles from the County member of the St. Louis Circuit patch harshly Corrigan. critical of Court, who, evidentiary hearing, after an contends the evidence is relevant disqualify determined that the motion to engender sympathy it would because properly O’Brien was overruled. pressure directive, Judge Pursuant to this Court’s judge. his fellow Ad- O’Brien to vindicate reassigned Hartenbach ordered the case *7 ditionally, points Smulls to this evidence O’Brien, and then re- Judge Judge O’Brien that was influ- Judge establish O’Brien judgment overruling entered his Smulls’ factors, extra-judicial giving rise by enced appeals Rule 29.15 motion. now Smulls impropriety. See appearance to an of Judge the determination that O’Brien Hunter, (Mo. 850, v. State 840 866 S.W.2d properly could hear the motion as well as 1992). banc Judge O’Brien’s denial on the merits of his motion. Rule 29.15 rejected this evi- Judge Hartenbach This because it was irrelevant. dence Disqualify Motion to Smulls’ II. agrees. did not show Court Smulls Judges County All St. Louis exposed any of Judge O’Brien had been remand, did specific question, the evidence in nor After the 1996 Smulls filed attempt Judge current for to ask O’Brien disqualify a motion to all and during testimony at the County mer Louis Cir O’Brien’s judges of St. about Al- hearing Judge Hartenbach. cuit. That motion was overruled. The before testified that he was appeal though Judge on the second O’Brien issue was briefed State, v. newspaper articles on this Court and denied. generally 10 aware of issue, not recall the content attempts now he could S.W.3d at 499-500. Smulls
145 recognizes “justice must the concern from the tive standard any of them. As for justice.” Lilje satisfy appearance and the letters City judges two St. Louis Court, Corp., O’Brien testified Acquisition to this Health Servs. berg v. by legal 865, 2194, he was not aware of effort 847, 100 108 S.Ct. 486 U.S. opin- community to influence this Court’s (1986). standard, this L.Ed.2d 855 Under knowledge he had no of the ion. Because person” gives is one who due a “reasonable articles, letters, rejected testimony, and judges act regard presumption to the “that influenced could him. Even they not have honesty integrity and will if had been aware of the Judge O’Brien in preside a trial which undertake evidence, require this alone would not v. Kind they impartial.” cannot be State pre- disqualification judges because are 1996). (Mo. er, 313, 321 banc 942 S.W.2d sumed to be able to set such evidence addition, person” is one In a “reasonable deciding aside in a case. See State v. knows all that has been said “who (Mo. 209, Taylor, 929 220 banc S.W.2d presence judge.” done 1996). (Mo. State, 199, 203 Haynes v. 937 S.W.2d 1996). process Finally, banc as to due Impartiality B. O’Brien’s Supreme has made challenges, the Court Smulls next claims Harten- “only clear that the most extreme in his bach erred determination that disqualification on this basis cases would impartially O’Brien could hear Smulls’ constitutionally Aetna required.” Life Rule 29.15 motion on remand. The basis Lavoie, 813, 821, Ins. 475 U.S. Co. claim, on, point of the from Smulls’ relied 1580, (1986); L.Ed.2d 823 see also S.Ct. Corrigan is that “O’Brien was with when Jones, 171, 177 State v. 979 S.W.2d Corrigan calling condemned this Court’s may partic him ‘a racist’ have ipated criticizing pro language allegations In view of the raised lobbying against thereby duced Court particularly helpful. are two cases creating appearance improprie Nunley, State v.
ty....” claim against This arises the back 1996), presented an issue drop of original this Court’s revision of its resentencing judge whether a from opinion I by deleting in Smulls certain original judge circuit could same as the language highly that was critical of original trial feelings “set aside his for the Corrigan. See Smulls v. 10 S.W.3d sen- judge” independent and come to an J., 2 (Limbaugh, dissenting). at n. tencing Similarly, determination. State defen- Taylor, Due of the Process Clause *8 collegial rela- argued dant that due United States Missouri Constitutions tionship resentencing judge between guarantee impar a criminal defendant an resentencing original judge, and the tribunal, permitting any litigant tial to re “give[] original judge would want to judge. Taylor, move a biased State v. imposing judge a vote of confidence” 3(D)(1) at 220. of the Mis Canon Nunley In both the same sentence. Conduct, 2.03, souri Code of Judicial Rule disqualifica- that Taylor, this Court held judge proceeding requires a to recuse required absent evidence of a tion was not person would have a where “reasonable relationship judges special between judge’s impar factual basis to doubt the impro- appearance might that create tiality.” Id. This standard does not re Id.; at 918. bias, objec priety. Nunley, 923 S.W.2d quire proof of actual but is an Here, Judge Corrigan’s has failed to establish that because it was critical of special relationship fitness for the bench. such a existed. Judge that Finally, there is no evidence particularly,
