*1 Missouri, Respondent, STATE TWENTER, Appellant.
Virginia A. TWENTER, Respondent, Virginia A. Missouri, Appellant. STATE of No. 71319. Supreme Missouri, Court of
En Banc. Oct. 1991. Rehearing As Modified on Denial of 19, 1991. Nov. *3 McKerrow, Columbia,
Nancy ap- A. for pellant. Webster, Gen., Atty. Andrea
William L. Gen., Atty. Spillars, K. Asst. Jefferson respondent. for City, HOLSTEIN, Judge. A. Virginia Twenter con-
Defendant degree victed of the first murders her father, (Count I), step- and her J.D. Wells mother, (Count II) Marilyn pursu- K. Wells pun- jury ant to 565.020.1 The assessed § possi- life imprisonment ishment at without fifty bility parole years on Count I. penalty death was assessed on Count appeals judgment Defendant from II. Defendant also imposing those sentences. petition post-conviction relief filed a pursuant hearing The court to Rule 29.15. (motion proceeding court) defendant had been de- found that effective assistance of counsel. The nied set aside the convictions motion court on all issues. The state ordered new trial judgment appeals from motion court’s are to RSMo 1986. to statutes 1. All references size, design, the same prints were This Court
setting aside the convictions. Const, appeal. Mo. the shoes worn jurisdiction shape pattern were has V, judgments are affirmed 3. art. she was interviewed by defendant when § part remanded for a part, reversed However, for the expert witness police. punishment issue of new trial on the certainty that de- say state could II. Count print on the lino- fendant’s shoes made from the challenges sufficiency partA of a thorn taken leum. Defendant agen- to establish criminal similar to the evidence sole of one of the shoes was determining cy the murders. ground on a tree thorns found on the locust evidence, sufficiency of the all evidence place line the road and direct between inferences is together with all reasonable A Marilyn body was found. where Wells’ *4 verdict, favorably to the and evi- viewed body pack a Marilyn’s from was few feet contrary inferences to the verdict dence or cigarettes, the same brand Marlboro White, ignored. are State by smoked defendant. 1990). 694, up turned A defendant’s home search of register tape. tape was hidden a cash FACTS liner in de- mattress and mattress under a body of J.D. Wells was found his register tape The cash fendant’s bedroom. Laas, daughter, living room of Anna register at by a cash used had been made May home at about 7:15 a.m. on the Wells’ restaurant, the “Coffee Pot J.D. Wells’ 5, day the 1988. About noon the same receipts tape reflected from Cafe.” The in field body Marilyn Wells was found a tape May 3. J.D. Wells had taken approximately eight from the Wells’ miles he left the restau- “May marked 3” when body approximately fifty- Her home. was 4,May gravel the afternoon of 1988. six feet from a road. Both deaths rant on by gunshot caused J.D. were wounds. in serious financial trou- Defendant was shot in the and in the Wells back Many of time of the murders. ble at the Marilyn chest. had been shot once in arrears. Six months her debts were appeared chest. She to have been shot murders, sent a prior to the J.D. Wells body the site where her was discovered. demanding payment of to defendant letter evening May On the between prior year. he had made to her the a loan p.m., neighbor a of the Wells 9:30 and 11:30 lender repossessed. The Her car had been watching television when she heard was mortgage had sent a notice on her home gunshots coming from resi- two the Wells debt and intent to fore- acceleration of the dence. days prior to the murders de- close. Five Ballistic indicated that the fatal car, paying purchased fendant had a new pistol shots were fired a .38 caliber $4,400 The check had for it check. with Twenter, registered Hugo appellant’s ex- dealership, to the car and on been returned Hugo gun husband. had discovered defendant, May the dealer had called 4th missing pickup from his truck as was paid. Defen- insisting that the check be one leaving Virginia Twenter’s residence relying that she on dant told the dealer was reported evening April of 1988. He had pay her father to for the car. a loan from missing gun to enforcement offi- law stepsister and a of defendant Yet a brother There also prior to the murders. cers defendant and her father had testified that Hugo defendant knew where evidence that time gotten along well for some gun pickup truck. After kept the murders. taken, gun defendant indicated produce gun. Hugo that she could day morning of the same On the 6, 1988, in a creek May on gun was found found, ap- bodies were Wells’ limits, many city south of the Sedalia a check dealership at the car peared of the crime. miles from the scene on the $4,400 signed by Marilyn Wells for morning account. That same “Coffee Pot” on bloody prints were found shoe Two bank, also a check to a presented the Wells residence. linoleum floor at signed by stepmother on ac- I. the same APPEAL DIRECT count, $4,000. A. register The checkbook and check argues Defendant the state’s evi- “Coffee Pot” were found in the account hy- dence does not exclude the “reasonable Wells home. It showed all checks account- pothesis of parents innocence” that her checks, except missing ed the last three $8,400 evening loaned her earlier in the 3743, 3744, numbered and 3745. Two 4, 1988, May parents and that her were those checks were the ones that had been p.m. well she left them at when about 6:30 presented by third check defendant. The Defendant discount would have Court was never located. None of three bloody shoeprint, the evidence of the register. checks were recorded in the check register tape, indicating cash the evidence There was evidence that J.D. Wells was possession of the murder she had usually kept careful businessman and weapon, upon learning her reaction regarding records his checks and loans shoeprint, and the content of the conversa- his children. require tion with Mike Turner. That would interrogated The police defendant. She weighing of the evidence. This Court *5 her only verify could whereabouts before weigh jury does not evidence in a case. p.m. p.m. night 9:30 and on the after 11:30 Here, belongs jury. That function to the 4,May police She first she 1988. told favorably we the evidence to the ver- view during had driven Knob Noster dict. However, trial time frame. she testified at defen The evidence established Warrensburg that she went to and met two murders, monetary the dant’s motive for performed men with whom she “some sex weapon, her her access to the murder and only give full acts.” She could the name explanation of inconsistent and unverifiable men, Arnell, first one the Robert and the evening. her on The whereabouts the fatal other, According name of the Steve. by 1) completed chain of circumstances defendant, on Arnell “was a construction scene, 2) bloody shoeprint the defen the Warrensburg.” She had other site upon learning bloody reaction the dant’s knowledge the men about where lived. found, 3) shoeprint reg the had been cash body After J.D. was discovered Wells’ tape being found defendant’s bed ister found, family Marilyn but before had been room, 4) and the checks the defendant’s members, defendant, began including gath- possession which recorded in had been brother, ering at the home of defendant’s register. The this cir the check facts Laas, step- John Wells. Anna defendant’s 1) case cumstantial evidence are consistent sister, describing had found was what she 2) other, guilt, with each consistent with morning present. earlier that others any 3) the inconsistent with reasonable story her