Wilkins v. State

WILKINS, Appellant, Heath A. Missouri, Respondent.

STATE of

No. 71936. Missouri,

Supreme Court of

En Banc.

Jan. 1991.

Rehearing Denied 1991. Feb. Kentucky U.S. S.Ct.

ford (1989). 106 L.Ed.2d 306 He now presenting seeks relief four points alleged teen error. operative facts of the crime 409, 411-412, found in 736 detailing Wilkins’ vicious conduct which when cou- pled with other relevant evidence warrant- ed the sentence of death. The record dis- pursuant prearranged plan closes that to a accomplice defendant and an murdered the helpless Nancy victim Allen. She was accomplice killed when seized thrust his knife into her back. Defen- aiming dant said he was kidneys, at the thought which he would be a fatal wound.

Nancy Allen fell face down onto the However, floor. spread- she rolled into a eagled position with her back on the accomplice] floor. Stevens could not [the everything find that he wanted to take operate and could not register. the cash Nancy He asked defendant what to do. replied, directing Allen Stevens to what sought he but this caused defendant to helpless stab victim three more times pierced her chest. Two of these her speak, begging heart. She continued to for her life. Defendant silenced her with neck, four into stabs one of which O’Brien, Sean D. City, appel- Kansas for opened artery. the carotid lant. Nancy pierced As Allen’s heart oozed Webster, Atty. Gen., William L. John M. opened its life’s blood into the cavities of Morris, Gen., Atty. Asst. City, floor, Jefferson lungs her and onto the respondent. gathered up and Stevens cash and mer- chandise and left the store. Defendant

RENDLEN, Judge. wiped fingerprints off the door handle leaving. They before stuffed the stolen Appeal hearing from the court’s denial of bag Nancy items in the outside and left. defendant’s Rule 24.035 motion. We af- lay dying Allen on the floor. firm. 736 S.W.2d at 412.

Defendant was sentenced to death for 10, 1985, defendant, Nancy August the murder of Allen the rob On then 16 bery Avondale, years age, of a convenience store in was arrested with his accom- Missouri. The plices City, conviction and sentence in Kansas weeks about two Wilkins, following were affirmed the murder. He was taken to the police S.W.2d 409 and reaffirmed advised of his station where Supreme in the rights presence United States Court. and in the of his mother Stan 1. Defendant's case was consolidated with Stan- sentenced to death. Kentucky, involving a case also a minor ford 802 S.W.2d —12 juvenile hearing interrogated by