More there is no basis for “participated criticizing lan- O’Brien establishing special relationship, that much guage produced lobbying against that appearance impropriety, through less an noted, Court,” nor, as is there evidence Corrigan knew allegation O’Brien allega- knew of Judge O’Brien even him calling condemned this Court for “a fact, criti- only tions to that effect. In racist,” O’Brien, himself, may and that cism on this record was that this Court’s original opin- criticized have this Court’s Corrigan’s fit- regarding Judge comments regard, Judge ion. In that the record of a matter better ness for the bench was Judge Corrigan O’Brien’s interaction with Retirement, suited for the Commission on following: Judge Corrigan shows the testi- Discipline. That criticism Removal and fied that he discussed this Court’s decision bias, if for disqualifying does not establish many judges County with on the St. Louis no other reason than that the criticism was bench; judges some of those criti- Circuit deleted the com- validated when this Court opinion, cized this Court’s and he and Judge Corrigan’s fitness. regarding ments the case at some Judge O’Brien discussed point of this between the issuance Court’s sum, prove, failed to either however, original opinions; and modified through special existence of a relation- Judge Corrigan was not sure whether his Judge ship Judge between O’Brien and superfi- Judge discussion with O’Brien was com- Corrigan through Judge O’Brien’s Judge cial was or even whether O’Brien themselves, actions that a rea- ments and opin- criticized the judges one of the who person would have reason to doubt sonable ion. impartiality. Judge O’Brien’s testified that he did not Judge O’Brien Denial Rule 29.15 Claims IV. express overhearing Corrigan recall Hearing Evidentiary with specific including any any disagreement, specific disagreement language with used The effect of this Court’s determination original opinion. in this When Court’s could hear Smulls’ O’Brien if discussed asked he and hearing is that O’Brien’s Rule 29.15 Smulls, Judge the racial bias claim is reinstated. Smulls’ denial on the merits stated, “I’ve heard statements twenty-six motion contained amended none of which by Judge Corrigan, made All five were dismissed with- claims. opinion came out were after the modified An evidentiary hearing. evidentia- out an think them dealt with any claims, ... I don’t on the five ry hearing granted opinion. I think specific issues within the se pro from Smulls’ as well as several just displeasure an overall These include ineffective assis- motion. (a) opinion.” Judge O’Brien also testified claims for failure tance of counsel not have contact with Corrigan’s disqualification, he did move for (b) opinion was Corrigan present gunshot after the modified the results of failure to *9 issued, anyone contact and his performed and he avoided tests on Smulls residue (c) present it certain accomplice, he knew was failure to discussing case because (d) phase, and mitigating penalty to hear factors possible assigned that he would be testifying from most, opin- discouraging Smulls presumed case. At he claims were favorite,” All of these second trial. Judge Corrigan’s ion “was not the vic- have been aware Corrigan is as fol- would The standard of review denied. and the defendant tims were white lows: presided over the first because he black to deter- This review is limited Court’s did not Corrigan stated he Judge trial. clearly mining whether the motion court was black and who remember who conclusions. findings erred in its and white, the defen- accept that he would of the mo- findings The and conclusions then reiterated his dant’s statement. He if, only clearly tion court are erroneous Batson claim. denial of the When record, the after a review of the entire Sidney was again noted that Ms. defendant appellate court is left with the definite venireperson, Judge Corri- the last black impression that has a mistake been that he did not know what gan stated made. black, that he never takes meant to be 576, 581 Rousan v. judicial person’s of a race without notice 2001) (citations omitted). evidence, and that it is counsel’s direct Judge Corrigan’s A. Failure to Move to establish who is black and responsibility for Disqualification regard, In this he added: who is not. appeal claim principal of this complexioned There were some dark Smulls’ trial counsel was ineffective I if that people jury. on this don’t know Judge evidence of failing to discover Corri- said, or white. As I I makes them black gan’s disquali- racial and move for his bias know what constitutes black. don’t claim essentially fication. This is based they say drop one ago Years used allegations the same and conduct I don’t know blood constitutes black. disqualifying Judge considered in Court somebody black means. Can en- what Corrigan hearing from the Rule 29.15 mo- black I don’t lighten me of what is? 1) case, prior tion: to the Cor- know; people. I think of them as joke rigan group told a racist to a
judges, judgment had been entered 1. Exclusion Evidence harassment, against him for sexual and error to Initially, assigns against that he discriminated African- exclusion of certain evidence re- O’Brien’s disposition American defendants in the Corrigan’s prejudice. racial garding Judge cases; 2) during criminal and case, racially he made insensitive com- Transcript a. hearing.