point When she reached innocence, including ory suggested mentioning prints left on bloody shoe Wahby, defendant. State v. linoleum, God,” said, “Oh defendant 1989). (Mo. The banc evidence regained conscious- fainted. When she guilt, nor need it need not be conclusive ness, making insisted on a tele- defendant impossibility of innocence. demonstrate housemate, Turner. phone call to her Mike Id. at 154-55. sister, Denker, Clara Anna and another evidence was part of Added to the above defendant’s the conversa- overheard father did not they heard that defendant’s They each testified that evidence tion. defendant, good relationship say have a with that both father time, recently had demand At that he stepmother had been shot. loan, pay ed and defendant's Marilyn body discover- Wells’ had parents making premature statement that both Upon that statement defen- ed. evidence, herself, not essen and were dead. This while stopped looked at Laas dant tial, shot, jury also said, “Well, properly before the just my dad’s been was negate theory of inno- tends to defendant’s my find mom.” we can’t clearly in a better evidence, judge trial was although circumstan- cence. tial, defendant’s audi- tape to establish if the was position was sufficient to determine any agency and inconsistent and, audible, criminal tape’s if jurors ble to theory of innocence. reasonable mistrial “A motion for prejudicial effect. to the sound discretion is addressed B. mistrial judge the declaration of a trial ... claims that the motion Defendant remedy employed only a drastic to be granted fol mistrial should have been extraordinary circumstances.” the most part tape lowing playing of an audio Gilmore, 934, 943 State v. police interview of Linda Turner. made of 1984)(citations omitted). In this case for defen Linda called as a witness only that the by the witness the statement de testified that she was with dant. She money defen- motive was reasonable 4,May p.m. after 11:30 1988. fendant merely a recital of what dant obtained was During prosecutor cross-examination earshot of the courtroom everyone within told Linda tried to establish that defendant already learned from other evidence. $5,000 check from her she had received a Also, question and answer replaying the killings. Turner father a week on the appear not to have been intentional she had made such a statement. denied did not at- part of the state. state rebuttal, police During the state called advantage tempt to take of the statement Chapman, had conduct- officer William who argument. Defense by reiterating it in 6,May of Turner on 1988. ed an interview sought than a mis- no other relief Chapman testified that Turner claimed to disregard instructed to jury trial. The by defendant that defen- have been told totality of the circum- tape. Under $5,000 check given dant’s father had her a *6 stances, did not its the trial court abuse Chapman the murders. was a week before determining playing the discretion in that portion tape the play then asked to the of prejudicial denying tape was not Ap- in which Turner made that statement. mistrial. a motion for mistake, tape began parently by the asking, “Why one of the officers should it, why kill her C.
she—if she did would she parents?” replied, “Only Turner own argues the trial that Defendant thing money I of is the that she’s can think plain by failing to court committed error gotten.” Immediately after that followed sponte grant a mistrial due to a por sua by the statement Turner that contradicted closing argument. Dur tion of the state’s testimony her trial that she had not been attorney re ing argument prosecuting the $5,000 given told to defendant about differentiating first the instructions viewed murders. J.D. Wells a week degree murder. He stated: and second upon Counsel moved for mistrial based matter, upon the says: It Cool reflection question sug- above-quoted and answer brief, doesn’t mean she made a however gesting possible motive. No defendant’s deci- decision or even a reasonable wise court, sought. The trial other relief was sion; think before she did she about it disregard sponte, sua jury ordered the of Did she not act under a fit did it? tape. the audio passion? reporter did The trial court and the court question and and had not hear the answer you only it see the you look at will When tape recording three times to listen to the degree in the first murder difference said. to understand what was in chambers degree second is the ele- murder jury judge questioned whether only way you ment of deliberation. answer, offending question and heard say guilty of murder could she was motive had and noted that the defendant’s thought degree you if second gone into in detail with other witness- all, it it at that was didn’t think about concluded, it the event judge es. The “[I]n the heat of under the—within committed heard, prejudicial it is not in fact was passion. this case....” 933,108 holding cites no case that the nied 484 U.S. S.Ct. L.Ed.2d
Defendant
De-
argument
(1987).
made in this case
error.
origin
These cases of recent
entirely
contention is based
fendant’s
firmly
that the instruction com
establish
makes
565.028.1. That section
the know- plained
§
not
of does
violate constitutional
killing
person
ing
“under
influence
by decreasing
state’s
standards
burden
passion arising
adequate
from
of sudden
proof.
purpose
served
No
would be
voluntary manslaugh-
the crime of
cause”
point is
an extended discussion. The
de
ter,
degree.
murder
second
not
in the
nied.
Although
prosecutor’s
discussion
incomplete, it
not a
have been
E.
misleading
law.
false or
statement
testified in her own
Defendant
be
prosecutor
did not misstate what must
half at trial. On rebuttal the state called
guilty
present to
of first
be
find defendant
brothers,
defendant’s
John Wells
Rob
murder,
degree
i.e., deliberation or “cool
They each testified that
ert Wells.
time,
any length
however
reflection
reputation for
truthfulness
defendant’s
565.002(3).
Any
brief.” §
good.
was not
Defendant claims
be
acting
passion
defendant was
out
will
having
cause
admitted to not
John Wells
degree
conviction of first
murder.
defeat a
knowledge
“very
of her friends the
good
degree
not
But second
murder is
excused
years,”
last
John
in a
two
Wells
merely
accused acted in a state
because the
reputation.
position
know his
sister’s
rage
anger;
passion must
argues that due to Robert Wells’
She also
adequate
upon
cause.
sudden
based
preced
being
Navy
years
in the
the six
565.023.1(1).
prosecutor
did
Thus
§
trial,
ing
he also had insufficient current
during closing argu
misstate the law
reputation to
knowledge of defendant’s
ex
The trial
has
discretion
ment.
court
wide
press any
subject.
on the
view
controlling arguments.
Mahu
State v.
from
testimony
omits
both
Defendant
1990).
rin, 799 S.W.2d
they grew up in the same
brothers
of discretion and no
There was
abuse
known her all
otherwise,
home
defendant and had
error,
refusing
plain or
is not critical that both witness-
a mistrial
on the state’s clos
life. It
declare
based
*7
acquainted
es
with defendant’s social
ing argument.
be
they
regu-
on a
companions or that
saw her
D.
immediately prior
the crime or
lar basis
302.04,
MAI-CR3d
gave
The trial court
exists
the trial. Little doubt
defining “proof beyond
jury instruction
position
in
were
a
know
two brothers
Defendant attacks
a reasonable doubt.”
reputation
veracity among
defendant’s
for
claiming it dilutes the
instruction
family
acquaintances
and
members
other
proof. The definition
burden of
state’s
times
the time of trial and at all relevant
up
has
in the instruction
contained
prior to the trial.
repeatedly.
