*1 Missouri, Respondent, v. STATE TAYLOR, Appellant.
Michael
No. 77365. Missouri,
Supreme Court of
En Banc.
Aug. 1996.
Rehearing Sept. Denied 1996. *5 Summit, Carlyle, Unger Lee’s
Elizabeth Appellant. for Nixon, Attorney (Jay) Gener- W. Jeremiah LaHue, al, Kilpatrick, Jill C. Becky Owenson General, City, Attorneys Jefferson Assistant Respondent. WHITE, Judge. de- guilty to first Taylor pleaded
Michael 1986; 565.020, murder, RSMo gree section 571.015, action, RSMo section criminal armed 565.110, RSMo 1986; kidnapping, section 566.080, 1986; rape, section and forcible to death was sentenced 1986. He RSMo appel- has exclusive This Court murder. the Const, V, § 3. We art. jurisdiction. Mo. late affirm. Taylor times,
I. and Ann stabbed “two or three probably eyes how four.” He described “her According Taylor’s testimony at Ms head, up rolled and in her she was sort to guilty plea, Taylor’s videotaped statement her, trying like to catch her breath.” sentencing and adduced in other evidence the companion, hearing,1 Taylor and a Roderick Nunley Taylor argued about who rnght spent the of March Carlo, Nunley would drive the Monte Carlo, driving a stolen Chevrolet Monte up driving following Taylor ended it who was stealing “T-tops,” smoking marijuana and driving picked up car. another Nun- drinking point during At one wine coolers. ley after Monte he abandoned the Carlo with early morning they hours of March They Ann trunk. Harrison returned car, police were a followed but lost the Nunley’s Nunley disposed where house police Mgh speed chase highway. after on a sock, wire, and the the cable knives. a.m., they About 7:00 saw fifteen-year-old at When school bus arrived Harri- Ann waiting for the Harrison school bus at Ann, pick up son home the driver honked driveway. Nunley Tay- end her told because Mrs. she was there. Harrison lor, time, driving stop who was so out looked window and noticed Ann’s Nunley purse. Taylor could snatch her clothes, books, purse, gym lying and flute car, out, stopped Nunley got pretended driveway. go She waved the bus to directions, grabbed put need her and her daughter. on and began to look for her Po- Nunley. front seat between quickly ground lice and air mounted search. car, Nunley Once in Ann blindfolded with body Ann discovered Harrison’s the eve- Ms sock and threatened to stab with a her mng police of March 23rd found when quiet. Taylor if she was not screwdriver abandoned and a friend of Monte Carlo Nunley’s house and took Ann to drove opened car’s owner trunk. By this time her hands basement. were *6 bound with cable wire. physical The evidence included hair State’s matcMng from Taylor’s collected Ann Harri- Nunley Ann’s and had removed clothes body passenger son’s side of and the the Taylor forcible sexual intercourse with her. Carlo, matcMng Ann’s Monte hair collected They then had forcible intercourse with her. basement, Nunley’s sperm from and semen her, to untied and allowed her Ann dress. belonging Taylor on Ann’s to found clothes persuade tried to parents to them call for her body. autopsy and a An revealed lacerated ransom, Nunley and indicated he would take side, chest, vagina, six to Ann’s stab wounds telephone They put her to a to call home. penetrated and back wMch her heart and the blindfold back on her and tied her hands lungs, to her and stab wounds neck. four and of led her to the trunk the Monte Carlo. Ann Harrison The medical testified examiner Ann getting into the until resisted trunk was alive were when all the wounds inflicted Nunley necessary told it was her so she and could conscious for ten have remained helped would not Both be seen. men her probably stabbing. She minutes after the into trunk. the thirty attack. lived after the minutes Nunley to the then returned house for two kmves, knife and a a butcher smaller steak II. Nunley argued knife. Taylor with about Nunley Taylor pleaded kill four guilty whether to her. did want to the crimes on testify against February 8, Ann to be able to him and testified did 1991. He emphasized bargain and under- expect plea he and were in this to- receive or a gether. attempted penalty. Nunley then stood the the death to slash her State would seek hearing, the trial court sentencing throat but knife was too dull. After a He outweighed through Tay- aggravating the throat found circumstances stabbed her and told stab, Tay- Nunley mitigating and sentenced lor to “stick to circumstances her.” continued Nunley, Taylor's sentencing proceedings. 