and a officer was was conducted before the Honora- police McFarland in the Court officer. Defendant confessed his ble Glennon Circuit Clay County to determine defendant’s part describing in the crimes in detail the competency at the time of the act as well planning robbery execution of both competency to trial. The first as his stand and murder. witness, Mandracchia, unequivo- Dr. stated August On Mr. Fred Duchardt of the of mental cally “there was no evidence Clay County Public Defender’s Office was by Chapter or defect as defined disease appointed August defense counsel and on of the revised statutes of the state of Mis- conducted in a certification “competent souri” and that defendant was court to determine whether exam- proceed.” Dr. Mandracchia had defendant should stand trial as an adult. learning that he re- ined defendant before The evidence included defendant’s medical position plead his and intended to versed pursuant to and records and penalty. and the death How- guilty seek 211.071, Supp.1984, RSMo the court certi- § ever, being on advised of that defendant could be tried as an fied intention, changed remained Mandracchia adult. testified, opinion and “I don’t of the same charged by On October defendant was any psychological or intel- feel that he has murder, degree arm- information with first cognitive capa- on his lectual or limitations a ed criminal action and unlawful use of witness, Dr. Lo- The next W.S. bilities.” Duchardt, Represented by defen- weapon. Psychiatry and at gan, director of Law Clay in arraigned dant was circuit court of defendant Menninger, who examined plea of County on October 17 and entered a March, state whether he felt declined to guilty by reason men- guilty not or “not of proceed tri- competent to to defendant was excluding responsibili- tal disease or defect al; rather, aver- he testified defendant had charges. judge The circuit ty” to all three charges age intelligence, understood the of defendant ordered a mental examination him, possible pleas array of Mental Health by the Western Missouri him, and open range punishment, to of conducted a Dr. Ste- Center which was attorney. Logan, cooperate with his could November 27. Man- ven Mandracchia on however, pro- opined that defendant was containing the of reports dracchia’s results and ceeding several errors of fact under were filed with the circuit his examination thought and had not acting impulsively following shortly court month decisions. through consequences of his an defendant obtained additional thereafter that defendant suf- Though Logan testified expense. mental examination at his impairment from some “emotional fered later, defendant confided to his acting necessarily Sometime where he would be his he wished to withdraw attorney interests,” he characterized his own best pleas guilty of pleas guilty, of not enter very pur- of the crime as “the execution sentence for charges and seek the death deliberate, very planned all very well poseful, Nancy Allen. Defendant’s murder of making] ef- numerous ... [with from his realiza- apparently grew detection, showing decision he to avoid forts against him was the evidence tion that ...” wrongfulness of it appreciated the expe- overwhelming appears it also hearing, the court the close of the At Most remorse for his acts. rienced some defendant was determined that experience in various prior his importantly point, Duchardt and at that to stand trial death would him that institutions convinced had asked that defendant the court advised firm mind- he harbored a preferable as de- and allow him withdraw as counsel the rest of his against incarceration for set Du- pro se because proceed fendant life. seeking the him in not aid chardt would questioned de- The court penalty. exam- defendant was death In March of education, under- age, his Foun- as to Menninger at the fendant expense at his ined counsel, his standing right his that examination the results of dation and record is waiving counsel. a motives April. April On available became replete with the court’s Judge and counsels’ care- avail. McFarland warned defendant ful, complete appraisal and detailed pleaded guilty of de- that if he degree to first right counsel, fendant’s to and the “very probably” need for murder the court would centering with discussions on his sentence him to death. situation Defendant ac- gravity and the knowledged that he understood Judge crimes. this and only refusing requi- McFarland then did the court conduct the rule defendant’s mo- site se, prefatory acceptance tion to waive examination proceed pro counsel and guilty plea. examination, continued allowing the cause range Defendant stated he opportunity further knew reconsider. pleas, punishments rights to which he April On hearings resumed and was entitled and asserted he had not been again the question- court conducted careful by anyone influenced else in his decision. ing of lengthy defendant and in a conversa- Going further, he described the crimes and him emphasized to coun- part in their commission. The court sel and the benefits of such service. De- accepted pleas charges, to all fendant nevertheless executed written including degree; murder the first how- counsel, waivers of RSMo § ever, he informed defendant that should he again inquired length mak- change his mind and wish to withdraw his ing absolutely sure that defendant under- guilty pleas before the scheduled June 27 range punishment stood the for each sentencing hearing, the court would consid- crime. Further he informed defendant that er request. such The court’s last words to any if at time he wished the service of hearing defendant during at this were that counsel he be immediately would accommo- the next month if or so he wished to be dated and Mr. Duchardt was directed to represented, the appoint court would an remain in the courtroom to act in an adviso- attorney respond- for him. The defendant ry capacity if defendant any questions had ed that he rights. understood his or decided to allow Duchardt to once more sentencing hearing, At the June 27 de- represent him. Additionally, the court at- appeared fendant present with Duchardt in tempted to dissuade informing defendant the advisory courtroom still his role. him he felt the plead guilty decision to and again The court recommended that defen- penalty one; seek the death poor was a accept dant Duchardt’s services as counsel stressing repeatedly the seriousness of de- Judge but defendant declined and McFar- actions, fendant’s intended the court em- land assessed the maximum sentences for phasized point by describing the hor- degree the lesser crimes. As to the first rors dying by gas. lethal Defendant charge, murder the court first reiterated acknowledged concerns, the court’s but right that defendant had the to remain stood fast in his decision and the cause was trial, penalty phase silent at this had continued, again this time May until with right jury stage right to a at this and a Judge urging McFarland defendant to re- encouraged him counsel and to reconsider. “fully” consider and think about his deci- responded Defendant that he understood sion. all rights. this but wished to waive such April prior plea hearing, On to the The then court offered defendant one last brought defendant was before the court plea guilty chance to withdraw his given and the and plea waiver forms degree again first murder and defendant charges. for all three Defendant resolute- informing declined the court he wished to ly repeated his announced