ments at the Batson Unofficial Although During original proceed of the Bat- 29.15 circumstances for admis hearing reported extensively ings, request son were Smulls directed a opinion, they repeat- prosecuting attorney seeking sions to the the first Smulls bear black, ing here: The defendant noted that Ms. to establish that the defendant was white, jury panel and the Sidney only remaining was the black veni- the victims were Following long all white. reperson requested hearing. a Batson selected was standing practice for non-evi- prosecutor stated his reasons for custom When cases, dentiary hearings motion in civil striking Sidney, Ms. Smulls’ counsel Corrigan provide did not the court’s pretextual claimed the reasons were Therefore, reporter. a mistrial. The court denied official requested private reporter court to the day, brought The next request. defendant’s and transcribed the hearing chal- who recorded Smulls’ counsel renewed the Batson Corrigan: following statements from lenge and stated for the record that *10 position hearing, Judge Corrigan the that tial Rule 29.15 This Court won’t take people are white or black. It is the years referred to the woman who before you that can’t look at position Court’s sued him for sexual discrimination as people and determine what their race is objected to the “white.” The state testi- lawyers .... If the don’t want to ask the mony grounds, including on several rele- jurors people or whether the are white sustained the vancy, and O’Brien if or black or ask a witness he’s white objection. testimony was of- Although the black, I think that I—I can then don’t Corrigan’s possible fered to show parties to make that admission. ask the race-recogni- about bias or untruthfulness hearing At the 29.15 remand before tion, counsel’s inef- it is irrelevant to show O’Brien, tran- tried to admit this failing fectiveness for to discover that bias script, transcript that the demon- arguing or untruthfulness. For this evidence to be professed inabili- Judge Corrigan’s strates claim, to that the evidence must relevant ty acknowledge person’s to a race. Smulls known to counsel or discover- have been present testimony and an also wished to during investigation. able reasonable original affidavit from his 29.15 counsel White v. 895-96 that made Judge Corrigan statements indi- 1997). However, Judge Corri- cating recognize person’s he could a race gan’s statement was not made to counsel when he so chose. hearing, until initial 29.15 after the Rule state, objection by
On the pre- have trial. counsel could not Smulls’ transcript properly excluded the on the disqual- in a motion to sented this evidence reporter was not the official basis trial, ify during many or months before reporter appear did not reporter, court was made. before statement attempt to authenticate hearing at the ” transcript and the was not transcript, c. “Barbecue Joke Evidence 57.03(f) addition, Rule self-proving. Postr-Dispatch published A article deposition that after a is taken and
states Corrigan said reported in 1983 transcribed, it must be submitted to the that, can’t during meeting judges “We deponent reading signature. for his we don’t have a barbecue because have (g) This was not done. Subsection then cooking.” judge black to do the provides signature of the officer for the not to claims he offered this article estab deposition, in the ab transcribing any in fact black lish whether there were deponent, signature sence of the of the Circuit, but judges County in the St. Louis guarantee the that attestation does not was bi accuracy transcript. of the to establish Coffel (Mo.App. public knowl Spradley, 495 S.W.2d ased and that his bias was reasons, the tran For all of these He claims his counsel knew edge. given script Regardless, was inadmissible. alleged this evi should have discovered transcript bias, the similarities between that contributed to dence of and that during statements Judge Corrigan’s failing to file a counsel’s ineffectiveness evidence, hearing already in Batson disqualify Judge Corrigan. motion been cumulative. transcript would have article was hear Judge O’Brien ruled the say. Race-Recognition Testimo- b. Counsel’s
ny “A out- hearsay statement prove statement that is used of-court attempted counsel former Smulls’ and that ini- the matter asserted during the truth of testify via affidavit *11 2) “white,” reflecting sheets and docket depends veracity on the of the statement African- heard that the case was Rodriguez its v. Suzuki Motor value.” relevancy purported judge. American Corp., 996 S.W.2d that it tended to show of this evidence was To the extent that the article was offered bias, identify could Judge Corrigan it Con- that prove was inadmissible. chose, and party when he so position, the truth of race of a trary to defendant’s prove[d] why Corri- they “demonstrat[ed] that could the matter asserted is not approximately year one later told gan have a because there were no barbecue available, matters were not joke.” These judges Judge black but that Cor- barbecue motion, and pled part of the Rule 29.15 rigan they said could not have a barbecue as properly excluded for judges there were no avail- the evidence because black SALTZBURG, if those matters were A. that reason. Even able. See STEPHEN AL., pled, relevancy of the evi properly ET FEDERAL OF EVI- RULES (7th ed.1998). tenuous, especially light in of this MANUAL 1466 dence is DENCE hand, original in holding article admissi- Court’s On the other opinion gender discrimination suit allegation Judge to show that the ble pub- question disqualify Judge did not Corri- Corrigan was biased was a matter of and, fact, claims. gan hearing gender-Raisoii from knowledge, Judge lic O’Brien at 16-17. testimony for that limited State v. admitted the purpose. testimony e. Dr. Galliher’s Exclusion of deposition
Smulls also offered the
testi-
Galliher,
Dr.
Smulls called
John
Campbell,
of
mony
Judge
who related
professor
sociology
of
who had reviewed
personally
he
overheard
Judge Corrigan’s
during
conduct
various
joke.
making
O’Brien disal-
racial
trials in order
to establish
bias.
hearsay grounds,
lowed this evidence on
excluded the evidence for
but the state has made no effort
its brief
reasons,
variety
ultimately concluding
ruling. Assuming
to defend the
the testi-
testimony
that the
was not credible. On
admitted,
mony
is
should have been
review,
will
appellate
such a determination
probative
much
coun-
less
what Smulls’
rarely
a trial court
be overturned because
sel knew or should have discovered about
position
in the best
to assess the credi
newspaper
the matter than the
article. To
expert testimony.
bility and usefulness of
extent
O’Brien disallowed
State, 48
at 589.
Rousan v.
evidence,
discounted this
Smulls was not
prejudiced.
dis-
proof,
In an offer of
Dr. Galliher
length
the existence
effect
cussed
Evidence
d. Gender Discrimination Suit
society,
in our
unconscious racial bias
falsely claim not to
people
the motion court
with such bias
Smulls next claims
jokes
tell
recognize
related
race and will
excluding
erred
certain evidence
be able
that there is
express
feelings,
their
gender
to a 1982
discrimination suit
and ra-
gender
in a
a correlation between
bias
against Judge Corrigan that resulted
excerpts
him
cial bias. He also commented
judgment against
reported
as
Good
County,
from Smulls’ trial and several
win v. Circuit Court
St. Louis
(8th Cir.1984).