Griffin,
v.
818
held
State
stand,
took the
When defendant
278,
(Mo.
1991);
282-283
banc
State
S.W.2d
placed
reputation
for truthfulness
(Mo.
762, 771
744
banc
Murray,
S.W.2d
v.
issue,
permit
veracity in
and the state was
871,
1988),
U.S.
109 S.Ct.
denied 488
cert.
ted to
evidence that defendant did
present
(1988);
181,
State v. Ant
635
Strategic choices
prescribed standards.
II. RULE 29.15 APPEAL
investigation of
thorough
made after
setting aside of the
appeals
The state
unchallengea-
virtually
and facts are
law
Rule
by the motion court under
convictions
less
ble,
strategic choices made after
court’s deci-
29.15. The basis of the motion
complete investigation are reasonable
and sen-
than
to set aside the conviction
sion
professional
series of claims of ineffective
tence was a
the extent that reasonable
guilt and
of counsel in both the
investiga-
assistance
judgments support limitations
punishment phase.
Strickland,
at 2066.
tions.
104 S.Ct.
containing real limitations
the real world
applicable
The standard of review
resources, criminal de-
time and human
proceeding
in a
29.15
is that the mo
Rule
given heavy
measure
fense counsel
judgment
affirmed un
tion court’s
will be
deciding
what witnesses
deference
Def
clearly
29.150).
less
erroneous. Rule
given
superi-
worthy
pursuit.
are
Id.
erence is
to the motion court’s
opportunity
judge
credibility requires
prejudice component
Feltrop, 803
the witnesses.
State v.
that,
to demonstrate
but for
the defendant
1,
(Mo.
1991).
12
That does
S.W.2d
banc
errors,
unprofessional
the result
counsel’s
not relieve the movant of the burden
differ
proceeding
would have been
proving
grounds by preponderance
his
Strickland,
636 by choosing post-conviction system improperly counsel made an “of- behaved dant’s support untimely of an proof” provide expert fer of not to funds for witness. the filed amended motion. provide The of the funds failure state to is merely by was a statement That offer raised an issue that could have been on expected prove of what he if counsel 29.15 appeal. direct It was not. Rule permitted amend. amendment was appeal, not a for direct and mat- substitute permitted. The offer was re- not never properly ters should been raised commenced, hearing newed after may litigated by appeal direct not be in a expert called. witness was post-conviction proceeding. Amrine v. State, 531, 1990). 785 S.W.2d 536 support charge of To ineffective of counsel based on failure to assistance relies on States v. United witness, expert testimony of an secure 2039, 648, Cronic, 80 466 U.S. 104 S.Ct. required a minimum movant is to show at (1984), authority for L.Ed.2d 657 as have been. the evidence would Holt what to coun proposition that matters external State, 191, (Mo.App. support of sel’s a claim inef actions 305, 1987); Taylor fective assistance counsel. Cronic (Mo.App.1987). This record bereft lawyer given only the defendant’s was on any subject. evidence days prepare for trial. The twenty-five by accepting portion opinion Even “offer relied on defen evidence, proof” by counsel as there was in a dant is found footnote: defendant, nothing that exonerate would can attribute a fact that accused counsel, evidence, by recited and the deficiency representation his merely cumulative. Post-conviction does external to trial counsel not source that the man movant asserted likely that any more or less make it Payless Store in ager of Shoe Sedalia by type trial envisioned received frequency testify “as to the would Amendment, justify it nor does Sixth of shoe soles seized from de distribution of his absent an a reversal conviction fendant,” soles com and that those were process on the trial actual effect particular model mon to all shoes of that such an likelihood of effect. brand, shoes and mod as well as other 31, Cronic, 104 S.Ct. U.S. at n. proof” Nothing in dis the “offer els. has failed Here defendant n. 31. regarding any further details closed showing what ex- any “frequency and mentioned distribution” that was not pert have testified to would counsel also as Post-conviction counsel. such jury. evi- already Without before in proof” in his that he “offer serted expert speculation that the pure dence it is Briner of the to call Dr. Robert tended have had an “effect testimony would Girardeau, Cape laboratory in crime SEMO support provides no process.” Cronic trial footprints were testify that the who court’s conclusion. for the motion made de conclusively shown to be evidence, shoes. None of fendant’s B. anything that presented, proved it had been trial counsel to The motion court found jury by way of already before interview and be ineffective Failing to testimony. Cayton’s John *9 Fox, testimony Robert a of secure the is not ineffec evidence cumulative present According to de- neighbor the of victims. v. Flowers of counsel. tive assistance sup- have fendant, testimony would Fox’s 444, (Mo.App.1989); 448 State, 776 S.W.2d theory were mur- ported that the victims a 760 S.W.2d v. Robinson man. by dered an unidentified (Mo.App.1988). night the investigators that on Fox told point, the leaving Before murders, saw unidentified man the he an of not court did that the motion *10 exception hearsay to the rule. Id. at 9. obtained, showing there no of was was hearsay The that if the has Court noted produce counsel could have done to what defendant, reliability, carries of Fox. who the bur- substantial indicia such as evidence, Wells, brother, her by other a sworn defendant’s John corroboration confession, eye or statements of witnesses sister, Denker, relationship had a bad Clara crime, and if such evidence would judge, The motion with the victims. court defendant, might exonerate the it be admit- so, though say apparently he did not be- notwithstanding this rule. Id. at 10. ted a this that those had lieved indicated two Here there was not a scintilla of evidence parents. to kill their Neither Law- motive extrajudicial to corroborate the statements son nor Wheeler testified that Wells John goods. that Wells dealt stolen In addi- relationship or Denker had a bad Clara tion, the fact that deceased finding clear- with the victims. That is also goods dealt stolen is not evidence show- ly erroneous. most, ing guilty. At defendant was not herring,” requir- a such evidence was “red E. upon ing stacking infer- inference The motion court found defense to ence be of benefit to defendant. Coun- failing thoroughly to investi- ineffective failing sel will not held to ineffective Turner, gate and Mike defen- interview present Amrine v. inadmissible evidence. housemate, failing Turn- to call dant’s State, 785 at 534. said testify regarding er to what defendant D. by telephone testified conversation addition, Denker. In Anna Laas Clara The motion found that de court court counsel ineffective found in failing fense ineffective counsel was sisters, failing testify to call Turner to that interview call the defendant’s Lawson, Norma Wheeler Elizabeth around” defendant was home “sometime relationship good establish defendant’s night of the murders. p.m. 11:00 parents. her record does not with findings unsupported by the These are also support defendant and a conclusion that record. good relationship. parents enjoyed her by counsel interviewed Turner Defense Norma testified that before the Wheeler “indi- telephone. In interview Turner speaking parents quit murders her had any he that could remember cated was defendant. The source of the conflict defen- [telephone] conversation [with $3,000. unpaid From the evi- debt He testified that Turner at all.” also dant] post-conviction dence at the trial and the on the had him the interview that told $3,000 unpaid hearing, remained debt murders, night defendant left at the time of the victims’ death. p.m. 7:00 and was home sometime after saying came to that there closest Wheeler sometime at when he went bed home good relationship was statement coun- p.m. Turner told defense after 11:00 begun her mother had visit- Wheeler that at she had returned sel that defendant said ing and her mother was with defendant a.m. counsel testified 1:30 or 2:30 Defense patch things up” “going try between that found Turner to be evasive. he father, the two “had and her but anger Turner, them.” post-conviction a lot—all of this behind testifying at being hearing, interviewed remembered post- at the Elizabeth Lawson testified investigating but persons the murders she was close to proceeding conviction interview not remember who did the could However, gave testi- parents. no her it, put “I talked to he said. As he what relationship regarding be- mony at all them, many ques- they had so many so parents. The mo- and her tween defendant ask, really I’m not sure.” Turner’s inef- that counsel was tions to tion court’s investigators evidence of a he told fective recollection what relationship defendant and between good Indeed, he had recollection hazy. unsupported by record. parents is He talking to defense counsel. at all of had a better recollection also he stated finding, the above connection the time of events finding an alle- adopted as its motion court a short time after hearing than in fail- ineffective gation that counsel was nothing suggest There is present evidence that murders. investigate and ing to *11 arrest, encounter have im- Sometime after her a face-to-face proved memory. prose- Turner’s sent some written materials cuting attorney in forth her which set post-conviction Mike Turner’s testi Amell nor claims of alibi. Neither Robert mony regard telephone with to his conver in were mentioned these materials. Steve sation defendant after the murders with confusing. also direct examina On summer of 1988 a letter was Late tion, if him dur defendant, brought when asked defendant told written which was ing telephone parents call that both prosecuting attorney. the first For killed, replied, were he “No.” asked When time, Amell and the name Robert Steve on cross-examina about conversation prosecuting attorney The were mentioned. tion, “Well, replied, Turner I don’t remem County sheriff and a contacted the Johnson said, exactly ber I what was but know Warrensburg police detective in an effort things Judged by some that were said.” Ar- to locate Amell. The efforts to locate reasonableness, objective standard proved nell enforcement authorities law counsel within the in decid was well mark fruitless. ing pursue not to Turner further. The first time the defendant mentioned accepting Even that Turner had an im- or the names of Robert Amell Steve to proved recollection of the events as dis- attorney was in a conversation with own in his testimony, closed attorney appointed her second defense could not account for defendant’s where- about four and one-half months after during period abouts the critical time be- murders. Defense counsel was told that p.m. 9:30 until 11:30 tween about 11:15 or Warrensburg possibly Amell lived p.m. night of on the the murders. Thus City. investigator Kansas An outside defendant has also failed to demonstrate public every defender checked Robert prejudice. clearly The motion court erred Amell a Missouri driver’s license. finding ineffective assistance of counsel male outside One was white who lived on this claim. City. Kansas Defense counsel showed de- photograph along fendant that individual’s F. photographs of males. with two other white Counsel was deemed ineffective for fail- point Defendant asked to out the cor- ing to locate and Robert Amell interview photograph Defendant selected a rect one. (last unknown). and “Steve” name At trial neighbor investigator of a of an for the defendant claimed to have been with the City. De- defense counsel from Jefferson Warrensburg two sometime between pursue did not the issue fur- fense counsel p.m. 9:30 and 11:30 court days prior or three ther at that time. Two delay by found that because of the trial, December a friend original public locating defender in these defendant’s called and disclosed to defense witnesses, the witnesses had left the area that Amell had worked on a con- longer Immedi- and could no be located. gone De- struction site but Ohio. ately after that the motion court given fense counsel was no other leads. found defense counsel should have learned “following discovery.” of these individuals From above review findings unsup- record, origi These inconsistent are there is no evidence ported by the record. given lawyer nal was ever the names Defense counsel Robert Arnell or Steve. original public para- defender sent a necessarily identify client to relies on his legal hired for the summer student he had required to be clair witnesses and is not following jail defendant at the to interview voyant. Johnson v. May defendant’s arrest of 1988. (Mo.1972). addition, supposed disclosed only potential alibi witnesses produced at the alibi witnesses were Turner and Linda Turner.2 The were Mike post-conviction hearing. To establish a provided by defendant made no information assistance of counsel mention of Robert Amell or Steve. claim of ineffective Turners are not related. 2. The two
640 alleged failing prior to for locate and interview witness- closed Denker’s inconsistent es, only not defendant must show that statement. have been the witnesses could located addition, regarding In the law through investigation, reasonable but it investigate duty counsel’s to matters of that must also be shown witnesses impeachment” quite “mere clear. To called, testify if the testimo- would that a ineffective establish claim for assistance ny a provided would have viable defense. witness, of counsel for failure to contact a State, v. 681 at 21.
Hogshooter
S.W.2d
prove, among
things,
prisoner
a
must
other
The total absence of evidence that these
that the witness would have been located
at
witnesses were available
the time
trial
investigation
through a
reasonable
and the
of evidence that their testi-
absence
testimony
have
the witness’s
would
mony
defense de-
would establish a viable
provided a
v.
viable defense. Endicott
any claim of
assistance of
feats
ineffective
State,
703,
(Mo.App.1990);
792 S.W.2d
706
investigate
counsel
on a failure to
based
State,
666, 667
Thompson v.
779 S.W.2d
these witnesses.
State,
(Mo.App.1989);Hayes v.
774 S.W.2d
886,
(Mo.App.1989).
prior
If a
incon
888
G.
does
by
sistent statement
a state’s witness
to
The motion court found counsel
give
doubt as to
rise
a reasonable
failing
for
and call
ineffective
interview
impeachment
guilt, such
evi
defendant’s
Norma
Lawson to
Wheeler
Elizabeth
for
claim of ineffec
dence is
the basis
a
testimony.
impeach
Denker’s
Wheel-
Clara
State,
v.
tive assistance
counsel. Lane
er and Lawson claim to have overheard
(Mo.App.1989);
771
v.
778 S.W.2d
Tate
deny
Denker
she heard the defendant’s
State,
(Mo.App.1984).
91
675 S.W.2d
telephone conversation. The inconsistent
may rely on his client
Defense counsel
statement
that Lawson and Wheeler
identify the
to be interviewed.
witnesses
by
made
Denker occurred
claimed was
State,
Un
v.