intention to proceed previously as stated. plead guilty and waive his by to trial including Evidence was taken defen- jury. incriminating given dant’s statements 9,May the again 10, 1985, On came police August the on the testimo- present husband, Allen, before the court with Duchardt in ny of the victim’s Robert counsel, “standby” his role as and the with persons several who had had contact again encouraged during stays defendant to ac- the defendant his at various counsel, centers, cept testimony Duchardt as juvenile his but to no of Doc- this Logan. report tors Mandracchia and Parwatikar’s was filed with Considera- portions stating ble of defendant’s records that defendant suffered from Court kept incompe- offered were out him a mental disorder which made objections him- Rights sustained of the defendant his tent “to waive Constitutional attempted self. Then defendant called and represent himself front of Stevens, testimony to elicit of Patrick al- [cjourt.” report further stated that leged by accomplice in the defendant as an competent to aid and the defendant was However, robbery. Stevens asserted any attorney may be cooperate with who right against Fifth Amendment self-incrim- information, him. appointed for On ination refused to defendant’s answer appointed, new appellate counsel was closing In questions. comments to argu- were and new oral briefs submitted court, the defendant stated wished ments heard. court to consider all the harm he had done after the decision of this Court Sometime preferred the fact that he death as September affirming the conviction against imprisonment. sentence, position changed. assessing the The court entered its order 28th, 1988, filed in cir- On June punishment at death for the murder of pro court his Rule 24.035 motion cuit se determining Nancy Allen. relief. This motion seeking postconviction warranted, penalty death the court August again first on 28 and was amended following aggravating circum- found the 16, 1989, fifty- May filing of a on One, the murder in the stances: “Number A on the amended page motion. the De- degree first was committed while by Judge McFar- was conducted motions perpetration engaged fendant was 22-26, period May and con- land and, Two, felony robbery, of Number the 5, 1989, the defen- cluding in which on June degree in involved the murder the first who testified con- dant called five doctors depravity of mind and that as a result cerning competence. outrageously wantonly witnesses, thereof it was Mr. Duchardt and presented two vile, horrible, or inhuman.” transcript of this Dr. Mandracchia. The thousand almost one proceeding contains appeal his steps took no Defendant pages of exhibits pages and more than 600 sentences, on its own however this Court defen- July the court denied and on the State Public Defender motion directed appeal This followed. Our dant’s motions. amicus curiae and brief to enter the case as of is limited to a determination review purview the of this Court’s all issues within findings and hearing court’s whether 565.035.1, reviewing power under RSMo § Rule clearly erroneous. conclusions are 3, 1986, defendant and October 1986. On 24.035(j). ap- attorneys the amicus curiae for At the conclu- peared this Court. before fourteen The first of defendant’s by arguments the State sion of Duchardt, acting as while points is that Mr. attorneys, defendant ad- curiae amicus pro certification juvenile in the his counsel several taking issue with dressed the Court by assistance provided ineffective ceedings, comments, public defenders’ of Proce mental evaluation. requesting a that defendant was it was stated which raising from durally, defendant is barred crime, at the the time of the incompetent at effective juvenile counsel’s the issue of his hearings. De- trial and at the time of the State, 442 ness. This Court Jefferson competent at all he was fendant stated (Mo.1969), that a defendant held S.W.2d 6 to seek rational decision and made a times jurisdic from the who has been transferred crime. penalty for his the death court of to a juvenile court tion of pro juvenile general law attack defendant be that This ordered Court circuit motion in the ceedings by either a Malcom of the by Dr. Parwatikar examined informa requesting dismissal if court determine Mental Health Center Bliss juvenile to the seeking a remand tion or competent to waive 12. Fail- hearing. Id. at proper Dr. court for a December appeal. On counsel on ure so to do complete Indeed, constitutes a only pleaded waiver defendant not any objection juvenile proceed- to the degree actively sought to first murder but ings. Id. acting the death sentence. He was not under some mistaken belief or misunder- Abbott, In State v. 654 S.W.2d 260 standing by representa- caused Duchardt’s App.1983), appeal defendant on direct chal- Further, allegation tion. defendant’s lenged the effectiveness of counsel before request failure by a mental examination juvenile court in a RSMo § juvenile court constituted ineffective proceeding, which resulted defen- assistance of counsel is note meritless. We dant’s certification for trial as an adult. testimony from the Rule 24.035 hear- charged Defendant that counsel had a ing juvenile showed that the court had be- “conflict of interest” which denied defen- complete fore it the documentation of de- adequate representation dant full and previous fendant’s institutionalization and the certification but the court of psychiatric various reports medical and on appeals point dismissed the for defendant’s juvenile was, the defendant. The objections failure to juve- raise his to the reports from its consideration of these proceedings court; nile before the trial documents, past aware men- such failure constituted a waiver those problems. tal request Failure to a mental complaints. applies This bar whether the juncture examination at this cannot said seeking defendant is raise the defects rising to indicate conduct to a level of inef- appeal direct or in proceedings. Richard- fectiveness which subverted defendant’s State, (Mo.1977).2 son v. 555 S.W.2d rights. constitutional Further, applies it alleged constitutional claims, State, Ford v. 112- Defendant next asserts his convic (Mo.App.1976), and to a minor defen- process and sentence violates due dant who objection waives to the rights secured under the United States and court adjudication suitability prose- Missouri constitutions and is violative of cution subsequent voluntary plea of Eighth prohibition Amendment’s guilty in the criminal court. Haliburton v. punishment cruel and unusual (Mo.App.1981). “incompetent that he was as a matter of law.” On direct Even if review counsel raised the defendant’s claim were preserved consideration, competency for issue of defendant’s to stand it would be unavailing. rejected trial guilty plea, challenge. After a and this Court that counsel’s Wilkins, only effectiveness is v. relevant a motion State 736 S.W.2d at 415. Post- for proceedings relief to the extent it conviction rule are not avail affects the voluntariness of the appel movant’s able as a vehicle to obtain a second plea. State, 722, Troupe v. 766 ap S.W.2d 723 late review of matters raised on direct (Mo.App.1989). requires State, This peal. 515, that the de Arbeiter v. 738 S.W.2d prove fendant performance his counsel’s (Mo.App.1987). Accordingly, 516 this con prejudice was deficient and that resulted tention is denied. deficiency. State, from the Sidebottom v. point alleges Defendant for his third 791, 1989).