concluded that
Corrigan’s other cases. He
the defendant a “mad but provided necessary. time would be as case, rapist; a serial in another dant was deposition for March Smulls scheduled the man,” a “flim-flam he called the defendant 9, 1998, on that O’Toole died guilty found but the defendant had been can very day after an extended bout with employer. forgery defrauding cer. This hard comparable. other cases are is proof pattern of a of racial bias. More
ly state had no first claims that the Smulls over, identify Dr. was not able to Galliher request stay. Smulls standing to imposition any prejudice the actual procedure civil mistaken. The rules of Corrigan con sentences and noted Rule Rule 29.15 motions. apply to sistently jury’s followed the recommenda 56.01(c) 29.15(a). any party permits Rule reasons, Judge For these tion. A protective for a order. to file a motion rejecting not abuse his discretion did within that stay for a order falls request testimony. Dr. Galliher’s rule. Attor- f. Smulls’ Defense trial Affidavits from next claims that the court’s Smulls neys be- deposition improper stay of the to a wit- denied access
Next, cause Smulls was complains “Trial “evi- who had useful information. improperly excluded ness Judge O’Brien Judge Corrigan’s Char- 3. Admission courts have broad discretion administer acter Witnesses discovery, which this Court ing rules will not disturb absent an abuse of discre objected to the relevan Dandur tion.” ex rel. Crowden v. State promi cy presentation the state’s of five and, 340, 343 attorneys defense who know nent criminal noted, the state’s As the basis of motion reputa to his Judge Corrigan and testified *13 deposition premature was that the was judging being tion as free of bias when unduly burdensome until the motion court African-Americans. involving cases to determined whether Smulls was entitled concedes that character evidence Smulls evidentiary hearing. stay an The nature of put by relevant when in issue 56.01(c), permits proper under Rule which complaint real proceeding, and his “any the trial court to make order which character evidence has no seems to be that justice protect party per to a or requires However, inqui an bearing on racial bias. embarrassment, annoyance, op son from ry judge’s alleged racial bias cannot into a pression, expense.” or undue burden or inquiry conducted without an into the 56.01(b)(1), Smulls’ citation to Rule which presence judge’s character because or parties discovery that states are entitled to part judge’s absence of racial bias is of matter, on relevant does address Where, here, party has character. as Judge ruling the issue. O’Brien’s was not of opened by introducing the door evidence a determination that Smulls was not enti bias, by bad character as manifested racial discovery. stay to the tled party may the other introduce evidence place only granted evidentiary until he good by character as manifested the lack prior hearing and was lifted three months of racial bias. Judge O’Toole’s death. There was no State, v. 785 S.W.2d Citing Clemmons Fergu abuse of discretion. See State v. (Mo. 524, 1990), also ar- 531 banc Smulls son, (Mo. 2000). 20 504 S.W.3d banc gues reputation that the character argues that Judge
Smulls also competent testify were not witnesses improperly refused testimony solely to continue eviden- because their relates tiary hearing until It Judge O’Toole could be the motion court must decide.” “issues however, deposed. testimony, filed a requesting motion is clear from their or, minimum,” testifying a continuance “at that the that the witnesses were not as law, open’ experts persons court “hold the evidence” until the a matter of but as Corrigan’s judicial deposition response, Judge could be taken. In familiar with Clemmons, motion, temperament. O’Brien denied the stat- In the attor- neys impermissibly testifying regard- ed he at the grant would a continuance were counsel, an deposition ing evidence if ineffective assistance of close Smulls’ contrast, the wit- yet had not been secured. It is well set- issue of law. Id. bias, a fac- deny regarding a nesses here testified grant tled that decision to “[t]he Kinder, ... tual See State v. request for a continuance rests within determination. (Mo. 1996); at State the trial court’s discretion and will not be 942 S.W.2d 334 banc (Mo. Thomas, 409, 413 banc v. 596 S.W.2d showing absent a clear of abuse reversed 1980). Barton, v. 998 of discretion.” State 1999). Because S.W.2d Racial Analysis the Evidence willing grant
the court was a continu- Bias deposition ance if O’Toole’s was not case, that time To succeed on the claim taken Smulls rested his disqualified trial counsel should have there was no abuse of discretion. Furthermore, had counsel conduct- of racial even ground on the pre-trial investigation that ed the kind bias, that there was Smulls must show now claims was re- hindsight, disqualifying bias that his evidence of such likely would have quired, investigation discov trial counsel knew of or could have up turned as much evidence ered a reasonable amount of investi was not biased as evidence Corrigan 895- gation. White criminal defense he was biased. The five Twenter, 96; State practice regularly before lawyers who has not done so. Corrigan unequivocally testified evidence pre-trial, Most of the out-of-court African-American clients had their Judge Corri- purportedly indicated Camp- even fairly, been treated gan’s racial bias should not be considered bell, that he overheard the who testified from evi properly it was excluded because joke years ago, qualified his state- racist *14 hearing Rule 29.15 before dence at the during the testifying ment then that newspa particular, the Judge O’Brien. Judge many years he had served with per joke the racist was hear article about or Corrigan, he had never heard of a claim report from Dr. on say, and the Galliher against racial made him. allegation of bias disparate treat Judge Corrigan’s allegedly circumstances, counsel cannot Under these was not based on ment of black defendants Judge move for failing faulted for be credibility and lacked oth study scientific trial. Corrigan’s disqualification before erwise. have moved to counsel should Whether properly Even if that had been evidence his com- disqualify Judge Corrigan after admitted, it that trial coun- is not evidence perhaps hearing at the Batson is ments of or could have discovered with sel knew ultimately, the issue question, another investigation. To a reasonable amount of to be resolved is whether counsel should Judge Judge Corrigan attempted disqualify evidence that al- Corri- uncover have during joke in- of his comments