*1 room, list the which did not property the property control. concerning inmate decisions box. in nature addressed are not ministerial These decisions “necessarily the exercise of a as involve are insufficient conclusions Charron’s require judgment degree of substantial su- allegation that the assistant support his aspects pris- manifold of consideration discretionary were decisions perintendent’s operation.”9 The trial made in bad faith. superinten- It was within assistant failure to state petition his dismissed discretion, prison of safe- dent’s as matter claim. do seized ty, to what to with items decide disposed on other As case we library. in the He ordered as contraband address the constitution- grounds, we do not any donated appropriate items be judgment is af- ality § 516.145.11 any charity, property items the and that firmed. inappropriate for charitable room officer felt disposed through the institutional use be All concur. superintendent’s ac- trash. As assistant discretionary, they protected tions immunity. To
under the doctrine of official purpose
hold otherwise would undermine the “[Sjociety’s compelling the doctrine.
behind vigorous
interest effective administra- requires that public
tion of affairs law who, in face
protect those individuals resources, imperfect information and limited WHITE, Appellant, Leamon daily judgment their must exercise best conducting public’s business.”10 Missouri, Respondent. STATE III. No. 78459. argues that even if we de
Charron superintendent’s cide that the assistant de Missouri, Supreme Court discretionary, they are not cisions were En Banc. sovereign immunity protected under 25, 1997. Feb. superinten doctrine because the assistant “maliciously, willfully, cor dent made them 25, 1997. Rehearing Denied March ruptly, Taking all the and in bad faith.” true, pleads he con facts that Charron as personal property
cedes that left He facts that
library overnight. singled maliciously
demonstrate that he was any way. The that the
out in record shows superintendent instructed
assistant dispose or do
property room officer to seized, every just aban
nate item those case, the items Charron.
doned inmate
were not marked with Charron’s accepting Even
identification number. left
true that the box which he mother, was addressed to
clothes judgment superintendent made his
assistant from him
based on list forwarded Rector, 328 Mo. Kanagawa, 11. State
9.
890 *5 children, gulation asphyxiation. The nearby during who were in bed in a bedroom attack, were later able to free themselves trial, police. Kinney and call At Ms. Mr. Black identified as one of Leamon White attackers. de White was convicted first Pendergraft, Melinda K. Asst. Public De- gree murder and sentenced to death. On fender, Columbia, for appellant. appeal, this Court conviction affirmed the and sentence. (Jay) Nixon, Attorney Jeremiah W. Gener- al, Dolgin, Cassandra K Attorney Assistant opinion, the Court described General, City, respondent. Jefferson surrounding filing circumstances White’s post-conviction various motions for
HOLSTEIN, Chief Justice.
In August
pro
relief.
White filed
se
29.15,
motion under Rule
but
failed
Leamon White was convicted of first de-
notarized, apparently
notary
because
gree murder and sentenced to death. This is
prison.
available to him in
motion court
The
appeal
an
judgment denying
from a
relief
counsel,
appointed
requested
who later
an
pursuant to a motion to
judgment
vacate
extension of time
an
to file
amended motion.
sentence under Rule 29.15.
primary
White’s
About two weeks before the extension ex-
contention is that his trial
pired,
withdrew,
attorney
first
and anoth-
investigation
presen-
ineffective
their
days
appointed.
er was
after the
Several
witnesses,
dire,
tation of
conduct of voir
sen-
period
newly
filing
expired,
extended
tencing phase strategy,
they sought
and that
appointed attorney
mo-
filed first amended
to undermine
post-conviction
his chances for
tion and
application
for a further exten-
relief in order to insulate themselves from
granted,
sion
That
time.
extension
criticism for
performance.
their deficient
and a second amended motion was filed.
holding
evidentiary hearing,
Without
judgment,
issued
circuit court overruled
White’s
29.15
*6
findings
included
and conclusions of
fact
motion. We find that
none
the numerous
denying
evidentiary
law
relief without an
allegations
by
made
inWhite
his motion for
hearing
1,1990.
August
on
Without address-
post-conviction
require
relief
an evidentiary
ing the motion
judgment,
court’s substantive
hearing.
judgment
of the circuit court is
findings
Court remanded for
on whether
affirmed.
post-convic-
White had
by
been abandoned
tion counsel.
I.
remand,
On
the circuit court dismissed the
White’s Rule 29.15 motion has been before
Rule 29.15 motion as not
verified.
prior
this Court on two
occasions.
In the
alternative,
In the
the court determined that
White,
appeal,
first
v.
State
in
three men entered the home
Wright
of Don
Kinney, purported
White,
and Carol
appeal,
In the second
ly
buy
Instead,
(Mo.
crack cocaine.
the men S.W.2d 590
banc
this Court ruled
up Wright,
tied
Kinney
children,
and her
signature
that White’s
was sufficient verifica-
Raymond,
Black,
Deonta and
and Earnest
a
tion
pro
for the
se
29.15 motion.
Rule
How-
guest in
ever,
the home. The men beat Mr. Black
the Court found
motions
both amended
Wright,
interrogating
and Mr.
untimely
them
about
be
the motion
because
drugs.
jurisdiction
where to find
slit
Then
men Mr.
grant
lacked
more than the
Wright’s
Kinney’s
prescribed
and Ms.
thirty-day
throats
left
extension. But
house,
turning
gas
after
on the
stove and Court reinstated the first amended motion
blowing
pilot lights.
out the
As a result
of because
concluded that trial counsel’s fail-
attack,
savage
Wright
Don
timely
died of stran
ure to file a
amended motion eonsti-
Court, however,
or
addresses
witnesses
names and
abandonment. The
tuted
you
upon
intend to
mo- other evidence
to reinstate
second amended
refused
rely[j”
appointed,
is
tion,
only
right
“[i]f
counsel
holding
had the
Once
that White
...
sufficient facts
does not assert
Rule
motion drafted
motion
one amended
29.15
an amended motion which
mo-
shall file
Court also found that the
counsel
counsel. The
sufficiently
all
set
the additional
failed to address
claims
tion court had
29.15(e).
re-
The redundant
grounds.”
mo-
Rule
pro
in the
se and first amended
forth
that a
plead facts makes clear
Accordingly,
quirement
remanded for
tions.