1. adduced in State v. Evidence hear- See 1996). ing factual reveals a different version of the Nunley’s crime than does evidence adduced in murder, hearing, the court overruled Rule degree day with lor to death for the first years of ten for armed 24.035motion. consecutive sentences action, years kidnapping, criminal fifteen III. rape. aggravated and life for 29.07(d) his Taylor attacks denial of Rule motion, timely a Rule filed 24.035 guilty of on plea to his motion withdraw alleged court which the trial was under sentencing grounds. claims the several He during sentencing of and influence alcohol to his motion court should have sustained hearing sentencing and was inef- counsel did not guilty plea because he withdraw failing of trial court’s fective learn plea bargain, the benefit of receive problem Taylor to advising alcohol before as personally admonish him court failed guilty. promptly trial court re- plead The 24.02, plea was not Rule presiding judge The of the sixteenth cused. knowingly voluntarily because made judges this all in the circuit notified Court Taylor was not informed of elements ap- This circuit were recused. Court then possibility degree and the murder special judge pointed a the Rule conduct sentencing, factual jury was insufficient there evidentiary proceeding. 24.035 After an plea was support plea, and the basis hearing, special judge Rule denied the a information. The defective offered Taylor appealed 24.035 sentence motion. addressing the instead of merits 24.035 This denial his Rule motion. claims, sentencing court argues the these summary issued a order in Court June from this Court was limited the remand stating, “Judgment vacated. Cause remand- only sentencing and was issues determine penalty hearing, for new imposition ed authority consider a motion to without sentence, entry judgment.” of new guilty plea. withdraw trial court transferred As in State v. discussed presiding judge remanded case to the this reassignment. presiding assigned judge summary remanding cause Court’s order the case to division nine the sixteenth plea, guilty neither affirmed nor reversed circuit. This Court ordered cause trans- sentencing court could consider the and the to a ferred from the first circuit on of a 29.07 motion. We review denial Rule March but rescinded the order guilty presentencing motion withdraw April sentencing 5. second Before the hear- *7 an ruling if court’s is plea to determine the ing, Taylor’s the court denied 29.07 Rule McCollum, abuse of discretion. State guilty plea, motion mo- withdraw the his (Mo.App.1980). The accused is S.W.2d requesting jury sentencing, tion a for and his guilty a plea a as withdraw entitled asking disqualification motion for of the en- for right; matter of such relief reserved tire sixteenth circuit. The received court circumstances, extraordinary such as a show sentencing days evidence on in five of hear- fear, fraud, mistake, misapprehension, ing of ings during May and court June 1994. The holding hopes. of persuasion, or out false the beyond aggra- found a reasonable doubt nine vating outweighed by circumstances were mitigating Taylor the circumstance. was Bargain A. Benefit of the Plea degree sentenced to for the mur- death was the Taylor argues he denied fifty years of for der and terms consecutive plea bargain he was of his when benefit action, years kid- armed criminal fifteen for one by judge than the different sentenced napping, rape. and for life agreed plead originally whom before by expected the timely guilty. to be sentenced filed a Rule 24.035 motion He in full judge, possession for and original and amended motion. He moved sober also if preferable Although it is disqualification judge. of faculties. of the the death of his On plea is sentences judge judge to whom a made the who heard the most recent sen- the defendant, sentencing by a different tencing, the cause was transferred to another the judge proves unavail- original judge of a two- if the division sixteenth circuit. After sentencing understanding rights by not create all able for does manifest of waived injustice.2 Nunley, guilty plea. Taylor specifically at 921-22. testified he understood, of, and his determining The factor is whether