single gan racist to an on the basis legedly told a Although alone. hearing the Batson years ten judges formal of some group opin- in the first Smulls Court determined trial, joke even was re- before when racially in- comments were ion that those newspaper, required in the is not ported sensitive, at 935 State v. S.W.2d part investigation. reasonable as 26, from Corrigan’s disqualification Judge considering true trial especially This is proceeding required the Rule 29.15 only has limited resources and counsel coupled were those comments because as to necessarily given deference must pre-trial, allegations the several with scope investigation. of such target the likelihood misconduct and out-of-court 121, 143 Clay, See State himself, would be a Judge Corrigan, that 1998). (Mo. applies This conclusion banc at 27. allegations. those Id. witness for investigation kind all the more to the impor- by Dr. More conducted Galliher. judge disqualify The decision to not know the need to tantly, counsel would strategy. State v. a matter of trial (Mo. al- investigations until the conduct these banc Ayers, 911 S.W.2d 1995); remarks were legedly racially insensitive see also Wilson 1982). hearing the Batson As during made 248-49 S.W.2d after strategy, appellate Only then did all matters of trial trial had commenced. to trial properly deferential prejudice racial courts are Judge Corrigan’s issue State, 39 Lyons v. counsel’s decisions. clearly present itself. Corrigan correctly denied In that and that 14-16. challenge. Id. at the Batson may well be that trial counsel regard, indicating no evidence advances perceived Judge Corrigan’s that Batson Smulls simple fact is that Fur- otherwise. The innocuously. were made comments Batson ther, skepticism Smulls’ acknowledged Corrigan’s that there was counsel obstinate, or did hearing, honest important strategic reason to whether at least one being claims from prevent not Smulls’ keep Judge Corrigan on this case: prove that the outcome jury that the instruction heard and did Corrigan believed the trial as a whole was impose hearing of that permitted judge product judge’s of the bias. penalty jury agree if the could not death 313.48B, punishment, MAI-CR3d Because Retention Disqualification B. unconstitutional, stat- Vote diffi- extremely ed that he would have penalty if the imposing cult time the death next claims that his coun record, can-
jury did not. On this counsel failing for to have sel was ineffective being not be convicted of ineffective because Corri- Corrigan disqualified Judge Corrigan. failing disqualify reten upcoming about his gan was worried general election. tion vote the 1992 Finally, hindsight shows concern, explains given *15 disqualify Judge Corrigan not to decision unwilling Corrigan would be to con prejudice. not result in cannot did Smulls instead of the death sider a life sentence point judicial evi decision that penalty willingness because a to consider Corrigan’s alleged or in dences bias support at the might life sentence erode Judge Corrigan’s alleged pro bias which claim is frivolous. The 1992 polls. This unjust ex duced an result. This Court election was held Smulls’ general before 1996 decision that pressed concern its trial. Judge Corrigan’s acknowledge refusal to questions race raises “serious about his Present Residue C. Failure to Gunshot requires,” to do what Batson willingness Evidence 26, 935 at and this Court S.W.2d per residue tests were “The trial court cannot add subtle Gunshot wrote: accomplice. No refusing formed on Smulls and process by burdens to the Batson Smulls, and the was detected on to take note of race where trial counsel residue However, inconclusive. accomplice on his was properly places it at issue.” Id. test trial, expert, the first the state’s During a careful review of the record shows unavailable, Rothove, par and the challenge was heard not Dr. was Smulls’ Batson twice, stipulation regarding once, agreed to a short hearing, but and at the first ties trial, At the second dispute did not that Ms. the test results. Rothove, Indeed, subpoenaed but Smulls’ counsel Sidney was African-American. him, just learned that having not call controversy did not arise until the did the theory day support when he would not hearing second on the second under fired the shots. As we memory accomplice had Judge Corrigan’s faded it, claim is that counsel did stand Smulls’ Sidney jurors and the other who were Ms. adjust Rothove time to not interview longer present. not were no Ulti selected ineffective and that counsel was origi strategy in the mately, this determined Court stipulation. present preempto- failing appeal prosecutor’s nal that the stipulation concedes that the pretextual not Smulls now ry Sidney of Ms. was strike 154 nonviolent, amicable, he abandoned at not available on retrial and claims his was
was childhood, impoverished, cared for his chil- indepen- counsel should have obtained an dren, helpful he was to friends and that pled. expert. dent This claim was not and relatives. Nevertheless, present attempted Smith, testimony of Donald a criminol- to inves required While counsel is re- ogist. gratuitously circumstances, tigate possible mitigating claim, rejected tes- viewed the Smith’s at there is nó Nunley, 923 S.W.2d timony identify because could not Smith evi duty present mitigating absolute shooter, suspects which of the two Shurn, 866 dence. State v. S.W.2d sufficiently duplicate did not the state’s 1993). Furthermore, 472 test, and was not otherwise credible. putting is not ineffective for “[c]ounsel evidence.” v. that his counsel on cumulative Skillicorn Smulls must establish State, S.W.3d failing an inde was ineffective to obtain pendent expert reasonably and that it is during presented five witnesses probable deficiency affected the Hively, a penalty phase: Dr. Wells outcome. at White S.W.2d had psychologist; pastor, Smulls’ who Twenter, 895-96; State child; supervi- known him since he was a that either one of the 640. Smith testified jail officer at the sor and a corrections shooter. defendants could have been the incarcerated; where Smulls However, tests, own conducting his father, who had raised adopted Smulls’ attempt the same Smith did not to obtain half year him since he was a and a old. crime, weapon used and he admitted is de- Hively explained Dr. that Smulls weapons of the same make different pressed, dependent personality, has a and model can “kick off’ different resi is not violent unless he is coerced. addition, dues. Smith was not certain pastor polite, re- testified that Smulls is *16 he the same machine and the state used spectful and not violent. The corrections the