Julia or of Malmo Motors public public local defender or the contract supplied testimony providing could have addition, defender. the record is barren alternative to the state’s evidence of finan- real, exculpatory evidence that was not. alleged pro cial need motive is not in the se inactivity, discovered reason of the de- post-conviction or amended motion. The lay, preparation or lack of time in for trial. objected testimony state to Wheeler’s as findings While the of fact and conclusions being pleadings. 29.15(d) outside the Rule rhetoric, of law are rich with those criti- requires grounds setting all aside any cisms not connected are with facts motion be contained in indicating prejudiced. how defendant was 29.15(d) the motion. The effect of Rule timely to bar all claims not raised in a filed J. State, pleading. Bockover v. 794 S.W.2d The motion court concluded that defense 334, (Mo.App.1990); State, Rohwer v. in investigating counsel was ineffective 741, (Mo.App.1990); 791 S.W.2d 743-44 calling punishment phase witnesses in the State, (Mo. Kelly v. 784 S.W.2d of the trial. This conclusion was based on relating App.1989). requirements The time findings, several factual not all of which post- pleadings to the amendment supported by are the record. proceedings are valid and man- conviction datory. Day v. The motion court found that defense 1989). punishment counsel did not believe the phase would be reached. That Second, nothing testimony in the there is contrary testimony of defense coun- Wheeler, employees Kathy Ray, Julia sel, and the trial finding. record refutes the ex- of Malmo Motors “abject The motion court also found an missing negated the plained check or professional had a finan- failure to state’s evidence that defendant and rea- offering sonably prepared although of evidence” to her she was to testi- available punishment phase. during the The record fy- at trial shows counsel called three witness- very Lawson testified that Elizabeth psychology es: a doctor of had treated who young child had defendant been beaten professionally, defendant a minister who mother, her J.D. natural Wells’ former jail, had visited defendant in and defendant. As a child wife. been sent whole, presented Taken as a the evidence siblings live Ohio while the picture dysfunction- of a reared in a woman through *14 going father and mother were al, home, unloving that she was emotional- their divorce. She also said that she would ly impaired good and to unable exercise have testified to these matters and was divorce,
judgment her after that she cared during penalty phase available of the children, young for deeply her worked hard trial. keep properly, them and had dressed grew up hopes obtaining high Joe Coslett with defendant and school education seeing being re- they enjoyed company. and her children after each other’s He prior She free leased. was shown always testified that she was cheerful and finding The of an criminal involvement. Although he lived in Texas loved her. “ajbect prepare punish- for the failure” before, trial, during and after the he would phase ment is refuted the trial record. testify have come to Missouri to to these facts if he had been called and asked. motion found that The court also “[f]ami- ly, friends and coworkers were available baby- testified that she Ann Moentmann willing testify were not called [but] February from un- sat defendant’s children testimony, not upon and were from September til of 1987. She moved even to trial.” contacted Sedalia to North Dakota November pre- persons court did not name these or her She testified that defendant had 1987. cisely they testified to what would have called, re- If have address. she would they had been called. We are left testify to Missouri to that defendant turned friends, to identify search the record what “one of the best mothers” she had was families, available, or coworkers were what by de- ever seen. was not contacted She called, they have if and then would said counsel. fense testimony that determine whether noted, previously As defense counsel ex- during the presented have defense viable family plained calling his reasons for not punishment phase. Predominantly his reason members. pro- post-conviction The record calling family express not members was family ceeding discloses that the friends siblings her hostility at least some of who have been available members those who step-siblings. He noted that testify include defendant’s sis- willing to defendant maintained contact with vacillat- ters, Law- and Elizabeth Norma Wheeler Eventually not to her. ed and would talk Coslett, son, stepbrother, a brother- her Joe jail. they quit visiting Apparently, her Lawson, in-law, Stephen baby-sitter and a court either discounted or disbe- the motion children, Moentmann. Ann for defendant’s failing explanation pursue lieved this reflecting on testimony Norma Wheeler's family The motion members witnesses. tes- was mixed. She defendant’s character preju- court concluded that defendant was falling out her had a with tified defendant by failure to call these witnesses. diced unpaid debt but parents over an must, outright rejec- Assuming, as we begun stepmother had and defendant’s explanations, tion of defense counsel’s also testi- speaking to each other. Wheeler finding clearly not erro- motion court’s sister, although the fied that she loved point. on this neous growing up, along well get two did jealous defendant was because probably K. She Wheeler, student. who was a better allega- rejected motion court several good mother testified that defendant pro tions in defendant’s se and amended Finally she her life value. that motion. talked lawyers never that defense testified 3. 1. complains rejected court the claim that The defendant
The motion request prove failing counsel was ineffective counsel was ineffective group shooting voir dire. De- the murder incapable individual or small she was initially con- fense counsel testified that he this claim is a weapon. problem group decided sidered small voir dire but defen evidence that the total absence of error in pursue not to it. There was no weapon dant could not shoot a reason- counsel’s decision to be Specula the death of the victims. caused addition, professional decision. might able testi expert tion as to what an nothing in the record indicates assist ineffective fied to does establish full, than panelists’ responses were less State, 771 Kennedy of counsel. ance failed to honest and candid. Defendant (Mo.App.1989). 857-58 prejudice. establish
4. *15 2. Defendant believes the complains that the motion Defendant find coun failing in to court was incorrect found counsel ineffective court should have objecting to a demon sel ineffective for not failing present Ac-
in to certain evidence. Defendant was asked stration at the trial. cording readily there was to defendant gun in front of her at to stand and hold the Hugo available evidence that Twenter was done length. The demonstration was arm’s $3,000 responsible for the That evi- debt. dis evidence that the connection with compelling, dence is less than viewed gunshot floor and the tance between the light of the record. fifty-two chest was in J.D. Wells’ wounds the soles of his shoes inches above Hugo provided divorce decree The demonstration parallel to the floor. responsibility pay to “fami- was to assume enough to was tall 20, 1979, indicated that defendant ly incurred between October bills rele $3,000 and was thus 3, have inflicted wound through 1987.” The November suggests that Nothing in the record September vant. loan was made to defendant on outweighed proba its 21,1987. party prejudicial its effect J.D. Wells was not a legally Thus it was admissible. State accordingly decree and was not tive value. 812, (Mo.App. Walls, Hugo repayment. to 637 S.W.2d bound to look v. failing 1982). ineffective for Counsel is not trial, During the course of the object admissible evidence. Downs to to Hugo asked if he was to Twenter was 193, (Mo.App.1990). Hugo replied, “It nev repay the loan. was defendant testified er stated....” When 5. trial, repay to she was asked who was court erred asserts the motion Defendant $3,000 replied, “I debt. She was.” find ineffective be- failing counsel forego decision to evidence Counsel’s object closing ar- did not cause counsel upon questionable well have been based alleged misstatements of gument in which his own of such evidence and that value defendant, According to law occurred. obligation pay admitted her client argument objected should have addition, the of who was In evidence debt. the crime did not occur by the state that not establish a obliged pay the debt did already As dis- passion.” “in a heat best, impeach it At served defense. cussed, of law occurred no misstatement Ordinarily, a defendant Hugo Twenter. According- prejudiced the defendant. merely because de relief not entitled to assistance fails. ly, this claim of ineffective not to evidence counsel elects fense Allbritton impeachment value. of dubious 6. 687, (Mo.App. State, 747 no ineffective clearly motion court found 1988). court was not The motion for counsel’s failure assistance of counsel failing find counsel ineffec erroneous relating to a search present evidence claim. on this tive p.m. 6, p.m. 11:05 on May her Lt. aired between 10:35 waterbed John Gordon 1988, during register receipt which no cash May 1988. takes issue