the sen- was informed waived familiarity rights. He more than three hun- tencing judge has with answered questions encompassing dred all the re- prior proceedings to an rul- make informed quired advice in Rule 24.02 detail. on ing sentencing. Id. The record reveals only questions, court but did asked few sentencing court after remand from this interrupt as needed. correct elaborate days hearings, Court conducted five took participant. The court was an active judicial prior proceedings, notice all an made informed decision. Taylor contends the court’s failure use jus- its own voice to admonish the defendant Taylor argues the consideration for his plea. tifies withdrawal of the He looks only having open guilty plea was not him, support to Dean v. original judge judge sentence but the Dean, (Mo.App.1995). In the court held ask- unimpaired sentencing. pre- would be As rely- discussed, entitled, ing to read a document and viously Taylor was not as ing attorney to on defendant’s ascertain he right, a matter of be sentenced fulfill the understood the document did not judge plea. whom his before he entered requirements of the Rule 24.02 admonition. 29.07 motion was Rule filed before sentenc- case, court present Id. at 327. In the ing yet had not remand. Because he been actively court saw sentenced, was more involved. The impaired no there was sentencer it of all the the defendant informed remaining. issue 923 S.W.2d at See By required by Rule 24.02 and more. advice (“By remanding penalty a new hear- correcting sentence, hearing questioning, the extensive ing imposition certain alle- misstatements, asking questions, a few gations regarding trial moot.”). personal as case, the court made a determination present were In the rendered understanding of waiver to defendant’s allegations regarding no makes Although plea. of the and the voluntariness competence sentencing judge. of the remand required admonition came di- not all of the Taylor’s Denial motion to withdraw his rectly lips, court did from the court’s guilty plea for failure of consideration was personally open address the defendant not an abuse discretion. court, him to of the conse- cause be informed B. Admonition Personal the Court quences plea, of his and determine the defen- consequences and volun- dant understood the Taylor charges the court with error tarily plea. entered guilty to allow him to his failure withdraw plea personally because the court did not 24.02 is “Among purposes of Rule inform him of the matters Rule be convinced that the intention that the court guilty plea accepted. 24.02 when specific the defendant understands 24.02(b) provides: “[T]he Rule court must penalty confront charges and the maximum *8 personally open address the in defendant recognizes ing him and that defendant court, of, and inform him and determine that guilty, a number pleading that he waives understands,” specific he information State, legal rights.” 861 S.W.2d of Steinle v. require in A similar enumerated the rule. 141, plea hearing (Mo.App.1993). The 24.02(c) in ment Rule assures the court the procedure record indicates the used plea voluntary. is Dean, accomplished purpose. In court this appellate a viola plea hearing transcript after court determined reveals the occurred, in, the cause Taylor tion of 24.02 had court swore then allowed defense Rule hearing attorneys question for a to determine prosecuting and to defen- was remanded intelligently and volun plea was concerning dant the factual basis for the whether the Dean, at 328. The plea, tarily 901 S.W.2d plea, voluntary nature of the and his made. in the of review Nunley plain at 920. The standard 2. The issue in was decided on error S.W.2d Tay- because present of discretion not been raised case is abuse review because the issue had 29.07 motion. in Rule lor raised the issue his until after his Rule 29.07 motion. only knowingly voluntarily. and plea “[A] would be a show- was made vacated such case, every ing. present explain In to the record trial court is not Taylor’s provides ample plea person was pleads evidence a to which a of crime element State, knowing voluntary. and v. See Beaver long defendant understands guilty” so as the (dur- (Mo.App.1985) Beaver, 702 S.W.2d 150-51 charge. nature of the ing plea hearing, attorney than rather supports an such at 150. The record S.W.2d potential penalties defendant of informed understanding. sufficient under Rule 24.02 because rec-