781 S.W.2d Prej Duchardt rendered ineffective assistance of by proof udice is shown that but for coun during counsel defendant’s murder trial in errors, unprofessional sel’s there awas testify that he called an adverse witness to probability reasonable the result would defendant; failed to cross-examine have been different. at Id. 796. witness; present this adverse to con- failed Nothing in trary testimony defendant’s briefs or medical toas state; arguments alleged discloses that counsel’s mental abandoned defendant shortcomings trial; before the court af the the court’s object failed to to guilty plea. finding competent fected the voluntariness of his to defendant was Although Richardson a involved Rule 27.26 to motions under Rule 24.035. 2. proceeding, procedural equally applies the bar

proceed; and failed to investigate sequent hearing the law were held accordance pertaining and facts the defendant’s Supp.1985. RSMo Under § competence proceed pro 552.020.2, se. report Mandracchia’s was filed § sixty with the days trial court within fol- noted, previously As for a lowing examination, the the order for on a succeed claim of ineffective assistance 552.020.5, pursuant copies were deliv- § counsel, he must demonstrate that coun- prosecution. ered to the defense performance sel’s was both deficient and purpose equal The provide is to access to Lockhart, prejudicial. Hill v. 474 U.S. testimony refuting establishing or medical (1985). 106 S.Ct. 88 L.Ed.2d defense, Meeks, State v. involving guilty plea, this case a our review 539 (Mo.App.1983), and this access is a is alleged to determine whether counsel’s right. matter of State ex rel. Jordon deficiencies affected the voluntariness of Mehan, (Mo.App.1980). 597 S.W.2d plea. Troupe testimony Mandracchia’s oral was consist- (Mo.App.1989). parties ent with report which the had in alleged The first instance of ineffective hand and had defense counsel not called when, assistance of counsel occurred dur- question prosecu- beyond Mandracchia ing competency hearing, Mandracchia produced him as a would have witness. testified that defendant was point is denied. proceed. subpoint Defendant’s second To address this issue we must reex charges that Duehardt was ineffective setting. At arraignment, amine the cross-examining not Mandracchia as to the plea guilty Duehardt entered not objective testing of basis for his defendant. reason of mental disease or years Some four in the Rule later 24.035 Voicing defect on behalf of defendant. hearing, motion counsel cross-examined his client’s competency concern as to his testing Mandracchia on the basis of proceed, requested Duehardt that he be that he defendant and discovered was un mentally examined. This motion was forgotten aspects aware had several granted and defendant was examined background, including Defendant’s certain Dr. Mandracchia Western Missouri However, as a child. defen hallucinations receipt Mental Health Center. On of Man- again dant prejudice. has failed establish 23, 1985, report, dracchia’s December note competency We that Mandracchia’s defendant’s counsel moved for an addition report all documents used as his lists al mental examination defendant’s ex sources of on defendant and a information pense. granted This too was and the addi review of those items reveals doctor performed by Dr. tional examination was employed very had documents which Menninger At Logan of Foundation. defendant claims that he never read. now competency hearing, Duehardt defendant’s hearing, nearly held At the Rule 24.035 as his called Mandracchia first witness who made, years report four Dr. after the opinion that in his “there was no testified understandably experienced Mandracchia of mental disease or defect as evidence remembering all difficulty some the doc of by Chapter 552 the Revised Stat defined uments for the initial examina he had used he utes of the State of Missouri” and that that cross- tion and it has not been shown had “psychologi felt that the Defendant no of the sort defendant now examination cal, cognitive limitations on intellectual productive. urges have been cross-examination, would On capabilities.” his defendant was stated the suggests Mistakenly, defendant Miller v. crimes plead guilty or not to the State, (Mo.App.1973), con- 79 is S.W.2d charged. Miller, trolling ap- In the court of here. peals attorney who believed decided that an of assist- claim ineffective Defendant’s proceed client to trial any incompetent from his prejudice to disclose ance fails report calling part but failed in to contest Mandracchia. counsel’s action subject that ex- the medical examiner of defendant and the sub- The examination competen- plea. aminer to cross-examination at a This failure is fatal to contention. cy hearing, Troupe