tests. He also was conduct unaware supervisor that he was guard and testified struggled grass that Smulls wet with not cause good a worker and that he did police continuously wiped his and trouble. His father testified Smulls hands, which can remove residue. See did not abandoned as a child and Lockhart, 1226, v. F.3d Wainwright 80 school, that he still cared high finish and (8th Cir.1996). upon 1230 Based these own blood. for Smulls as he would his factors it cannot be said that it was clear testimony and Most of the witnesses error for the motion court to find Smith’s pre- his counsel should have Smulls claims lacking credibility. See State evidence testimony would be cumulative of sented Hall, v. 982 S.W.2d 687-88 In addi- already presented. that had been 1998); 1230 Wainwright, 80 F.3d at tion, court, in the best the motion which is credibility, found that position to evaluate Mitigating Present Cir- D. Failure to not a number of these witnesses were cumstances Edwards They Randy credible. include Brown, who arrived and Dennis both Smulls claims ques- typed a list of testify claim that court to clearly denying erred in his answers; Crispin parenthetical failing for to inter tions with counsel was ineffective Smith, relationship” with a “close mitigating wit who had present and certain view know he supposedly did not phase. These wit Smulls but during penalty nesses Cain, knew parole; Maggie who have testified that was on allegedly nesses would
155 (1) must the motion church; requirements: three and Patricia only from Smulls conclusions, facts, warranting allege him not Lee, only passing. who knew (2) relief; must raise alleged the facts this matter were findings court’s motion State, the files and by refuted Rousan v. 48 matters not clearly not erroneous. (3) case; matters Furthermore, in the and fight records at 589. S.W.3d complains must have jury, movant by factors found of which aggravating prejudice. that the additional resulted in Smulls has not shown produced testimony would have mitigating (Mo. State, 21 S.W.3d Morrow presented had it been at a different result 2000). trial. the Death Prosecutor’s Motive to Seek
A. Penalty Testify Decision Not to E. Smulls’ trial counsel claims his his counsel was Smulls
Smulls claims investigate failing for advising testify. not him to was ineffective ineffective for trial, motive to challenge prosecutor’s testified at his first Again, to estab penalty. the mur seek the death jury could not reach a verdict on assistance, must de a ineffective gives der count. He claims this rise to lish attorney failed not the information his probability” “reasonable that he would scribe discover, that a reasonable inves allege he at his have been convicted had testified State, the infor tigation have uncovered second trial. See Rousan v. would mation, would prove the information at 581-82. “Advice of counsel S.W.3d more, position. testify, a defendant not is have aided his White without Twenter, 895-96; at State v. incompetent might when it be consid 939 S.W.2d Further, show “[t]o at 640. strategy.” ered sound trial State v. Pow ell, pen prosecutor sought the death that the S.W.2d reasons,” racially discriminatory history, alty criminal Smulls has extensive prove prosecu subject which of cross-examination defendant must discriminatory effect” tor’s had “a during probable the first trial and a sub decision and that the decision was ject during the sec on defendant of cross-examination discriminatory purpose.” ond trial. This would have undercut his “motivated State, 21 Fi theory ringleader that he was not the of Morrow v. *17 addition, proof offer clear nally, In trial court movant “must robbery. in his own case.” State v. him his not to tes discrimination discussed with decision Brooks, testimony at at 499. tify. argument that his S.W.2d hung jury the first trial caused the is (1) he is an alleged motion that: Smulls’ speculative, and he has not demonstrated disadvantaged African-Amer- economically anything that his counsel’s decision was (2) ican, and were Caucasian his victims strategy. other than sound trial See State in an affluent Cauca- the crime occurred Chambers, 93, 112 v. 891 S.W.2d (3) suburb, pre- evidence would sian factually in homicide similar sented state defendants the cases with Caucasian Denial Rule 29.15 Claims Without V. (4) penalty, not seek the death did Evidentiary Hearing an in case be- penalty sought death was motions, In relief post-conviction (5) African-American, reason- cause he is investi- competent counsel would have ably evidentia- appellant is entitled to an [a]n (6) matter, he gated and raised only if his motion meets ry hearing unavailable, Hively, Dr. prejudiced. claims that fear of who worked Smulls case, they expert are with the on the was called as African-American males because “causally replacement. motivated the Counsel cannot be faulted linked to crime” call prosecutor penalty. to seek the death because she had little choice but to report. another witness familiar with the support of these alle- Smulls’ evidence addition, testimony trial counsel’s to the Report of a Force gations consisted “Task contrary notwithstanding, unlikely the African-American on Status of prejudice suffered from coun- Smulls plead- Male in attached to his Missouri” present expert choice to a different sel’s purportedly capital ings, which showed report. prepared than the one who “glaring cases a racial difference” that “re- Hively testified that his entire of- Doctor discretionary sults from the decisions fice, himself, was involved including prove prosecutors.” This evidence fails preparation report, of the that he exam- specific purposeful discrimination to his times, opin- ined four and that his State, case. v. at 825. Morrow upon examinations as ion was based those Furthermore, where, here, as the facts psychological tests well as the results of support strongly the case the existence court’s police reports. The motion factors, statutory aggravating not to men- clearly errone- denial of this claim was history, tion Smulls’ extensive criminal ous. likely seeking the death motivation strength prosecution’s penalty is the of the call- alleges that instead of Smulls also id.; Brooks, case. See 960 S.W.2d State have ing Hively, Dr. his counsel should 499-500. does not The record warrant “comprehensive mental health ex- called finding much less a evidentiary hearing, an failing not ineffective for pert.” Counsel is of ineffective assistance of counsel. experts. shop around for additional at 41. Lyons v. 39 S.W.3d takes with the
Smulls also
issue
interrogato
motion court’s refusal to allow
Penalty
Opening
Phase
Statement
C.