held Taylor was argues plea also plea voluntarily and intel- ord reflected made in he not knowingly because not made ligently). jury a could sentence him if the State formed 565.006.2, RSMo consented under section Improper
C. Advice 1986: Taylor plea his know claims was not pleads guilty to a homi- No defendant who ing voluntary proper and because he was not a guilty is found of cide offense or who degree ly advised as to the elements of first with- homicide after trial a court offense possi murder and he was not informed of the by jury jury permitted a out a shall be trial bility jury sentencing. It is reversible im- punishment to be on the issue of the accept plea guilty knowingly a not error except by agreement of the state. posed, Alabama, voluntarily Boykin made. 1712-13, 395 U.S. 89 S.Ct. language of the stat- As is obvious from (1969). ute, plea a is not jury sentencing guilty after waive, rather a right a for the Taylor argues plea his not know grant. Taylor did privilege for the State ingly made because he was not advised he jury sentencing by a he not waive because had to have the to kill Ann intent Harrison only jury sentencing if obtain the State could guilty degree points be first murder. He agreed agree; it. did not there- The State plea to the record where his asked counsel fore, nothing of to inform there was which him, you guilty “Do understand that to be voluntary not knowing plea A does him. degree you that murder had to either require told details irrelevant defendant be in premeditat- have killed victim this ease Wedlow, 841 hand. See to the decision at to, edly you deliberately or that had 217; words, concert, have or as helped other Huffman inform (Mo.App.1986). Failure to that; Nunley during you Mr. un sisted do by a possibility sentencing Taylor of the only that?” derstand If this was evi unknowing plea jury guilty his did render record, charge Taylor dence involuntary. argue pleaded guilty subject could to a he misunderstanding of the elements of first Basis Plea Factual for the D. Insufficient However, degree plea murder. in the later hearing, admitted reflected before equivocal his testi asserts killing Taylor’s the victim. recitation of the and delib mony culpable about mental state plea factual basis of stabbed sup indicated he a factual basis eration fails reveal knowing Harrison would Ann their actions guilty “The court shall port plea. kill her. plea guilty a unless judgment upon enter basis that there is factual it determines open an accused admits in “When 24.02(e). The factual basis plea.” Rule facts court which constitute the offense from defen not have to be established does charged, which he he cannot thereafter *9 long as basis exists. dant’s words alone as that plea withdraw on the assertion he State, 248, (Mo.App. v. 663 S.W.2d Smith charge nature did understand the of the 1983). State, plead guilty.” to which he Wedlow v. initially indicates (Mo.App.1992) (citing plea hearing record 841 S.W.2d The (Mo. Ann to kill Harrison Taylor did not want 760 S.W.2d Western record, whole, Nunley ar- He and argued for her App.1988)). taken as a release. The Nunley’s Taylor succumb to plea gued, and did supports the court’s determination the deliberated, Hill, urging, acquittal. Ann of and stabbed Harri- State v. 808 S.W.2d Moreover, repeatedly. description (Mo.App.1991). son From his of an informa- inflicted, types of wounds had to may charge he know tion a defendant as a either their conduct would in principal accessory result her death. He or as an with the same participate testified he was reluctant at legal effect. Id. first, nobody my I “because never killed discussed, previously plea hearing As life, nobody get and I ain’t never watched produced support sufficient evidence to killed.” He was under no illusions the con- guilty plea degree to first murder. Assum- any purpose duct was for than other murder. ing arguendo as an he was convicted accesso- crime, According Taylor’s version of the ry, principal, prejudice not a was no there longer Nunley he deliberated than did. rights. charge id. his substantial See The mistakenly suggested Defense counsel deprive Taylor opportunity did not Taylor guilty degree could of first be murder any defense. It was not an abuse of assert helped Nunley