had rendered ineffective assist- 766 S.W.2d 723. However, ance of counsel. Id. at 87. two subpoint alleges Defendant’s fourth distinguish factors Miller from the case “abandoning” Duchardt ineffective for There, before us. counsel advised defen- effect, In the trial. de- plead guilty many dant to waive his fendant insists that counsel should some rights; contrast, constitutional Duchardt upon defen- how have forced services consistently counseled defendant’s sympathize dant. We can but with Du- plead guilty wish to and seek the death chardt for the dilemma in he found which Miller, appears sentence. counsel prior himself. Defendant for some months have postconvic- remained silent until the repeatedly to trial had stated he intended as to his reservations concern- plead guilty penalty; and seek the death ing competency, defendant’s while Mr. Du- he insisted that Duchardt aid him in that argued chardt day from the first that he quest attempt plan. and not to thwart his incompetent proceed felt defendant was Duchardt felt he could not aid sought and it was he who a second exami- purpose and a conflict had arisen be- report. nation to refute the Mandracchia attorney tween and client. Counsel’s service to defendant at the com- Defendant asserts that under the petency hearing accepted did not fall below Conduct, Rules of Professional Duchardt norms. duty had a not to his client or at “abandon” sought appoint a minimum should have Defendant next asserts that counsel guardian represent ment of a ad litem to offering was ineffective for not certain tes interest defendant’s after Duchardt timony Logan of Dr. that Defendant was was dismissed as counsel. Several flaws incapable proceeding without counsel. readily apparent are in these assertions. competency hearing Logan At the testified First, Duchardt did not “abandon” his diagnosis as to his of defendant’s mental by moving client to withdraw as counsel. health, give but would not a definitive record, As we read the it was defendant concerning statement compe by pro sought motion who se Duchardt’s However, in Chapter tence as defined 552. removal, emphasized and it must be that if hearing, at the motion Lo not satisfied defendant had a to dis gan testified he found defendant defini Fewel, charge lawyer. Allen v. tively incompetent proceed as his own (banc 1935). Mo. counsel. Defendant now asserts this later Defendant could not have been forced to piece of evidence should have been elicited. accept representation. Duchardt’s Again defendant fails to demonstrate a Thomas, (Mo.1981). nexus between counsel’s action and the vol- guilty plea. Additionally, untariness of his Duchardt the term “abandon” con- nearly walking attempting complete devoted four months notes a withdrawal or away turn defendant from the the client course he deter from the client without having opportunity mined to take. Defendant himself a reasonable to obtain advised Mr. him did not court that Duchardt informed the service of other counsel. Such pleas, punishments of and defens occur in this case. Even after defendant available es, repeatedly attempted by and had to dis insisted he dismissed Duchardt di- be suade him from his intended action. Mr. rection of the court remained available stage performed properly every proceed- Duchardt as counsel3 Defendant at of the ings present in courtroom and defendant fails to state how his con and was the peri- “standby” throughout During or counsel the trial. interim duct either as active ods, to assist de- affected the voluntariness of defendant’s Duchardt was accessible discussed, "standby” previously act as counsel should 3. As Duchardt was re- have had and quested by representa- change the court to remain the courtroom defendant his mind and wish stages trial and to be all of defendant’s counsel. any questions available for that defendant any legal question. Appar- plead fendant upon have had defendant’s resolve to ently defendant availed himself of this ser- guilty? argument In neither brief nor does by contacting vice Duchardt on several oc- suggest ques- an answer to that and, penalty phase, casions in the defen- tion. upon speak dant called Duchardt to on his subpoint For his fifth evidentiary behalf and to handle certain alleges that counsel was ineffective for not objections that defendant wished to make. objecting finding that to the court’s the prece- Mr. role Duchardt’s is not without competent proceed defendant was to tri closely dent and the situation in resembles chronology belying a tale this al. The tells Rollie, (Mo.App. State v. 585 S.W.2d 78 represented defen assertion. Duchardt appointment where the court held of through immediately dant the legal appropriate. such a “assistant” was ruling on the heels of the that defendant