the Court
ordinary pleading
no
ad-
29.15 motion is
findings of fact and conclusions of law
Rule
may be in-
pro
missing
allegations
factual
and first where
dressing all claims
se
implied
from
conclusions
ferred from bare
amended motions.
prayer
for relief.
remand,
On
the motion court found
in the first amended motion
the issues raised
differ
A Rule 29.15 motion
treated
judgment
on
addressed
the first
been
ently
pleadings in other civil eases be
than
1990,
August
findings
new
and entered
judg
on a final
it is a collateral attack
cause
and conclusions of law on the claims
fact
While courts are solicitous
ment of a court.
motion, denying all
pro
made in the
se
relief
present
genu
post-conviction
claims
evidentiary hearing.
an
without
injustice,
policy
ine
must be balanced
against
policy
bringing finality
only
Court now considers
timely
Requiring
plead
criminal process.
rulings
allegations
motion court’s
on the
con
ings
reasonably precise factual al
containing
pro
tained in White’s
se and first amended
injustice
legations demonstrating
such
rulings is
Rule 29.15 motions. Review of the
on Rule 29.15 movant
not an undue burden
determining
limited
whether
necessary
bring
about
and is
order
clearly
29.150)
erroneous.
State,
finality.
Fields v.
S.W.2d
See
findings of fact
the trial court makes
Where
1978).
(Mo.
requiring
Without
such
banc
law, proper
will be
and conclusions
result
pleadings, finality
and scarce
is undermined
affirmed even
one
the conclusions is
public
expended
will be
investi
resources
Bradley,
error. State
claims,
vague
illusory
gate
often
followed
1991)
curiam).
(per
hearings. For
unwarranted courtroom
reason, it
has been held that
eviden-
II.
tiary hearing
required
will
unless the
be
argues that
court erred
the trial
“(1)
requirements:
motion meets three
evidentiary
refusing
grant
facts,
conclusions,
must
*7
of
the numerous claims
ineffective assistance
relief; (2)
warranting
facts
must
of counsel raised in his Rule 29.15 motions.
by
not
the files and
raise matters
refuted
hearing
evidentiary
required
An
is not
where
(3)
case;
in
and
the matters
records
“the motion and the files and record of the
preju
in
complained of must have resulted
conclusively
is enti-
case
show
movant
Starks,
856
dice to the movant.” State
(1988).
29.15(g)
tled to
Rule
reliefi.]”
1993). Thus,
336
evidentiary
claims of
subject
require-
A
obtain an
Rule 29.15 motion is
counsel,
timely
of
the movant
filing
on ineffective assistance
ments of
and limitations
(1988).
facts,
record,
by
29.15(b)(f)
allege
refuted
must
not
amendments.
(1)
Moreover,
substantially
showing
performance did
that counsel’s
such motion must be
care,
skill,
degree
and
of
provided by Form 40. Rule
not conform to
in the form
(1988).
reasonably competent attorney,
29.15(b)
diligence
40
of
Paragraph 8 of Form
(2)
prejudiced.
“concisely
thereby
See
requires a
that he was
movant
state
all
52, 60,
Lockhart,
106 S.Ct.
you
setting
vacating,
for
Hill
U.S.
grounds known to
(1985);
366, 371,
Strickland
your
and sen-
88 L.Ed.2d
correcting
conviction
aside
668, 687,
Washington, 466 U.S.
requires
a v.
Paragraph
of Form
tence.”
Because
support
without an alleges he was denied effective
representation of counsel because one of his
other, unrelated,
attorneys represented
capi
A.
simultaneously.
alleges
tal defendants
He
"White
counsel was ineffective
attorneys
that one of his trial
“was
unable
in that:
devote his full time and attention to movants
compelled
required
[He]
movant to
proceedings being
[sic] trial due to
conducted
condone,
take the witness stand ...
in
at
other forums
the same time as movants
verify
sanction trial counsels [sic]
and/or
trial,
resulting
attorney]
in
[sic]
[the
thus
i.e.,
strategy,
call,
trial
what witnesses to
leaving
[sic]
movants
murder trial while court
questions to
what
ask and what evidense
proceedings.”
was
session to attend other
general.
[sic] to marshall
[sic]
claim,
denying
the motion court con
improper conduct of
impermissably
counsel
cluded:
provenee
[sic] invaded the
of the at-
[sic]
allegation
allege
...
[M]ovant’s
torney
exposed
relationship
[sic]
cliant
prejudiced by
repre-
how he was
counsel’s
movant to cross-examination
the state.
sentation of other clients while movant’s
prejudicial
Said conduct was
to movant.
in progress,
trial was
nor has
al-
movant
leged any
sup-
regarding
counsel’s
pleadings purport
allege
im
posed
allega-
conflict
interest. Movant’s
proper conflict of interest between movant
especially
considering
tion is
meritless
every
trial counsel. Inherent
criminal
represented
by [a
he was also
trial
protect
case is counsel’s
desire
himself
attorney],
second
about whom movant has
from
future claims
ineffective assistance of
any allegation
not made
conflict
inter-
counsel
pre
and the defendant’s desire to
est.
serve claims of
coun
ineffective assistance of
sel in the event of
is
conviction.
It
clearly
This conclusion is
erroneous
improper
steps
protect
counsel to take
appellant’s
contention
refuted
the rec-
doing so,
his own interest
he does not
acknowledge
ord. White fails
the fact that
disclose confidences of his
which harm
client
represented by
was
attorneys.
two trial
per
the client’s interest. There is no
se rule
incorrectly
White’s claim would lead one to
prejudice
presumed
will be
when coun
represented by only
believe he was
one.
sel makes a record that has the effect of
challenge
repre-
White fails to
co-counsel’s
refuting subsequent claims of ineffective as
during
periods
sentation
which one
matters,
sistance of counsel. As with other
allegedly
was
absent. White
post-conviction pleading asserting ineffective
specificity
also fails to set forth with
how he
assistance of counsel
facts show
must
prejudiced by
attorney’s
absence.
ing
improp
what counsel did or
said that
rejected
The motion court
this claim
showing
er and facts
how the movant was
hearing.
without a
prejudiced.