was found. Defendant also neighbor trial a of the victims testi- At finding that with the motion court’s coun- that she heard two shots between 9:30 fied prove sel not ineffective was p.m. watching “The Jeffer- and 11:30 while time that the television show known produced No was at trial sons.” aired on the date of the “The Jeffersons” showing aired. At the what time show murders. hearing evidence was 4, 1988, May presented indicating that on a. on the local played “The Jeffersons” was trial, Sgt. the Missouri Lloyd At Kerns of 10:35 and 11:05 television station between he Lt. Highway Patrol testified that p.m. claims that had that evi- Defendant of defen- John Gordon conducted search produced, it have shown dence been 6, 1988, May dant’s home on search of a her defendant could not have killed weapon. un- Kerns stated did look p.m., 10:35 and 11:05 taken father between der A search the waterbed. second eight stepmother to a field miles dis- pursuant to a warrant on conducted search tant, stepmother, killed her and driven sev- tape register cash May 1988. The home, arriving by p.m. miles 11:00 enteen mattress found underneath the waterbed de- reality the trial record reflects that and mattress liner. 11:15 called Linda Turner at about fendant *16 hearing, post-conviction the Kerns’ At at p.m. did not arrive Linda Defendant deposition was It indicated that offered. p.m. 11:30 Turner’s house until about search, May Kerns watched as during the 6 if the time of J.D. Wells’ precise Even so up lifted the waterbed that Gordon p.m., 10:35 that murder was about eight six to inches underneath the could see all given ample time do by weapon No observed waterbed. travelling necessary to arrive home the from nothing was seized under Kerns by by p.m. Linda Turner's home 11:15 or at prosecuting The attor- by Gordon. bed p.m. Producing 11:30 the evidence would ney he interviewed Gordon testified that A provided a viable defense. not have told that shortly after the search and was Therefore, remained. gap sufficient time along hand Gordon had run his between finding not in the motion court did err mattress, railing and the but had not failing produce in prejudice absence under the waterbed. searched evidence. defendant, According to had the evidence present- May 6 search been of Lt. Gordon’s L. ed, created a reasonable that “would have file a attempted to second Defendant and when the evidence as how doubt relief amended motion mat- way its under found [defendant’s] the last date more than five months after argument is overlooks tress.” What permitted as filing amended motions the first the evidence shows 29.15(f). not Rule Defendant does under thorough. The by Gordon was not search tardy attempt give any rationale for by physi- register tape only found cash argues limits are filing, the time unrea- looking but under lifting mattress and cally reiterates sonably short. The Court what liner, by of which were done neither before; the time limits of Rule it has said The court’s Gordon. mandatory. Kilgore v. was not are valid and failing develop this evidence 29.15 1990); State, (Mo. of counsel is 393 banc assistance 791 S.W.2d ineffective (Mo. State, clearly erroneous. S.W.2d 580 banc v. 779 Sloan State, 1989); at 693. Day v. b. as such existed None of the circumstances (Mo. State, 807 in S.W.2d no ineffective motion court found The Luleff 1991), banc or Sanders counsel’s failure due to defense assistance 1991) are shown that “The Jeffersons” allowing a new point In to remand for The claim on this is without Court exist. trial, phase promotes punishment merit. 565.035 § only economy requiring judicial by a retrial CONCLUSION portion of the trial of the defective ap- claims avoiding relitigation Other are made the direct of defen- needless peal regarding during errors instructions guilt. dant’s addition, punishment other phase. Accordingly, judgment in direct asserting as- claims are made ineffective I is That appeal as to Count affirmed. during punishment sistance judgment in 29.15 portion of the the Rule phase. findings assist- of ineffective is proceeding setting aside the convictions investigate ance of counsel for under sentence death reversed. family punishment in the and call members re- II is set and the case is Count aside phase supported evidence. Other as- purpose for retrial for the manded relating punishment phase claims sessing provid- II punishment on Count not be need addressed. 565.035.5(3). ed in § The extensive of the issues above review deficiency requiring discloses no a retrial ROBERTSON, C.J., RENDLEN and guilt. only on the issue defendant’s COVINGTON, JJ., and HIGGINS and remaining question is whether this Court WASSERSTROM, Judges, Senior concur. order a new trial on all or on issues BLACKMAR, J., part concurs in punishment question alone. The is answer- part separate filed. opinion dissents ed statute: THOMAS, JJ., not authority regarding In addition to its cor- BENTON and court, errors, supreme participating rection of because members sentences, regard to of death review Court when case was submitted. to: shall be authorized BLACKMAR, part Judge, concurring (1) death; affirm sentence of dissenting part. *17 (2) set the sentence aside and resentence portion principal I of the concur the imprisonment life the with- directing opinion vacating the sentence and eligibility probation, parole, out or penalty phase. of I do not a new trial the except by governor; act of the or release disagree conclusion that there is with the (3) set the aside remand sentence and appeal, in the initial cannot no error but punishment
the case for retrial of the judgment guilt affirm of be- vote to the hearing. jury A shall or new be selected motion I that deference to the cause believe jury agreement a be waived of findings requires that direction court’s the parties the punishment both and then guilt phase trial the and of a new of both proceed trial shall in accordance with penalty phase be affirmed. the chapter, exception with the that the evi- guilty convincing of the ad- a presented very dence verdict shall be The evidence together the trial with pointing missible new the de- chain of circumstances testimony transcript any official of the guilt. problems Yet there are fendant’s properly admitted in each and evidence purely The evidence is and uncertainties. stage original trial where relevant unexplained matter is circumstantial. One punishment. to determine defendant, 4 feet 11 tall and how the inches 110 could moved weighing pounds, have 565.035.5. Section from home to her much heavier mother the statute language of this is sufficient- distant, eight through a point miles a situation now under ly to cover the broad fence, 55 from the wire and feet barbed apply appear consideration. It does road, If else by herself. someone nearest entire only appeals to direct but involved, might person that were this Court gamut procedures of which murderer. If the defendant committed in- sole death sentences. That would reviews murders the aid of of one or more with ineffective assistance clude claims of might that person, jury take proceeding. in Rule 29.15 another counsel raised a ex- assessing circumstance into account de- short