this claim.
the determina
ries on
Because
in
claims his counsel was
deny
tion to
the claim without an eviden-
during opening
commenting,
effective for
tiary hearing
properly
solely
made
penalty phase,
that Smulls
statement
motion and the files and records of
“the
job
disability
of a
could not find a
because
case,” discovery
the determina
before
easy
an
and turned to a life of crime as
tion of which claims warrant an evidentia-
prior felony con
way out. Smulls’ eleven
ry hearing
premature.
would be
See State
impeach his
admissible to
victions were
Discovery
at 504.
Ferguson,
credibility if
took the stand and admis
he
unwarranted
after denial of such a claim is
factor
aggravating
regardless
sible
as
discovery
longer
is no
“rele
because the
common and
penalty phase.
It
is a
subject matter
in the
vant to the
involved
*18
to mention convic
proper
strategy
defense
action.” Id.
pending
in
to soften the blow. See
tions first
order
Testimony
Hively’s
B.Dr.
577 S.W.2d
Richardson
1979).
was not ineffec
Counsel
erred in
Smulls claims his counsel
in
regard.
tive
during penalty
calling
Hively
Dr. Wells
Hively
not the au
phase because Dr.
was
Object to Instructions
D. Failure to
report,
psychological
thor of Smulls’
which
counsel was ineffective
in
claims his
prepared
mitigation.
as evidence
confusing
object
allegedly
report
failing to
to
expert
prepared the
for
The
who
PRICE,
HOLSTEIN, BENTON and
pres-
to
phase instructions and
punishment
JJ.,
juror
concur.
accuracy
the
of
survey data on
ent
that this
concedes
comprehension. Smuils
J.,
opinion
in
WOLFF,
separate
concurs
claim in
rejected such a
recently
has
Court
filed.
Deck,
527, 542-48
State
claim is denied on
The
STITH, J., concurs
DENVIR
LAURA
basis.
separate
in
part
in
and dissents
part
opinion filed.
E. Voir Dire
WHITE, J.,
opinion
of
concurs
was ineffective
claims his counsel
Smuils
STITH, J.
DENVIR
LAURA
the trial court
object
to
when
failing
that,
speaking,
the
“theoretically”
stated
WOLFF, Judge, concurring.
to
does not have the burden
defendant
opinion, but
principal
to death.
in the
put
he should not be
I concur
prove that
question
to raise the
dialogue
separately only
The record reflects
extensive
write
nine
allowing each side
juror
during
which
question,
with the
of the wisdom
system
challenges.
it clear that the state
Our
peremptory
the trial court made
context,
encourages
challenges greatly
and peremptory
the burden. Taken
bore
jury
selection
person
did not serve
the racial discrimination
considering
79, 106
Kentucky,
not
476 U.S.
jury,
explanation
the court’s
did
that Batson v.
(1986),
burden,
attempt-
any claim the
L.Ed.2d 69
misallocate the
S.Ct.
Moreover, jury selection is
speculative.
is
jury was tainted
ed to end.
by either
manipulated
susceptible
being
to
Appeal
Direct
Denied on
VI. Claims
to the extent
or defense
prosecution
to
appear
resulting jury does
a
motion also raises
number
Smuils’
cross-section
from a reasonable
drawn
claims in
ineffective assistance of counsel
community.
denied
underlying issues were
which the
(1) failure
appeal:
this court on direct
Hell,
said,
paved
to
it is
The road
prove
prosecutor’s
for strik
to
reasons
was decided with
intentions. Batson
good
Sidney
pretextual,
were
State v.
ing Ms.
eliminating racial
best
intentions —
(2)
14-16;
to
at
failure
peremptory
in the use of
discrimination
the entire venire because
quash
move to
case,
tor-
with its
present
challenges.
permitted
juror who had been stricken was
intentions
history,
good
shows that
mented
(3)
19;
at
stay
questions,
and answer
id.
Hades,
road
but the
not have led to
may
mitigating
factor
present
failure to
as
difficulty.
fraught with
surely has been
shooting
accomplice
that the
admitted
predicted
Marshall
Thurgood
Justice
(4)
victims,
20-21;
failing to
id. at
for in Batson
provided
protections
that the
jury
ex
move for a mistrial when
Batson, 476
largely illusory.
would be
safety in notes sent
pressed concern for its
(Marshall,
con-
159
500,
(Mo.App.1993),and State
503
challenge brings up a S.W.2d
peremptory
The
Hudson,
477,
(Mo.App.
prosecuting
of a
at-
481
tension between two
v.
duty zealously
ethical
torney’s
1991).
duties —the
I
I
what
am not sure
understand
the duty
to
the client2 and
to
represent
postal
against
have
attorney
would
If the
justice,
merely
to convict.3
seek
workers,
race-
is a
less
it
more or
lax, then it
of Batson is
is
enforcement
neutral reason.
easy
prosecuting attorney
for the
to
fairly
penalty
this Court’s death
Examining
duty zealously
represent
to
the
let
largest juris-
cases from the state’s three
justice.
duty
override the
to seek
client
dictions,
Louis,
Louis
city of St.
St.