Here counsel
faulted for hav
ing asked movant on a number
occasions if
C.
agreed
unspecified
movant
strategic
de
*8
trial
White contends
counsel was inef
conclusions,
of
cisions
counsel.
from
Aside
following regard:
fective
the
no specific
by
ques
information disclosed
the
tioning
is
pleadings.
engaged
the
Neither
in unethical and im-
[C]ounsel
any allegation
proper
such
[sic]
there
as
how
disclo
conversation with the victims
might
family
sure
have
as
harmed movant so
immediate
members. Said conver-
of
by
undermine confidence in the outcome
the
sations involved discussions
defense
conclusions,
more,
concerning
trial. Such
do
the
of
without
not
counsel
merits movants
representation
assert
or
and
[sic]
[sic]
either
ineffective
defense
movants
trial strate-
prejudice.
plead
prejudice
gy,
Movant did not
facts enti
all to the
of movant. De-
Thus,
tling
knowingly
him
on this
the attor-
to relief
issue.
he
fense counsel
violated
evidentiary hearing.
ney-eliant
relationship by divulging
[sic]
was not entitled to
po-
in the
aforestated,
given by those witnesses
this conduct is move
ments
and
the
depositions given
well
reports, as
lice
grevious
when defense counsel
[sic]
[sic]
in the defendant’s
same witnesses
known
those
reasonably
or
should have
knew
eases[,]
of which
either
and co-defendant’s
family
the
members were
[sic]
that
victims
impeach those
used to
could have been
relaying
[sic]
all information to the States
they thought
the
if
correct
witnesses
attorney.
transcript
strategy
utilize. The trial
rejected
court
claim on
The motion
White’s
with which defense
replete with instances
showing
prejudice
the
that no
of
basis
depositions
police
and
these
counsel used
an eviden-
made.
denied
impeach
the State’s witnesses.
reports
allega-
tiary hearing on
claim
as White’s
trial
challenge is
No
made
merely
speculation.
tions are
conclusions and
depositions
the
finding
court’s
existence
reading
pleadings,
the
is unable to
By
one
police reports contain
from other cases and
what was said
counsel that was
discern
ing
witnesses. The record
statements
improper or what
of trial
unethical or
tidbits
finding on
supports the
plainly
motion court’s
con-
strategy
might
communicated that
availability of
In view of the
issue.
ceivably
prejudiced
the movant.
and
depositions
related cases
from other
specula-
own
White’s
brief demonstrates
investigative
re
witnesses
statements of
says,
nature of the claim
he
tive
where
correctly found that
ports, the motion court
was,
fact,
attorney
Mr.
dis-
White’s
If
attorneys’
depose
and
failure to interview
defense,
cussing the merits of Mr. White’s
as
not amount to ineffective
witnesses does
strategy
his
trial
members
pre
strong
of counsel. There is
sistance
knew,
family
reasonably
or
if
significant
made all
sumption that counsel
known,
family
that
mem-
should have
pro
the exercise
reasonable
decisions
conveying
bers were
information to
Stepter, State v.
judgment.
fessional
then counsel was
prosecutor,
guilty of
1990)
(citing
loyalty to
an unethical breach of
his client. Strickland,
In this while defendant’s Kinney Raymond was the crime. eyewitnesses to about had not talked [sic] Ray- testify witness. them, they as a defense deposed had state- called case or mond Kinney testified that he and Deonta were that perpe- AJ was second place. bed when the incident took Their trator bed of this murder not Movantf] separate a room from the as- where added.) (Emphasis saults place. lights and murder took The All paragraphs three assert were off in Raymond the bedroom. saw one and obvious truth that irrefutable defense person spoke assailant and that awith Ja- counsel “failed to testimony” adduce favor Raymond maican accent. further testified question able to movant. The remaining is attorneys that the brought defense him had allegation whether bare of counsel’s fail to court on previous a occasion to look at testimony ure to adduce certain mov- entitles Raymond White and at that time did not Clearly, ant to relief. the answer is no. recognize Apparently, White. White’s coun- prevail on a claim of ineffective “[T]o assis Raymond sel was testify aware that would tance of counsel’s counsel due to failure favorably and had seen and talked to him testify, call a witness movant must prior to trial. These facts White’s refute that if show the witness have testified would suggestion that failed inter- testimony and that called the witness’s would view the or steps children take to determine aided defense.” have the movant’s State what the children knew about the crime. Johnson, 1995). facts, plead The burden is on movant facts, Because failed to allege what conclusions, only establishing not who the any, if developed by would been have more they testify were would witnesses but what deposition extensive interview of witnesses called, to, if and that such evidence would movant, and how that would have aided provide pleadings a viable defense. White’s pleading entitling him to stop alleging directly short of what the wit grounds. Moreover, relief on these the claim such, testify to, would if nesses called. As by refuted the record. they are deficient and no was re quired on these claims. E. requirement directly that movant motion, In his first amended allege facts to which the witnesses would following makes allegations: testified, called, if more than a techni- case, cality. may In every post-conviction D. That counsel to ... adduce tes- failed truthfully be said that there innumerable timony Kinney during [Ben ] from testimony witnesses whose favorable murder, trial the victim of the myriad of issues was not adduced trial Wright, girlfiiend eye Don or his — wording counsel. The subtle “counsel failed co-victim, witness and [sic] Kin- Carol suggests might adduce” what witnesses ney drug were dealers of cocaine to say directly stating they without were establish that others com- could have favorably available and would have testified mitted these offenses[.] movant, plead- called. To declare such E. That counsel to adduce testimo- failed ing permit post- to be sufficient would ny Kinney from Kinney Ben that Ben litigant lawyer sandbag conviction and Wright and Don sold drugs two and the motion court with numerous Josh; men the names AJ of. perfor- unsubstantiated claims deficient this was relevant because AJ and Josh of trial mance counsel in to “adduce” Kinney Ray- had Ben threatened testimony from The State would witnesses. Kinney mond Deonat [sic] put having then be to the task of to investi- . perpetra- identified AJ the second gate say, what the witnesses and the murder; tor of this this conflicted required hearing, court would be to hold a Kinney with Carol Black Earnest though even may there not be a scintilla of saying perpetrator second evidence witnesses available Movantf] would, testify fact, testify and that F. That favorably Meanwhile, counsel to adduce testimo- to the movant. failed ny Raymond from Deonat post-conviction post-convic- [sic] and movant and the