the standards that should be pected penalty (It a death case. He did not punishment. and was not liberation try family to talk members to see even necessary strictly to the state’s case to might appar- they say. have to He what killings place took establish be- ently they nothing assumed that knew P.M., “The tween 10:35 when Jeffersons” helpful. aired, P.M., 11:15 when the defendant and Turner, I met Linda but find the time family Testimony of and friends is often analysis principal opinion in the somewhat punishment phase capi- adduced at the of a persuasive.) presents less than The case trial. Here there are substantial indica- tal aspects investigat- sisters, which should have been tions that the defendant’s natural Wheeler, ed, her judge supported is Elizabeth Lawson and Norma and well Coslett, stepbrother Joe others who his did that the defendant her, willing had known would have professional help have the kind of that is testimony might helped give have her. appropriate for a case in which the death did find out Her counsel not even bother to any sought. sentence is Of course conclu- might say. they what That effect sion about the omissions penal- essence of his ineffectiveness speculative, but it cannot be said that ty phase. Counsel admitted that challenge the state’s chain of substantial verdict, surprised at the death and the not affect the result. circumstances would reasonably had not court concluded that he hearing The motion court conducted a given phase the punishment advance transcript more produced which than it Counsel testi- consideration deserved. pages. judge prepared then phase strategy consist- penalty fied that his findings memorandum of his lengthy viewed as the emphasizing ed of what he conclusions. The memorandum shows in the case: the defen- mitigating factors judge thoroughly familiar with record, her emo- lack of a criminal dant’s U.S. Washington, 466 Strickland abuse, due to childhood tional troubles (1984), 80 L.Ed.2d S.Ct. relationship her good with children. her applied diligently the rule that case family no Yet counsel called members rejected great majori- the evidence. He friends, verify who could close one ty of defendant’s claims of ineffective abuse, story of childhood defendant’s assistance, grounds of but found some nine the defendant interact no one who seen touching guilt both the ineffectiveness counseling ses- children outside I do not phase penalty phase. and the hastily He collected witnesses sions. *18 comprehensive findings can only psychological believe that his a counselor who had “clearly years several earlier lightly so aside as erro- seen the defendant brushed be children, problems her a minis- with about neous.” jail chaplain visited her serving as who ter try to did even meet Trial counsel not The case occasionally, and the defendant. family, the defendant’s members of with finding assistance at the ineffective for phase or punishment for about evidence stronger penalty phase is much than was his reasons as expressed He otherwise. Armontrout, 937 F.2d Kenley shown follows: (8th Cir.1991). remember, at the time there I that As spoken Had with Lawson counsel conflicting really got sto- was—we—we that he could quite possible is it Wheeler relationship ries between as be that would have discovered evidence and sisters. One and her other brothers guilt phase also. Some of helpful at things concerned me was of the that against damaging testimony most know, not, you they had fact that stepsis- by was furnished defendant much or her that contact visited constant Denker, ters, Laas each Anna and Clara County Pettis Jail. she was while a tele- that she overheard said whom one we talked with sister. I—I know And said that phone call in which defendant really don’t remember. But I—I—I —I her mother had been her father and both shot, only body judge her father’s that the motion at a time when surprising It is not testimony of The discovered. investigation fell had been pretrial counsel’s felt that He impeached mony simply impeaching. not could have would be Wheeler Lawson ques- his information them, was close with when long because she told before Denker surpris- police, tioned but this is not trial, in the that she not room ing. postconviction He at testified the call. The when the defendant made hearing suspect he that he feared was a opinion to excuse counsel’s principal seeks very nervous. He also testified ground on the that counsel had no omission approxi- that the arrived home pro- notice advance that the sisters would murders, mately night 11:00 on the of the impeaching information. vide this But phone told him on the and denied that she plain obliged him to duty counsel’s conduct parents that were He stat- both her dead. family depth in some interviews mem- that not tell that he could ed he did counsel bers, probe family of the the details that, conversation, “I not recall the but discovery gathering following of the fa- phone remembered conversation. body. judge reasonably The ther’s motion remembering problem There that.” was no this, that, had counsel done concluded testi- judge The motion credited Turner’s obtained this valuable informa- would have opinion usurps this mony. principal one impeaching tion. The effect of of the adopts credibility determination point patent. two witnesses a vital counsel’s of Turner as characterization realistic, case, Nor is it in a circumstantial though judge “evasive” motion even say impeaching failure to obtain found Turner not if Turn- incredible. Even only be if it evidence considered would telephone, er over was uninformative produce Anything a "viable defense.” any find- possibility counsel foreclosed tending key to undermine a circumstance ing limit- out further information when he important. would telephone ed himself to the conversation. Any experienced lawyer knows that wit- produce impeaching Failure tight-lipped nesses inter- who are when may support finding a of ineffectiveness.1 by telephone casually viewed sometimes opinion principal The cases listed in the open up in a face-to-face interview with must be to support what shown order There clear ba- skilled interviewer. was a finding ineffectiveness failure concluding sis Turner was wit- produce impeaching appro- evidence are ness at should the center scene who cited, priately all because involve situations spoken directly. have been It is not findings the trial which court’s of fact appropriate by saying to defend counsel They were sustained. were not intended to no assurance that Turner there was authority circumscribe the of the trier of give in an in- different information the fact to consider the entire record in terview, like- or that his information would determining prevail- met whether counsel change point ly the result of the trial. The ing competence. standards get is that made no effort to judge’s of ineffectiveness in this information, and so was to make unable clearly respect supported the evi- strategic informed or tactical decision. simply dence. Court substitutes its judge The motion faulted counsel for his. judgment for *19 pursuing information Mr. Wells’ about appears in the The same fault casual “fencing” fami- activities. Interviews with the finding dismissal of trial court’s that very ly might yielded well members have should interviewed Mike counsel have helpful duly in a information. Counsel’s Turner shared a resi- Turner face face. suggest case is to that oth- circumstantial (although the defendant his ro- dence with might motives the ers have to commit apparently mantic involvements were usually charged, judges crime and trial others). party He the was the other The hack- give leeway. counsel substantial 2 herring” telephone call, neyed cry not an ade- significant and so his testi- of “red is State, 286, pro- dogs. part adversary (Mo.App. is a v. 288 Diversion the 1. Bonner 765 267, 1988); Trimble v. 693 S.W.2d 271-75 cess. (Mo.App.1985). herring dragged is is 2. A red a dried fish which hunting confuse a fox’s trail in order to across
648
shoeprints.
not the
investi-
the
This was
quate answer to counsel’s failure to
about
counsel,
prepared
I
to believe
who
the ex-
gate further. Nor am
fault of trial
wanted
imprecise
system,
casual
pert,
public
that
the somewhat
of the
defender
but
Turner,
4
necessary
in
v.