if he kill victim. Taylor’s discretion to overrule motion to attorney State’s asked if he reflected guilty plea. withdraw the her, killing stabbing “before before her.” questions Both of these alone are insufficient IV. culpable to establish the combination men- Taylor argues his death sentence required tal state and for first deliberation alternative, vacated, should or in be However, degree Taylor’s murder. testimo- guilty permitted should be to withdraw his ny culpable as a wb 'le established the intent jury plea he was denied a on resen- because support with deliberation tencing. Taylor 565.035.5 relies section degree murder. provides: which E. Information Defective authority regarding cor- In addition to its errors, court, supreme with rection of argues information sentences, shall regard to of death review charging degree citing him with first murder be authorized to: imposing primary liability the statutes defective because evidence offered (1) death; Affirm or the sentence plea supported only accessory liability, but (2) sentence aside and resentenee Set the accessory liability failed cite statutes. The without imprisonment the defendant life “Taylor, charges, acting information either eligibility probation, parole, or release another, purposely alone or in concert with except by governor; act of or deliberation, knowingly after caused the (3) aside and remand the Set the sentence by stabbing of Ann M. death Harrison her.” hearing. punishment case for retrial of the Taylor asserts this failed to inform him of the jury may jury A shall new be selected subjected actions which him to criminal liabil parties both by agreement of be waived ity. pro- punishment trial shall and then the 23.01.(b)4 requires an Rule infor chapter, with in accordance with this ceed mation to section of al cite the the statute exception of the that the evidence leged to have been violated the section guilty in the verdict shall be admissible fixing penalty. requires prej 23.11 Rule together with official tran- trial new rights udice of substantial the defen testimony prop- script any and evidence dant before an information shall be consid erly stage of the admitted each Citing ered invalid. incorrect statute punish- trial where relevant determine necessarily the information does not render ment. v. La the information insufficient. State 565.035.5,RSMo 1994. Section 1984). Plant, 673 S.W.2d right Initially, must note the primary purpose of information is to we an in a first punishment give charge jury notice of the to a on the issue defendant sufficient by statute. is created adequate preparation degree of a murder case to allow defense Hunter, charges in and avoid retrial on the same case State
219
arose,
denied,
926,
allegation
alcohol
cert.
When the
509 U.S.
(1993)
3047,
original
judge
trial
and trans
(citing
the
recused
S.Ct.
Florida,
447,
presiding judge
to
of the
the case
the
Spaziano
ferred
468 U.S.
(1984)).
ap
first
After
sixteenth circuit.
defendant’s
V. by de- primarily The two cases relied in- Those cases arguments distinguishable. Defendant raises several re- fendant are previous “jurisdiction” reversal of a garding the of the two trial volve trial court’s order summary judgment and an presided grant this judges who after Court’s sum- grant- argues judgment and mary that set a default order. Defendant aside trial, being en- jurisdic- with both orders judge who him lacked ed new resentenced disqualified. judge had been tion to hear the case. Defendant relies on tered after the Mehan, 731 S.W.2d original judge’s trial ex rel. Johnson recusal the sub- State Brown, Byrd v. (Mo.App.1987); sequent order presiding (Mo.App.1981). Defendant’s circuit all sixteenth which recused sixteenth judge’s re- regarding the judges. contention circuit *11 220 transferring argued it
cusal and order
the case to the
was unrealistic to ask the resen-
presiding judge
tencing judge
is denied.
from
circuit
the sixteenth
feelings
original
set aside his
for
trial
Defendant’s reliance on the order
judge
“independent
and to
to an
come
deter-
presiding judge of
circuit is
the sixteenth
also
regarding
sentencing.
mination”
Nunley,
his
misplaced.
Nunley,
In
this Court held the
Nunley
A
Defendant
prosecutor’s broad discretion
section
penalty under
deliberately
death
scheme
does
extend
decisions
ble,
inhuman;
right
process.