Id. at 85. proceed, he the advised Next, of Rules Professional client and court of the hiatus between require lawyer that “a shall Conduct ... counsel. Defendant confirmed that he no representation of a withdraw from the longer Duchardt to serve as his wanted if lawyer discharged.” client ... is attorney after much discussion and 1.16(a)(3). Further, Rules the Comments to repeated suggestions by the court for de provide this rule that in cases where the reconsider, finally fendant court mentally incompetent, attorney client is ruled that Duchardt was off the team and special help “should make effort assigned “standby” role of counsel. to the and, in consequences client consider the an prerogative longer was no his to act as case, may proceedings extreme initiate objections make or otherwise counsel and conservatorship protection or similar a proceedings except participate those the client.” Defendant conceded Duchardt request. might it defendant’s While withdrew at his insistence and the defen lodged could have argued that defendant complaint regard spurious. is dant’s this ruling before he objection an to the court Further, noteworthy readily how cur it is removed, prejudice resulted from no in rent counsel for defendant with casual inability failure or so to do because patent inconsistency, difference to his own appeal preserved and raised on point was Duchardt for in one breath berates aban ruling competence affirmed in the next chastises doning defendant and denied. The contention is this Court. ap withdrawing. him As to the for not guardian equivalent its pointment of a alleges subpoint Defendant’s last defen suggestion ignores this the fact that in ineffective for not that Duchardt was cir aegis then within the dant was pertaining to vestigating or facts the law court, mental was at issue cuit condition competence proceed pro se. that tribu ongoing proceeding before an support the assertion The record does not personally and defendant nal. The issue not research this area that counsel did jurisdiction of the court subject to the were failed to meet defendant has the law and jurisdiction and in that general original 24.035(h). If proof. Rule the burden of had “comment” to the rule situation the true, de unsupported allegation were ex Duchardt could not be little relevance. might how it have has not shown fendant defiantly flout the circuit pected to of his the voluntariness affected juris attempt to invoke proceeding and at 723. plea. Troupe v. division or to some probate diction of that Duchardt prove has failed Defendant judge appoint the circuit require how legal assistance viola- ineffective rendered the evidence nor Neither guardian. rights. of his constitutional tive such a case accommodates posture of the alleges that he next Defendant repeated Further, was Defendant notion. Fourteenth his Sixth and deprived of was court not to by counsel and the ly advised Defendant’s in that rights Amendment penalty. the death guilty and seek plead knowing, intelli- not counsel was guardian waiver of could a must ask what effect We gent, voluntary. and appeal, ap- self-representation. On direct choose Faretta v. Cal pellate ifornia, counsel asserted: 95 S.Ct. at 2541. “The trial court finding appellant erred in competent pro- to postconviction hearing, de failing ceed and in separate to make a plethora fendant called a con witnesses finding appellant’s as to competence to cerning competency his to waive counsel waive his right constitutional counsel proceed pro and se. The called Dr. trial,” jury and to a this because the evi- who, discussed, previously Mandracchia as dence “ap- was “insufficient” and because examined defendant and testified at trial to pellate’s competence to waive constitutional competence proceed. As herein- rights noted, competency ap was not an issue at the above Mandracchia had been prised hearing point plead that defendant had decided to ...” The ruled was penalty and seek the death but main the Court in the direct review competent tained he was nevertheless and accordingly is barred from considera- proceed “I and concluded don’t feel that he proceeding. the Rule 24.035 Arbeit- any psychological cog has or intellectual or State, er v. though S.W.2d 516. Even capabilities.” nitive limitations on his But point was ruled on direct re- “surprised” Mandracchia the State in the view, pro- posteonviction hearing by joining ceeding frames issue in dif- somewhat professional stating other witnesses and language, ferent tangentially asserting de- defendant was not to waive his fendant right was denied his to counsel constitutional proceed counsel and because his “knowingly, “waiver” was not pro hearing se. The court determined that voluntarily or intelligently made” for the the testimony of defendant’s witnesses as “appellant reason that mentally was incom- “unpersuasive” well as Mandracchia was petent proceed as his own counsel.” responsibility and it the court’s to de The trial court entertained this current ver- credibility termine the of witnesses and sion of defendant’s assertion as an issue weigh the evidence. See Eddes v. review, not foreclosed the direct and (Mo.App.1989). The appears while he doing to have erred in so may reject any testimony witness’ we are loathe to willingness condemn his though contrary no evidence is offered. permit defendant opportunity for fur- Id. ther on competency issue and transcripts original post- and shall examine the record to determine if his proceedings experi- conviction reveal an findings clearly were erroneous. judge cautiously enced trial who and care- fully presented. dealt with the issues We are mindful that an effec judgment, There was no rush to indeed the tive waiver counsel must voluntarily, be replete record is with his studied refusal to knowingly executed, intelligently Far proceed step from one to the next until all California, etta v. 422 U.S. 95 S.Ct. questions possi- resolved in were so far as 2525, 2541, (1975), 45 L.Ed.2d 562 protective measures ble invoked to se- depends test “in each upon partic case rights. protracted cure defendant’s In the ular facts and surrounding circumstances discussed, proceedings Judge hereinbefore case, including background, experi any perhaps person McFarland more than ence, and conduct of the accused.” Ed favorably positioned to understand de- Arizona, wards v. 451 U.S. 101 S.Ct. fendant and evaluate evidence. He had 1880, 1884, (1981). Here, 68 L.Ed.2d 378 ample opportunity to observe defendant defendant, possessed grade of a ninth edu and learn the innermost reason for his deci- cation, average was found to be intelli sion to waive This counsel. observation gence throughout demonstrated a cred and oral examination of defendant could competence handling ible level of ignored necessarily and was taken case. In this connection a defendant need into assessing competen- account when experience not have the skills and of a cy aof defendant to waive counsel. Ed- lawyer competently intelligently Arizona, wards v. 101 S.Ct. at 1884.