897 awith impeach to a witness truthfully say they Failure could tion counsel not, se, per does prior inconsistent statement misrepresentation of fact made of performance counsel. constitute deficient court, subject to them sanctions State, 92, See, 775 94- e.g., S.W.2d or, Roberts in the the Rules Civil Procedure under 494 U.S. 95 lawyer, pursuant of a sanctions the case 1506, 108 L.Ed.2d To of Professional Conduct.1 hold Rules im attorney may not to decide A defense allegations sufficient would turn the such strategy. as a matter of trial peach a witness gamesmanship. pleadings process into clever specify the pleadings fail to Id. White’s Finally, if one assumes the even incon alleged “prior or content the nature Kinney or chil- alleged that one both the allegation that A bare sistent” statements. dren, testify, identi- if called to would have “prior inconsistent” certain witnesses made assailants, fied A.J. as one the three stating and what was said statements without may All allegations are still insufficient. at with was testified to how it conflicted what testimony is that be said such assumed conclusion, Many incon a not a fact. trial is was not No one of three assailants movant. as to insignificant are so sistent statements showing movant was not facts are asserted easily ex meaningless and others are so be persons who committed one of other two justify being plainable presented as to not murder, alleged explain and no facts how fails to disclose trial. Because White testimony of would tend to the children supposed and circumstances of the content exculpate White. statements, provides no factu inconsistent finding inadequate al basis for a of either F. representation prejudice under the or Strick that “counsel faded to test. Because White failed to land pretrial relief, attack the identification Movant him entitling the motion Kinney Carol or the in-court identification an point without eviden- denied Kinney of Movant Carol or Earnest Black tiary healing. by way Suppress of a Motion to when the Moreover, record refutes procedures by police utilized identification attorneys that his failed White’s claim unnecessarily suggestive
were and conducive impeach Kinney and Earnest Black Carol irreparable identification^]” an mistaken trial statements. The prior with inconsistent allegedly “suggestive and condu What these transcript instances which reveals several were, however, speci procedures cive” is not questioned Kinney and Black were both pro in the fied motion. The motion fails given to prior statements about inconsistent support allegations factual vide sufficient deposition. police, investigator to an or at police improper the conclusion that the used attorneys If claim that White’s such, ly suggestive As identification. go enough far ineffective pleading prop claim is deficient Black, it be impeaching Kinney must erly hearing. denied without impeachment rejected the extent of because Kenley v. strategy. trial See is decision of
G. State, (Mo.App.1988) curiam), sub grounds (per rev’d on other alleges that his trial Armontrout, F.2d Kenley v. to im nom. were ineffective because failed (8th Cir.1991). ease, every virtually Kinney “pri- peach witnesses Black must be left allegation, extent of cross-examination or statements.” inconsistent adage judgment of counsel. Id. old true, is insufficient to warrant relief. even 55.03(b) (3) "By allegations conten- provides part: presenting and other factual 1. Rule maintaining pleading, evidentiary support....” ... an ... in a or claim tions pro- attorney party certifying best or of Professional Conduct 3.1 Rules information, belief, person's knowledge, part: lawyer bring de- "A shall not or vides in inquiry under the after reasonable proceeding, formed assert or controvert a therein, fend circumstances, that: doing so is a unless there basis issue ” that is not frivolous.... *11 898
among lawyers tation, trial, trial “you only that videotape need to at of a in lineup which prove a is a liar particular witness once” has was identified State’s before witnesses application here. Seever, trial. White’s reliance on State v. 733 (Mo. 1987), 438 banc misplaced.
S.W.2d H. Seever, witness, child, the State’s made a videotaped detailing statement her account of White contends that in counsel was trial, in effective his cross-examination defendant’s sexual contact with her. At of witness Black, resulting testify, Earnest in the witness iden the State called the victim to after appellant tifying as perpetrators. playing videotaped one of the her statement for the alleges jury. White also that showing counsel was ineffec The Court held that the of the making tive in not to suppress motion improper bolstering. video was Id. 441. claim, in-court identification. this Seever, On videotape in Unlike at issue motion court concluded as follows: testimony duplicate was case offered to Rather, transcript videotape
It is clear that of a from the that coun- witness. was pre- cross sel’s examination of Black admissible was evidence of circumstances of cisely in strategy line with the trial initial out-of-court identification. The misidentification. Black identified movant motion did not in finding court err that the in-court [sic] on direct examination and it objec trial court would have overruled this clearly strategy was counsel’s to draw at- tion. Trial counsel cannot be deemed inef tention to the fact Black that had never failing object fective for to admissible evi identify able been him before. It is also State, dence. See Clemmons v. 785 S.W.2d difficult to prejudiced see how movant was 524, (Mo. 529 banc 498 questioning since Black had al- 882, 229, 112 U.S. 111 S.Ct. L.Ed.2d 183 ready identified movant on direct Kinney Carol both before at trial. At
most, therefore, response coun- Black’s J. questions sel’s was cumulative. argues attorneys White that his ruling in is not failing expert in to call were ineffective error. White has not facts that testify drug on the effect of use on the mind would warrant relief true. Review the regard receiving, processing inter record demonstrates that defense counsel White, preting According information. sought to show that the witness had misiden- presented expert “[h]ad counsel said testimo tified White. Black had testified on direct ny[,] jury reasonably could have found examination that White sec- “looks like the [sic] incourt identification of movant ond man” involved the murder. Counsel’s was not reliable due to witnesses regarding [sic] cross-examination Black drug consumption admitted confidence in and influence at his identification White as cogent perpetrators one of the times.” was consistent with theory. defense counsel’s misidentification
Counsel’s decision to cross-examine Black White sufficient facts decision, this manner a strategy performance to establish that trial counsel’s support will finding of ineffective assis- support charge was deficient. “To of inef Storey, tance. See fective assistance counsel based on failure 1995). (Mo. Furthermore, light banc testimony witness, an expert to secure the Kinney’s of Mr. Black’s Ms. other identi- minimum, required at a movant show White, fications of the cross-examination what the evidence would have been.” State complained byof White would not have re- Twenter, prejudice. sulted in 1991). Here, specify does not what an White been, expert’s testimony would have but
I. speculates upon presumed some testimo jury easily ny the in- counsel “could have found” object presen- ineffective court identifications unreliable. (1994). As 128 L.Ed.2d allege facts estab also fails to denying such, made court did not err the motion
lishing prejudice. White’s an issue without fail drug use of the witnesses counsel’s evidentiary trial Kinney Mr. testimony. Both Ms. expert alleged alibi witness. call White’s ure to they had on the Black admitted stand *12 killing were before and drugs taken the M. drug the of how the cross-examined on issue Thus, if perceptions. even their use affected counsel was ineffective alleges that White true, to not entitle allegation this does White informing “fail[ing] object to the court prongs both of the Strickland relief as fails governor the venire that of the members test. claim that Movant[.]” White’s pardon could in- giving such an trial court erred
the
K.
appeal.
rejected on direct
struction
Thus,
object White,
failed to
the motion
claims
“counsel
865.