565.032
murder was
violates
due
commit-
by person
escaped
place
from a
Defendant contends
senteneer has discre-
ted
who
confinement;
any
impose
penalty
tion to
the death
in
lawful
murder was com-
degree murder case because
statu- mitted
engaged
one
while the defendant was
tory aggravating
provided
perpetration
kidnapping, rape,
circumstances
at-
apply
any
section 565.032“can
of first
tempted
robbery;
case
and the victim
armed
*13
degree murder.”
as a
as a
killed
result of her status
witness.3
565.032.2(7)(9)(11)(12),
Section
RSMo 1986.
aggravating
An
circumstance
trial
court also found defendant had
“may
apply
every
defendant convicted
convictions,
prior felony
seven
defendant es-
murder;
apply only
of a
it must
to a subclass
caped
custody
from the
of the Jackson
defendants convicted murder.” Tuilae
County Department of Corrections and after
967, -,
pa
California,
v.
512 U.S.
114
being apprehended
threatened
corrections
(1994).
2630, 2635,
S.Ct.
223
—
(Mo.
denied,
Weaver,
1993),
v.
320
banc
State
912
S.W.2d
cert.
section 565.035.
S.W.2d
1995).
(Mo.
-,
1664,
499,
previous
114
Proportionality findings of fact and conclusions review is not consti which State, Conway v. tutionally required required by but conform.” rather must (citing has failed to show how he (Mo.App.1994) and Movant Short (Mo.App.1989)). alleged failure of counsel prejudiced findings they if are sufficient “Generalized to contact additional witnesses.... appellate meaningfully enable the court to presented numerous witnesses Movant movant’s In review the contentions.” support of his defense exhibits findings thirty-six pages of and conclu- over personali- accompanying mental illness sufficiently sions the trial court addressed hearing. sentencing ty disorders at his Taylor pre- Taylor’s concerns and claims. Further, present- no credible evidence witnesses, thirteen and the trial sented post hearing support- at the conviction ed testimony summarized evaluated the position regard. in this Mov- ing Movant’s individually. each witness We find the trial of several mental ant has had the benefit extensive, findings specif- court’s of fact to be examinations, of those ex- and the results proper appellate ic and to allow sufficient Judge aminations were before Coburn. review. Taylor presented post-convic evidence We review denial of his post-conviction relief court that several whether tion motions determine attorneys mitigation investiga clearly believed their findings court’s and conclusions are expert inadequate. mitigation tion was A erroneous, words, after a review other investigation. testified the need more record, with the defi the whole are we left cross-examination, expert On admitted he has been *15 impression and firm a mistake nite transcript had not and record read the entire State, 213, 215 Moore v. 827 S.W.2d made? had and did not know what evidence been (Mo. 1992). find the court did not banc The sentencing mitigation court. A before the inves supporting a need for further evidence yet investigator had not contact testified she mo tigation respect We to be credible. potential all of witnesses she wished ed superior ability to determine tion court’s expert to A medical testified a interview. credibility. v. Har matters of witness State develop mental health issue further (Mo. ris, 798, banc), 814 cert. 870 S.W.2d post-conviction relief court heard ment. The — 371, denied, -, 130 U.S. S.Ct. previously from two witnesses who had not (1994). determined L.Ed.2d 323 The court Taylor’s Taylor childhood. testified about pro- mitigation would have further witnesses possible argues childhood trauma and mental Upon merely cumulative evidence. duced affecting undeveloped disorder were issues record, do not find of the we examination mitigation. clearly erroneous. these conclusions found, court The general picture emerges that from was denied ef The claims he testimony at post hearing conviction of these his assistance of counsel because fective basically mitigat investigate thirteen witnesses is the same torneys failed to further picture had it at that the Court before assistance ing Ineffective evidence. penalty hearing. second to use the fails exists when counsel counsel diligence that a rea “customary and skill who that The witnesses have stated attorney would exercise investigation sonably competent more was needed either circumstances, the failure penalty hearing post or for the under similar the second prejudicial.” diligence is hearing, conviction have been unable to such exercise Washington, 466 through specific (citing v. establish credible and tes- Id. Strickland 2064, 2052, timony