502

Judge repeated reargue ruling McFarland’s detailed ex- the trial of defen- court’s planation right to defendant of his to coun- competence proceed dant’s to and accord- sel, advantages accepting the appointed of ingly is denied. counsel, gravity the waiving of counsel and Similarly, defendant’s assertion of charges against the seriousness of the de- incompetence investigation to waive and fendant period extended over a two-month presentation mitigating of evidence throughout resolutely and stated penalty phase finding fail. The the must counsel, appointed pro- his desire to waive proceed that defendant was to se, pro plead guilty. ceed and meaning to trial carries the that defendant counsel, Waiving defendant executed the is “to assist in his own defense.” able waiver form in accordance with § 552.020.1, finding A of com RSMo 1986. § 1986, accepting RSMo and before the waiv- proceed pro se means that petence to the again er the court made sure defendant competency defendant had to “call range punishment, understood the of Howard, defense, State v. his shots” as to counsel, right possible to results from 191, (Mo.App.1984), 195 includ 668 S.W.2d waiving right counsel and defendant’s to a ing mitigating of evidence. introduction

jury trial. regard, prosecution during In this addition, though defendant did not stage penalty offered defendant’s counsel, renounce his waiver of he mani- reports, records and medical but defen cunning, availing fested his himself of the objections evidence dant’s to this was sus “standby” services of counsel when it met past “dredged his tained as he did not want proceedings, purpose. During his de- up” again in court. competence displayed fendant’s was point appeal sixth on is that The many lost on the court whose was police taken defendant’s confession to the counseling hours of conversation taken in at the time of his arrest was special insight gave him Fifth, and Fourteenth violation of the Sixth understanding legal of the factual and is- Amendments to the United States Constitu point is denied. sues. incompetent was to tion because defendant The fifth claim of error is close Arizona, Miranda 384 U.S. waive ly previous point. Defendant related to (1966), 436, 1602, L.Ed.2d 694 86 S.Ct. 16 incompetent plead guilty, he was to asserts rights and Mr. Duchardt was ineffective by jury investigation and waive waive trial seeking suppress that statement. for not presentation mitigating evidence in of point only raised This phase proceedings. penalty of 24.035 motion filed third amended Rule Again, competence note the issue of we 16, 1989, nearly twelve months after May jury raised and ruled waive a trial was 24.035(f) pro pro se filing. initial Rule appeal and is not a adversely on the direct filing sixty limitation for such vides a Ar relief, proper matter for appointment date of the days from the State, 516, beiter v. 788 and a S.W.2d proper Defendant postconviction counsel. plea jury waives the to a trial August amended motion ly filed his first Wyrick, guilt phase. in the 527 Griffith 24, 1988, motion the third amended but Cir.1975). (8th F.2d 112 raising the Miranda objection filed separate would have us Defendant the deadline. than six months after more proceed competence from competence to untimely is waived. contention Defendant’s insepara plea, they in law are enter a when State, Day v. S.W.2d State, Mikel v. See ble. — U.S.—, cert. denied (Mo.App.1977), and Newbold v. 869-870 (1989). S.Ct. 107 L.Ed.2d (Mo.1973). A point on Defendant’s seventh trial is finding competence proceed exceeds his death sentence appeal asserts compe finding that one is tantamount by law and is authorized Id. This is the maximum plea guilty. to enter a tent of the Ex Post Facto Clause by defendant violative simply a further effort 503 3) United States and tially impaired, Missouri Constitutions. the murder com- argues legislature He the Missouri did not mitted while the defendant was under the subject intend young defendants as as influence of extreme mental or emotional sentence, he to by enlarging the death only point Not is defendant’s disturbance. scope of the statute this Court in effect procedurally flawed it misstates the facts. post created an ex facto situation. The point The ninth asserts that defendant’s governing statutes on this matter do not pun- sentence constitutes cruel and unusual bear out defendant’s contention. Section Eighth ishment in of the Amend- violation 211.071, 1986, provides any RSMo that ment of the United States Constitution be- ages child between the of fourteen and juvenile pre- cause defendant is a and a alleged seventeen who is to have commit- sumption sixteen-year- should exist ted an offense which would be considered sufficiently olds eli- culpable are not to be felony by if may committed an adult after gible point for the death. sentence. This appropriate hearing an be “transferred only by has not addressed this been Court jurisdiction of the [from court] Supreme but also the United States general jurisdiction to the court of in Court and each instance this contention prosecuted general under the law.” Under Wilkins, rejected. has been v. 736 State 1986, Section RSMo the crime of (Mo. 1987); S.W.2d 409 banc sub. nom. degree murder the first is a class A 361, 109 Kentucky, v. 492 U.S. Stanford felony possible punishment with a of death. 2969, (1989). S.Ct. 106 L.Ed.2d 306 Defen- credulity It imposition defies to assert that dant not use the rules the death sentence in such cases was not platform relitigate aas issues decided on post intended. An ex facto law is one appeal. v. 738 Arbeiter S.W.2d proscribes which an act criminal not so 516. proscribed when committed or one which enlarges penalty after the violation. point argues For his tenth Davis, 160, (Mo. v. State penalty Missouri’s death scheme is uncon App.1982). At the time of defendant’s aggravating stitutional in that the circum crime, previously provid- the laws as noted “depravity stance of mind” enumerated person age ed years that a fourteen 565.032.2(7), RSMo is unconstitu § subjected general older could be to the tionally vague. point Defendant’s jurisdiction person of a criminal court and a only raised not on direct review and ruled degree tried for first murder could receive him, but when raised a later case punishment as the death The sentence.4 again “depravity found that the Court point is meritless. ap of mind” element is constitutional as complains