Preventing
jury
racial
discrimination
se-
since the
County,
County
and Jackson
part
justice
of seeing
lection is
is
1977, penalty
death
reinstated
Berger
States,
done. See
v. United
295
12
in the
following
found:
of 26 cases
are
78, 88,
629,
55
79 L.Ed.
U.S.
S.Ct.
1314
Louis,
of
in St.
(1935).
City of
seven
17 cases
part
justice may
St.
But this
of
not be
prosecutor
believes that
four
12 cases
County,
done where
Louis
of
justice requires
of the
conviction
defen-
chal-
County
Batson
Jackson
contained
dant, although
trump
this
should not
belief
were
lenges.
challenges
of Batson
None
norms.
other ethical
examining
all
appeal.
successful on
reported
appeals
1995
criminal
since
prosecutors
peremptory
use their
When
challenges,
appears
contain
Batson
challenges to strike African-Americans
100
cases. Of
there have been about
such
jury panel,
from the
Batson challenge
a
race,
placed
two
remanded
frequently
concerning
results. The burden is
those
were
upon prosecutor
racially
Bat-
give
proper
a
a
neutral
to the
a
trial court
conduct
Jones,
for the
v.
reason
strike. State
979
Only
reported
son
one
case
hearing.4
1998).
171, 185
Accept
S.W.2d
trial
found that was remanded for new
racially
may
ed
neutral reasons
include
appellate
because the
court sustained
juror
“uncommunicative,”
seemed
that a
or
If
ef-
challenge.5
Batson
has
Batson
Batson,
a
“never cracked smile.”
476 U.S.
state,
it is
trial court law
simply
fect
1712, (Marshall,
106 S.Ct.
concur
Batson
where even rumors
sustained
If
ring opinion).
such reasons are suffi
challenges
by.
hard to come
are
strikes,
justify
prosecutor’s
cient
to be
Large-scale empirical studies seem
protection
illusory,
then the
of Batson
racial
lacking as to the effect Batson on
just
predicted.
as
Id.
Justice Marshall
But studies examined
discrimination.
Moreover,
question
may
of race
very
only
no effect
date show either
inextricably bound
in other
up
attributes
use
peremptory
limited effect on the
status,
juror,
of prospective
employment
Bal-
challenges to discriminate. David C.
example,
justify
the strike.
may
dus,
Challenges
Peremptory
Use
decisions,
Appellate
to illustrate
exam
A
Em-
Capital
Legal
Trials:
Murder
ple,
upheld
have
exclusion of African-
L.,
Pa.
pirical
U.
J. Const.
Analysis,
as
employment
post
because of
Americans
capital
A
February,
study
at 34.
Pepper,
al
See
v.
855
workers.
State
Johnson,
Nathan,
(Mo.App.
992
908
2.
S.W.2d
4. State v.
S.W.2d
State v.
Dunn,
1999),
and State
1985).
1994).
(Mo.App.
generally
to Missouri Rule 4-
See
Comment
Davis,
(Mo.App.
5. State
murder
by juries
Then,
cases tried
a
alty
over
16-
if
justify
the facts
it.
from that
year period in Philadelphia
penalty qualified”
“death
group,
found that Bat-
the state
permitted
son had no
is
prosecutorial
prospec-
effect on
strike nine of the
strikes
jurors
tive
against
for no reason. This
elimi-
may
African-American venire mem-
just
nate
everyone
about
who might
bers.
Id. at 70.
even
they
look
give
capital
like
could
a
defen-
Apparently the most substantial effect of
dant
the benefit of a reasonable doubt.
Missouri,
Batson in
regret
I
say,
has
Does
really
the state
need to strike nine of
been
question
to call into
the actions of the
its citizens in order for the state to receive
judges
two trial
in this case.
In addition
trial,
a fair
even
jury panel
after a
is
opinions
case,
to the
in this
see State v.
penalty
“death
qualified?”
(Mo.
1996)
of serves demonstrates STATE of events teachings prior of cases the wisdom of impro- appearance as to the doubts COLE, Appellant. Andre in favor recu- priety should be resolved Otherwise, here, fo- sal. as occurred No. SC 83485. and character cus will become conduct Missouri, Supreme Court whereas the focus judge, should En Banc.
fairness the trial of the defendant. Feb. 2002. focus, repu- Due this loss of both the 23, April Denied Rehearing judges tations of various Mr. Smulls’ unfairly trial left right a new have been the fair- years,
in doubt for over five judi- impartiality
ness and of the Missouri system into repeatedly
cial has been called *24 just type
question. It is avoid
situation that recusal should be ordered the appearance
where the facts raise even a impropriety eyes reasonable
person. This Court should have directed 29.15
in Smulls I that Mr. Smulls’ Rule now,
motion I so hold granted. be would so new can be
and remand that a trial simply fact
held. This scenario should permitted to continue.2 above, I
For the reasons set out concur part part. and dissent in impartial- ably question judge’s disagree principal opinion’s called into I with the also disqualify opinion really principal statement order ity. I believe the O’Brien, required to show Mr. Smulls principle: a espouse intends to narrower Corrigan "spe- Judges a O’Brien and had as merely being a member of the same circuit relationship.” special relation- cial While To judge not a basis for recusal. another would, course, per- ship give a reasonable impartiality, there must be doubt as to create grounds appearance of to find an son "factual factor,” as, “plus but not limited such some impartiality impropriety and doubt to, relationship judges. With special of the too, court,’’ I, 17, so, agree. principle, fully I this narrower presence facts reason- would the of other