623 S.W.2d
provide
statement
State
the
which refused
1981)
(Mo.
designed
overrule
banc
was
sys-
funds.
is furnished
this
Counsel
carefully
holdings of
considered
Sutter
the
tem,
system
delinquencies
and so
in the
282,
284,
Easterly,
354 Mo.
189 S.W.2d
finding
incom-
may be the
for a
basis
Purdome,
(Mo.1945)
290
and Osborne v.
suggestion
point
petence. The
that
159,
(Mo.1952).
is
Turner
part
initial
as a
of the
should be raised
court’s
adequately explained under the trial
un-
appeal
hypertechnical,
is
and unsound
is ut-
to exclude evidence which
discretion
decisions,
appeal
for both the initial
der our
value,
lacking
probative
and also
terly
the
appeal
the PCR
are now before
unavailability of
absence of evidence of
presentation in this man-
We invite
Court.
needed,
If
the declarant.
corroboration
compe-
points touching
by holding
ner
adequate
repeated
should
declarations
be
in the
raised
tence of counsel cannot be
supply it.
cannot
To assert
circumstances,
any
appeal
initial
under
failing to
inadmissi-
ineffective for
be
offer
method
is exclusive as a
that Rule 29.15
point.
was
evidence misses the
Counsel
ble
Wheat,
arguing incompetence.
State
investigate
ineffective for
1989).3
it
Nor is
tion trial on the and there- “clearly the decision erro- pronounces fore transcript and neous.” The findings diligence a lack of judge’s show to secure the information support judg- necessary to informed very repetition of instances ment. The Missouri, Respondent, STATE of supports pursue leads the find- failure ing. The trier of fact is entitled to form a SCHERER, Appellant. record, D. judgment from the whole which we John displace. should loath to be No. 43250. WD applies just has been said with all What Appeals, Missouri Court to a greater force circumstantial case. Western District. circumstances Just as the relied on prosecution should not be in iso- viewed Sept. 1991. lation, defense must have so the reasonable Rehearing Transfer to Motion for and/or countering prosecution latitude 29, 1991. Supreme Denied Oct. Court in presenting circumstances which Denied Application Transfer clearly raise The motion court is doubts. 17, 1991. Dec. concluding coun- supported defense sel in his search for circum- was remiss Clay Appeal from the Circuit Court might possibly helpful. stances which Hutcherson, Judge. County; John R. are effec- Criminal defendants entitled to Ladesh, Defender, Dist. Katherine E. posttrial provide proce- tive counsel. We Liberty, for appellant. are appointed. new counsel dure in which Gen., Webster, Geoffrey Atty. L. William temptation appellate for always It Preckshot, Gen., Atty. Jefferson Asst. W. judge, a circuit or a judges think that respondent. City, for findings jury, clearly erroneous conclusions, simply because the writer P.J., TURNAGE, KENNEDY Before have decided the facts opinion BRECKENRIDGE, JJ. temp- But we should resist that otherwise. court, for the motion tation. It is us, evi- resolve doubts about the ORDER opinion departs from principal dence. PER CURIAM: Wells, holding in State the recent stealing over from 1991), Appeal conviction single that a S.W.2d 746 570.030, $150.00, and sen- significant RSMo piece produce just one § failure to notes Court in gun crouching the long barreled with a was ineffective. find defense counsel solely in car the Wells’ parked shadows behind the addition, court found that the motion In made reports avail- driveway. These were Public Defender of the Missouri director proof, prior to De- den of failed to coun- able to defense counsel trial. has show that subpoena attempted counsel to Fox fense responsible for sel was Fox’s failure to for the trial. There was no evidence show- appear testify. and Defendant has failed subpoena ing whether the was ever served prove Fox to would have testified or, obtained, if Fox not on service was any way provided that would a viable any counsel had information re- whether Therefore, regarding the defense. facts garding Fox’s at the of whereabouts time investigate Fox insuffi- failure to are addition, during In trial. months lead- cient to ineffective support of trial, trial, ing up during and for some assistance counsel. Hogskooter trial, time after there was a warrant out- State, (Mo.App.1984). 681 S.W.2d standing for Fox’s arrest on unrelated charges, having the warrant been issued C. the Pettis County Circuit Court. That war- court also found inef- counsel rant was never executed. failing investigate fective deposed anticipation Fox was present that J.D. in- evidence Wells was hearing. deposition Rule 29.15 At his ring. goods volved stolen The source investigating contradicted he had told what of this was Norma evidence Wheeler officers. Instead of the unidentified man Lawson, Elizabeth sisters of defendant. crouching car in the driveway, behind a They investigating told officer Fox testified standing that the man was trial that a man not they they believed did open. being shadows, Instead of know killed J.D. Wells because Wells was standing Fox testified the man was under- dealing goods. inves- “pole stolen state’s light” neath a at the rear tigators Wells’ house. up theory Fox also said he defen- on this saw followed parked dant’s car at Wells’ house on Both found usable leads. Wheeler 4, 1988, May sometime after 9:30 p.m. Lawson questioned were about their knowl- edge subject post-conviction at the Fox testified hear- hearing. Both testified their father ing. Again story changed. his At the something about one oc- hearing, he “mentioned it” on testified he saw the unidenti- casion, fied man the night they murders. had no other information. but before He claimed his earlier statements that he Prior to trial defense discussed the night saw the man on the murders alleged ring goods stolen mistaken. Fox could not describe husband, and her but former was unable because, color of the man’s trousers as Fox any uncover information benefit. There- it, put good.” “I didn’t look that At his fore, pursue not fur- counsel did the issue deposition Fox wearing said the man was ther. jeans. addition, In blue Fox stated that at The motion court faults counsel for gave po- the time he his statement the Lawson and Wheeler lice, he it.” “wasn’t that sure of There testimony they about what were told other in Fox’s were contradictions testimo- Wells, assuming J.D. the evidence was ad ny given during deposition and at the penal hearsay missible under interest hearing. But those additional contradic- exception. Turner, unnecessary highlight are State tions the ab- 1981), probative testimony. attempted of his sence value a defendant introduce of an out-of-court decla Viewing contradictory Fox’s person. person ration of another other confusing testimony objectively, it would allegedly committing the crime admitted strategy pursue not to be a reasonable.trial This of which defendant was accused. However, him as a witness. defense coun general in crimi Court stated that rule pursue sel did Fox. If service the sub proceedings against nal is that declarations made, poena was that was shown to penal are not as an interests admissible If the fault of defense counsel. service