White
S.W.2d
withholding
supressing [sic]
objection
to the State
an
finding that
court did not err
had shown
[sic]”
“[t]he
evidense
State
have been
statement would
to the court’s
photograph
Kinney
Black a
witnesses]
meritless.
making
prior
[White]
of
these witnesses
But,
says in
as White
identification....”
N.
motion,
allegedly
his
this
withheld evidence
during
As
motion
light
came to
trial.
the
that counsel ren
contends
White
found,
Kinney
Black
Ms.
and Mr.
court
both
upon failing to
assistance
dered ineffective
on their failure to iden-
were cross-examined
dire,
improper
object
State’s
voir
tify
photograph.
from the
Further-
White
limit
prosecutor did
wherein
more,
his
were
White admits that
general
of
circumstances
questioning to
photo by
previous at-
informed about the
his
specific de
provided
instead
offense but
torney. Thus,
allege
es-
facts
White
jurors.
predispose the
“We
in order to
tails
tablishing
by his
prejudiced
that he was
try
on
the case
permit
counsel ...
do
al-
object
failure to
counsel’s
State’s
in ex
of the facts
presentation
dire
voir
withholding of
leged
The
evidence.
Antwine,
v.
743 S.W.2d
plicit detail.” State
denying
point
with-
court did not err
denied,
(Mo.
1987),
51,
486 U.S.
banc
cert.
evidentiary hearing.
out
(1988).
1755,
1017,
Counsel also failed make effort to potential jurors rehabilitate spoke who am contends that counsel was in White biguously position concerning as to their challenging in not that effective the fact voir imposition White, penalty.” of the death record, by had been off dire conducted however, specify what was deficient judge other judge, than the trial and without about counsel’s voir dire examination. The appellant being alleges that, present. White also motion is silent as to which coun strikes result, as a he “was denied a full and com to, objected jurors sel should have and which plete transcript which perfect from his attempted counsel should have to rehabili appeal.” allegation clearly refuted tate. plead any Because White has failed to record, transcript which includes a of the information, specific pleading does not voir proceeding. specify dire White not does warrant relief. portions proceeding what voir dire missing transcript. Though from the trial However, the motion court found alleges present White that was not at that had White sufficient facts to portion dire, some of the voir he fails to judgment allow a on this issue as to one identify stage at what purportedly he was juror. The court further found that this absent. He does not contend he was that juror expressed inability a substantial present any portion for general impose penalty properly the death and was qualification phases death voir dire. juror struck in question for cause. The said Therefore, concluded, as the motion court opposed penalty he was to the death for allege prejudice any does not White religious reasons and could consider claim, therefore, specificity and his does not penalty. proper death It was to strike this hearing. warrant a Six, juror for cause. See State (Mo. denied, 159, 1991), banc cert. S.
U.S. S.Ct. 116 L.Ed.2d 165 (1991). The motion court did not err in White contends that counsel rendered inef- concluding objecting of this strike fective assistance “when counsel failed and juror would have been fruitless. object refused to to the court read-
ing
jury,
only
instructions to the
became
[sic],
proper
during
at the
close
evidense
Q.
alleges
White
counsel’s ineffectiveness
voir dire.” The motion court concluded the
object
meritless,
finding:
to the trial court’s voir dire
claim was
because
clearly
allegation
that all in-
was insufficient
White
transcript
shows
[T]he
prejudicial sub-
allegedly
appropriate
specify
fails
were read
structions
time,
show how
conferences. The
and movant has failed to
stance of the bench
only
denying hearing on this issue.
prejudiced him. The
instruc-
did not
this has
err
irregular
read at an
time
tion
was
explaining
the instruction
what
ob-
was
V.
meant, which
jection being sustained
failed
that “counsel
White
reread,
juror
because a
didn’t understand
request that the court instruct
and refused to
it the first time it was read.
jury
included offenses
lesser
identifying the instruction that
Without
manslaughter
degree murder
second
read,
improperly
purportedly
with-
instructions were supported
when such
authority,
supporting
contends
out
required
A
to in
court is
the evidence.”
clearly
finding is
that the motion court’s
er-
only
offenses
if the
struct on lesser included
“without a
roneous
acquit
provides a basis for both an
evidence
why
impossible to know
counsel failed to
greater
and a conviction of
tal of the
offense
jurors unduly empha-
object and
whether
556.046,
1994;
§
RSMo
the lesser offense.
sized
instruction Mr. White’s detri-
Mease,
110-11
patently
im-
ment.”