would have been what benefit there U.S. S.Ct. (1984)). presume counsel granted.... had time We to Movant such been to the con requiring proof competent, to be penalty hearing] record [second The evidence. preponderance of the trary by a replete mitigation with evidence adduced 856, Sanders presented by Movant’s counsel. Counsel 1987). satisfy both the must Movant witnesses, and numerous exhibits. twelve prong prejudice and the mitiga- performance regarding Any additional witnesses prejudice, cumulative, to show If fails prevail. would have been tion evidence evidentiary hearing and an performance. motion court need 24.035 the Id, evaluate 21, 1995. for March Defen- was scheduled The a motion for continuance. dant filed asserts, “[h]aving that found granted motion court and scheduled prejudice appellant suffered from the failure Prior evidentiary hearing April 1995. evidence, present mitigating court this date, motion this defendant filed second investigate also that must find the failure granted The also this for continuance. court mitigating assistance evidence was ineffective evidentiary hear- motion and scheduled finding appellant of counsel.” Far from suf completing his May 1995. After ing for prejudice, court fered we found the motion May presentation of evidence clearly investiga deciding did not err further mitiga- testimony from argued merely produce tion would evi cumulative expert psychologist indicated addi- tion testimony purporting dence show the investigation and tional time needed for investigation for more was not credible. need interviewing Defendant asserted witnesses. two witnesses who testified was relevant to claim the information post-conviction hearing pre time relief investigation inadequate for the counsel’s Taylor’s from sented evidence childhood phase. penalty The court treated defen- perspectives, bring forth their but did not argument as a motion for continuance dant’s any significant or fact incident had not that motion. and denied the sentencing court been before the second post granted conviction court defen from other witnesses. The mental health months from the dant almost two additional diagnosis, expert firm but refused make a hearing date. Counsel scheduled suggested traumatic disorder disso stress more than six represented had defendant for possibilities ciative disorder could exist. prior hearing. See months State by psychologists and Previous examinations Wise, psychiatrists findings had resulted of men — denied, U.S. -, 757, 130 cert. competence tal and failed to indicate these *16 (1995). addition, post L.Ed.2d 656 In newly suggested cannot disorders. Counsel testimony of conviction court addressed failing shop psychia be faulted for mitigation ex psychologist and defendant’s testify favorably. trist who would more findings and pert in its conclusions defen Mease, (Mo. v. 114 banc State S.W.2d found Rule 24.035 motion. The court dant’s 1992), denied, cert. 508 U.S. 113 S.Ct. stated time the witnesses who additional 2363, 124 (1993). L.Ed.2d through “credible needed failed establish but for failed establish counsel’s testimony” specific how the defendant investigation mitigation there a reason- the additional have from would benefitted probability able not have sen- would been any also additional time. The court found tenced death. The motion court was not testifying mitigation as would witnesses clearly erroneous find did not re- and defendant failed have been cumulative ceive ineffective assistance of counsel. alleged failure prejudice by the demonstrate witnesses. of counsel to contact additional point, ar In his final defendant record, its did abuse On this court post deny gues conviction court erred by denying a third con defendant discretion ing his for a deci motion continuance. The tinuance. grant deny is a sion continuance discretion of the matter within sound VIII. Chambers, v. trial court. State (Mo. Ervin, judgments are affirmed. 1994); v. banc State denied, S.W.2d cert. LIMBAUGH, PRICE, BENTON, 954, 113 1368, 122 507 U.S. COVINGTON, JJ., ROBERTSON (1993). concur. pro Rule After se filed HOLSTEIN, C.J., separate motion, dissents appointed counsel on Oc-
24.035 opinion. 1994. Defendant filed an amended filed tober
HOLSTEIN, Justice, dissenting. Chief expressed length
For the reasons
State
1996), I respectfully dissent. ex rel.
STATE Missouri DIXON OAKS CENTER, INC., Relator,
HEALTH LONG, Jr., Douglas
The Honorable E.
Judge 25th Circuit of Judicial
Missouri, Respondent.
No. 20371. Appeals,
Missouri Court District,
Southern
Division One. 14, 1996.
Feb. Rehearing
Motion for or Transfer 1, 1996. March
Denied