record reveals no
918, 113
508 U.S.
during
proper
dire. White
instruction
voir
2363,
voir dire when the State’s advised jury opinion as to the his what constituted W. murder, degree thereby placing imper- first legal jury. theories missible before the alleges his counsel was ineffec White object mitigating failing tive for to correctly The motion court concluded that given jurors to at instruction circumstances objection to the counsel’s State’s comments penalty phase the of his trial because it was been overruled. It is clear from 367, 486 contrary Maryland, to Mills v. U.S. page transcript that movant refer- (1988), 1860, 100 384 108 S.Ct. L.Ed.2d that, most, prosecutor gave ences at jurors not be confined to held that could example types that would crime mitigating circumstances consideration carry possible death sentence. Nowhere 375, unanimously. jury that the found Id. prosecutor say what he thinks first does and 108 at 1865-66. S.Ct. Moreover, degree murder is. White fails to brief, specify fails to which instruction White establishing preju- facts that he was it was violated. This violated Mills how prosecutor’s comment. diced Court can find no such error. Because presented, the mitigating circumstances were U. modified of MAI-CR3d following version alleges White that counsel “failed to regarding penal given the death 313.46 was necessary steps preclude take ty: general public jury, and the from witnesses compelled as the every You to affix death being able to each and bench overhear question prej punishment you even if have found exis- ... without [which] conference however, not, aggravating circum- him. tence of one more udiced” White does de You must all the circum- confer stances. consider scribe substance the bench deciding correctly found that whether assess The motion court stances ences. 902 punishment of
declare death. Whether AA. your that is to be final decision rests with alleges provided White that counsel you. object ineffective assistance in clearly This instruction not violate the does opening the State’s statement wherein the mandate of Mills. prosecutor said the evidence would show ongoing White was involved in an
X. conspiracy. existing White claims that the trial counsel object
was
for
“failing]
prosecutor’s
ineffective
to all
opening
statement
aspects
penalty phase
of the
argu
State’s
was
improper.
charged
White was
with
argument
ment
at no time
since
knowingly causing
Wright
the death Don
aspects
directed to those
of this crime or this
“by asphyxiating, cutting
stabbing
him”
justify
Movant
which would
sentence of
and that such crime was committed White
allegation
specify
death[.]”
fails
how
acting
knowingly
“either
alone or
in concert
phase argument
penalty
State’s
violates
purposes
with others....”
One of the
of the
argu
the “wide latitude”
such
allowed
opening statement is to inform the defendant
Shurn,
447,
ments.
v.
State
866 S.W.2d
463
contemplated
prosecution
of the
course
(Mo.
denied,
1993),
837,
banc
cert.
513 U.S.
fairly
charges.
enable him
meet the
(1994).
118,
S.Ct.
L.Ed.2d 64
762,
Murray
State
plead
demonstrating
that coun
488 U.S.
objection
sel’s
would have been meritorious.
ences statement to good admissible faith evidence made Y. expectation a reasonable the evidence that his trial counsel produced grounds will be are not rever “[w]hen ineffective counsel failed to re Harris, sal. quest jury instruct the that the *15 (Mo. 1994), denied, 953, banc cert. 513 U.S. testimony drug of a addict should be taken (1994). 371, 115 S.Ct. 130 323 L.Ed.2d Re with care and caution.” White identi transcript view of trial the refutes White’s fy drug which witnesses he claims to be supported contention that no evidence the addicts in paragraph this of his motion. prosecutor’s conspired statement that White Moreover, any authority fails to cite White with others. Evidence was adduced from that, establishing if a witness were shown to may which it be his inferred that White and addict, drug be a White would be entitled to accomplices perpetrated planned two a rob Ordinarily, such an judges instruction. are bery Here, prosecutor’s and murder. the making forbidden from comments on the evi opening improper statement was not because Thus, true, dence. allegation, White’s even if placed jury it before the and the defense the would not warrant relief. Hence, theory of the See State’s case. id. this claim does not entitle White to re Z. lief. White claims that counsel was ineffec object imposition tive for to the BB.
the death penalty that Missouri’s death penalty places statute unconstitutional dis counsel White was inef prosecutor. cretion in allowing This Court has fective in the mother victim’s courtroom, thereby already rejected this constitutional claim. brother to remain McMillin, 82,101-02 expected allowing See State v. 783 S.W.2d them alter their favor (Mo. testimony. banc able U.S. Neither witness was called (1990). testify trial. L.Ed.2d The White does state how finding expected testimony motion court did not err in that had the witnesses’ was objected, correctly changed. trial court counsel the trial As the motion objection. found, preju- overruled the White fails to show how he was specific find- presence court made extensive by the of these tion diced witnesses every on claim one ings and conclusions but the courtroom. necessary only a upon claim which and the CC. law was a meritless was omitted conclusion remand are not war- allegation, reversal and Subject exceptions, motion certain ranted. findings of conclu- court must issue fact and Barry presented. of law on all issues sions State, 349-50 III. 29.15(i) 1993); Rule claims raises, for first appeal, In his motion three
that the court did address time, raised in his Rule three claims not his claims. All three fail. 29.15motions. contention, Contrary to White’s findings conclu-
court did
fact enter
A.
allegations relating
to fail-
sions White’s
over
first
Judge
presided
Randall
White’s
failure
ure to interview
witnesses and
State’s
proceeding.
appeal,
In the first
Rule 29.15
object
regarding
judge’s
statements
to deter-
this Court remanded for
pardon.
governor’s authority to
These
White had been abandoned
mine whether
above.
claims
addressed
post-conviction
days
counsel. Several
before
hearing,
judge
had
conversation
alleges that
White also
counsel
attorney regarding the
prosecuting
“counsel,
when
without movants
ineffective
proceeding.
this
scope of the
White calls
agreed
knowledge,
consent or
to allow
[sic]
parte
improper
ex
communi-
conversation
jury
trial court
that in a
to instruct
cation,
gave
an appearance
rise to such
case,
attorney
previous
defense
another
judge
disquali-
that the
should have
bias
previous jury.”
lied
in fact
and misled a
himself,
sponte.
sua
fied
The
apparently
motion court
did
argument
judge’s
deter-
This
is moot.
allegation
not address
one
of ineffective
had not been abandoned
mination White
Barry
con
assistance
counsel. While
overturned
this Court on White’s
requires findings
cludes
Rule 29.15
Attempting to
appeal.
revive
second
issue,
every
fact and
of law on
conclusions
issue,
White notes
conversation
acknowledges
every
also
that not
failure to
original rulings on
first
judge’s
finding
of fact or a
of law
enter
conclusion
motion are
before
amended
29.15
still
requires
remand.
reversal and
true,
judgment
but that
this Court.
at 350. There are some common sense ex
*16
1, 1990,
August
and
was rendered
ceptions.
example,
finding
For
no
of fact is
allegedly improper conversation occurred
necessary
only
where the
issue is one of law.
later,
year
in October November
over one
addition,
appellate
In
court will not
Id.
expect judges in this state
of 1991. While we
a useless
order
remand
direct the
foresight,
expect a
it is a bit much to
to show
proper
court to enter a
conclusion of law on
disqualify
of a
judge to
because
conversation
by
issue
the motion
an isolated
overlooked
year
one
in the
that is to occur more than
court where
is clear
movant is entitled
future.
to no relief as a matter of law and will suffer
judge
rulings
the first motion
made
When
by being
See
prejudice
denied remand.
appeal, no hint of bias
(Mo.
to the current
relevant
Stallings,
Therefore,
duty to
was under no
he
existed.
App.1991).
disqualify himself.
case,
particular
In this
White’s claim
by
re-
the record. The trial record
refuted
B.
by the
no oral or written instruction
veals
case,
jury
dis-
any
in
Three weeks after
judge
jury
earlier
hearing
in
Thus,
judge held
attorney
jury.
plead-
charged, the
to a
trial
lied
chambers,
juror
that he
conclusively
where a
testified
ings
record
that relief
show
might
high
school
thought
gone
Inasmuch
the mo-
he
properly denied.
during
a man
in
post-
who sat
the courtroom
failed to raise it in the motions for
29.15(d).
Apparently,
family
required by
the trial.
this man was a
conviction relief as
Rule
Twenter,
juror
point
member of one of the victims. The
is not reviewable. See
Moreover,
testified that he had not associated the man
issue in his direct or assert it in his motion, Rule 29.15 he now asks this Court to IV. plain conduct a error Plain review. error fatally pleadings 29.15 White’s Rule may review appeal.” be considered “on facts, inadequate because he fails 8Jf.l3(c). appeal This is not an of White’s true, conclusions, that, if would entitle Rather, appeal conviction. is an him are refut- to relief or because his claims post-conviction proceeding. Our standard of this hold- ed the record. The reason for post-conviction review here is whether the evidentiary ing purpose is clear. The of an “clearly denying in erred” relief in the hearing provide with an is not to movant post-conviction proceeding. Since the issue opportunity produce alleged in facts not post-conviction pro was never raised in the Rather, purpose the motion. is to deter- court, ceeding, plain, error clear or mine if the in the motion are otherwise, is not discernible. failing true. While trial court erred in only possible The basis for consider matter, enter a conclusion of law on one ing the claim is under a claim of ineffective remanding supply single this case to appellate original assistance of counsel in the only missing legal serve to conclusion would appeal to raise an issue which delay finality in this case and further burden plain purposes amounted error. For judicial system claim that is merit- with a discussion, we will assume that the issue is less. raised as a motion to recall the mandate. judgment of the trial court is affirmed. brief, White asserts that he had PRICE, LIMBAUGH, present BENTON, hearing, been at the “could have he ROBERTSON, COVINGTON, JJ., hearing, contributed to the outcome of the outlining for his concur. misconduct However,
had witnessed.” the brief does not WHITE, J., part dissents in concurs actually any set forth that he observed mis- part separate opinion filed. actually conduct or that misconduct oc- WHITE, Judge, concurring curred. hearing part White’s absence from the injustice dissenting part. did not result a manifest or mis- carriage justice, and counsel’s failure to Today majority places important new appeal raise such issue on cannot be charac- evidentiary burdens on those who seek an appellate terized as ineffective assistance of prove ineffective their claims of *17 counsel. This claim is denied. assistance of counsel. I differ with the While majority’s interpretation of law on the the
C. below, my specific points outlined fundamen- finally disagreement majority’s ap- White contends that tal the is with the imposed by deprived proach. majority appears time limits Rule 29.15 to see an The right event, him process evidentiary hearing of his constitutional to due as an unusual one arbitrary capricious justified only and resulted in im compelling that is in the most sentence, position justification of the death in of I in violation circumstances. cannot find prohibition against precedents approach, the constitutional cruel our rules or for this punishment. brings disagree implicit policy and unusual White and I with the choice appeal, having giving claim for the first time on that underlies it. I little harm in see defendant, mis- especially penalty polished pleading. The motion a death defen- the most commas, par- of dant, places misspells the names present chance evidence that his one “eye “eyewitness” wit- and writes as counsel was ineffective. ties majority the sees motion as Yet the ness.” hearings. encourage evidentiary rules Our gamesman- in “clever sophisticated exercise evidentiary may only An be denied case, history ap- ship.” From of this the conclusively the when the record shows that appointed was pears that Mr. counsel White’s is not to relief.1 In the name movant entitled meeting the short concerned about more finality, majority judicial economy of the origi- he faced with when the deadlines was the cannot holds that fact that a 29.15 Mr. post-conviction counsel abandoned nal endlessly be it is a amended means that using he the “subtle than was about White specially pleading. But nowhere disfavored wording” attempt of in an his motion suggest does the rule that the motion is be “sandbag the State.” narrowly pleading. than read more other fact, majority’s comparison game In is opposite Except the for the to a is true. The amended, they may prisoners inapt. limited time which This is not a contest where be giving post-conviction trying are to trick the courts into relief motions to be treat- are exactly hearings and at- filings.2 ed like all civil If Rule frivolous the courts other them judged by ways to ensure tempt up 29.15 motions are to be a different to come with clever standard, they only did hearings the fact that be are held. Mr. "White can that few upon way suggests pleadings in a me case amended limited not seek build his the less, thorough they more, today; he that should be read not found deficient offered a broadly pleadings. than of I motion. types professional other second amended mistakenly majority’s finality, judge that share the interest the But because allowed time, judicial legitimacy, efficiency proceed- of to be of Mr. was filed out present ings. goals strongest But these are claims ill-served not allowed Instead, pleading regime light. forced to that elevates the form of their best finds pleadings proceed over their this case on motions that the Court now substance. As shows, facially arguments procedure inadequate. endless about were swift, just justice as harmful to sure reading pleadings This narrow of the ex- substantive attacks. Credibility prejudice. tends issue testimony espe- eyewitness the claims is the heart When substantive seem majority cially compelling, approach But more con- based on form this case. is formality especially pleading rather than merit than whether substantive cerned with case, support troublesome. defense there is evidence to Mr. White’s entire disagreed theory eyewitnesses on a about who was founded of misidentification. claim that mo- present if the Allegations trial counsel did not do all the house. Even pursue alleged eyewitnesses could to of misidentifi- tion evidence scene, great man at power place cation has to undermine confi- another would holds, majority allegation trial. sufficient dence in the outcome of the In Section opinion, majority Mr. disposes prejudice of its would have been made because II.E. technicality: plead he was claims on the barest the White does also these testimony” people present. If this words of the other use of the “failed adduce one true, I Mr. majority allegation hold cannot see how pleadings. The does not prejudiced. The been Mr. White not identified his coun- could not have has their case particulari- error sufficient built entire sel’s witnesses contradicted, by oth- ty judge try question, been allow a around Rather, identity eyewitnesses, about the purpose pleadings. er prejudice high- proper pleading phrasing. majority As the assailants. focus is *18 every logi- require lights, one foreclose Mr. White’s first amended motion does cally response allegation. to an hurriedly carelessly prepared. possible It is not 29.15(a) (1988). (1988). 29.15(g) 1. 2. Rule Rule 906
trying
weighing
1(E)
of the evidence are what
in
4.Movant’s
claim
of his First
hearing
properly
is for. Mr.
has
Amended Motion that his counsel failed to
placed
performance
his counsel’s
on the
testimony
issue
Kinney
adduce
from Ben
that he
question.
witness identification into
He
Wright
drugs
and Don
sold
for two black
given
should
hearing
any
be
see he has
men
the names of A.J. and Jose be
support
evidence to
his claim.
cause
kill
threatened to
Ben Kin
ney.
obligation
Counsel is under no
to use
I would also
require findings
remand to
impeachment material
that he knows is
and conclusions on all
in
issues raised
improper. Allegations of crimes which
motion.
This Court has
ap-
limited
have not
in
resulted
criminal convictions
pellate
post-conviction
review of
relief mo-
proper
are not
impeachment. See State v.
tions to a determination of whether the fac-
Stephens, 672
(Mo.[App.]1984);
S.W.2d 714
findings
legal
tual
conclusions of the
Coats,
State v.
(Mo.App
119
S.W.2d
clearly
motion court are
erroneous.3 Since
.1984). Also, this
line
cross examination
limited,
has,
the review is so
this Court
because,
would also not
proper
be
it is not
past, required
findings and conclusions
proper to cross examine so as to show
on all issues raised in the motion.4 But
persons
other
had motive for crime [sic]
today,
majority
abandons this rule and
connecting
without evidence
person
other
denies,
sponte,
sua
upon
a claim
which the
Easley,
[sic]. State v.
[sic] to crime
findings
State admits no
or conclusions were
(Mo.
1983);
banc
majority justifies
made. The
by citing
Wynn, (Mo.App.1984).
S.W.2d 862
Barry de-
exception”
“common sense
1(F)
scribed.
findings
That no
6.As
fact need to be
movant’s claim in
in his
entered when there
First
disputes
are no factual
Amended Motion that his counsel
Where,
Barry,
axiomatic.
should have
here and
adduced that his counsel
there
evidentiary hearing,
testimony
has been no
should have
adduced
from Deo-
Barry
exclusively
Raymond
legal
Kinney
issues are
nat
[sic]
ones.
re-
that AJ.
that,
iterated
long standing
perpetrator
the Court’s
was the second
rule
and not mov-
ant,
judgment
post-eonvie-
on a
motion for
not a claim with merit because there
relief,
tion
showing
“‘a mere
is no
recital or statement
affirmative evidence
motion,
that the
files
that AJ. was
and records
connected with this
conclusive-
crime as
”
ly show that
Easley.
mandated in State v.
movant is entitled
to no relief
is insufficient.5 Had the motion court issued Apparently,
crucially deceptive
effect of
motion, files,
the bare conclusion that
phrase
“failed to
quite
adduce” was
lost
and records had showed that Mr. White was
on the motion court. The court also did not
issue,
entitled to no relief on
Barry
find that the
failure to discover con-
clearly
be
I
violated.
cannot see how tradictory eyewitness testimony
resulted
the total silence of the motion court can
Instead,
prejudice.
no
the motion court de-
provide
platform
meaningful ap-
better
clearly
nied
on the
erroneous theo-
pellate
conclusory rulings
review than the
ry
eyewitness testimony placing
a differ-
Barry explicitly forbids.
ent man at the crime scene would not have
eases,
many
rulings
the motion court’s
been allowable because
there was
evi-
conclusory, they
are worse than
clearly
dence that that man was connected with the
Again,
erroneous.
clearly
this is most
majority
shown
crime. The
attempt
does not
in relation to
ruling
and, instead,
the motion court’s
argument
defend this circular
possible testimony
issue
legal
another
substitutes its own
conclusions for those
perpetrator committed the
Barry
crime. On that
of the trial court. The
rule
is that
issue, the motion court
meaningful appellate
found:
review of Rule 29.15
29.150)
3. Rule
Barry,
(quoting
(Mo.
5.
when legal conclusions factual issues. Where LOUIS, The CITY OF ST. substantially from depart so of the trial al., Respondents. et law, similarly frustrat- appellate review ed. No. 79019. for a eloquently wrote Judge Thomas As Missouri, Supreme Court the last time this case unanimous Court Banc. En cases, often in- penalty “[D]eath before us: 25, 1997. Feb. crimes, clouded
volving have become heinous regarding verification and the by arguments Rehearing As Modified on Denial need filing paper 25,1997. work. Missouri courts March paper through this blizzard to see underlying fog the issues
technicalities result, just timely a
so can reach penalty
especially in death cases.”6 and forth between has bounced back
case in order to answer
trial court and this Court questions as whether
entirely peripheral such verify petition a fingerprint is sufficient to
a remedy proper is to correct
and what the grant filing extension.
judge’s mistaken time, eight spent has
In that Leamon White getting
years on death row not what
deserves. Whether Mr. White deserves depends upon speedy trial or a execution
new completely un- question that has remained
explored: Mr. sentenced to die Wright Don
because he tortured killed lawyers more concerned
or because their protecting themselves than
about only way get can the certain
client? The we Mr. we must have before we execute
answer give hearing. him a
White is to majority fully
I in Section III of the concur motion,
opinion. My reading of Mr. White’s
however, adequately that he convinces me question allegations that call into
presents counsel. competence and zeal of his trial the denial respect, I must dissent from
With evidentiary hearing.
of an 1994). White,
6. State v.