Defendant next the trial court plied by Griffin, Missouri courts. v. State weigh mitigation failed to evidence in when (Mo. 756 S.W.2d 489-490 assessing required the death sentence as cert. denied 490 U.S. 109 S.Ct. by 565.030.4(3), again, RSMo 1986. Here (1989). point § is de L.Ed.2d defendant would resurrect an issue decided nied. him

adversely to on direct review. See point The eleventh asserts the Wilkins, 736 S.W.2d at 415. We State inadmissible, incompetent trial court heard now, then, report did filed note as we sentencing and irrelevant evidence at judge the trial states considered presentence in the form of a inves mitigating assessing factors when three tigation report, impact a victim statement 1) age punishment against defendant: Logan, defendant, 2) testimony of Dr. all capacity of the Amendment violation of defendant’s Sixth appreciate criminality defendant to wit right to confront and cross-examine or to conform his conduct to conduct error This claim of trial court requirements of the law was substan- nesses. 565.020.2, only. imprisonment RSMo § has now been amended so life 4. Section 565.020 age punishment persons Supp.1990. for fifteen that younger degree the crime of first murder is appeal Howard, available for consideration on direct cognizable Further, is not App.1984). a relief defendant’s statement State, proceeding. Bevly mitigating v. 778 S.W.2d that “no evidence was received” 297, (Mo.App.1989). 300 simply However we note the trial court is not true. De- position that closely age, history Defendant’s is analo- fendant’s of institutionali- zation, gous to that of history by way defendant State v. his mental came in McMillin, (Mo. 82 testimony S.W.2d banc of the records and defendant complained in which defendant upon of evidence himself has relied for his assertion of introduced sentencing hearing incompetence. goes his mental Defendant presentence investigation a judge consisted of re- on to state that “the as sentencer aware, statement”, consider, port, impact a “victim various not did all of was and including mitigation documents records of defendant’s the relevant evidence disciplinary problems high at was or that school. Id. available at time would through 96. This Court ruled that the admission of have been available a reasonable presentence investigation report investigation.” only is ad- Not does the record 29.07(a) assertion, prove missible reason of Rule false the but defendant impact admission of the “victim statement” fails to enumerate what this “relevant evi- might By failing preju- Maryland, did not run afoul Booth v. 482 dence” be. so no 2529, point is denied. U.S. 107 S.Ct. 96 L.Ed.2d 440 dice is shown and the (1987),in that it was the trial court not the simply a point appeal The thirteenth on is jury which determined the facts and decid- request “pro- its that this Court reconsider punishment. ed Id. this case. Such is portionality of defendant’s sen- review” investiga- presentence The admission of the Though point finally tence. has been report proper prejudice and no appropriate and is not to this determined resulted from the introduction of the victim proceeding, a of cases since the review impact statement. Wilkins, affirmance in v. 736 S.W.2d argues disproportionality.

Defendant next the trial court reveals no by allowing testimony erred in evidence the Finally, defendant contends the 552.015, Logan, privileged of Dr. under §§ hearing judge in not find Rule 24.035 erred 552.015, During RSMo 1986. rights ing that defendant’s constitutional Logan direct examination of in the sentenc- Larry Mr. Harman were violated because ing hearing, turned to defen- the trial court prosecution. participated in defendant’s privi- inquired any if he “waived dant co-prosecutor. a Har- His role was that of might lege you have to not [defendant] represented man seven had Logan] testify.” have this witness [Dr. years juvenile in minor matter and earlier a Defen- responded Defendant that he did. proee- suggests, point is as the State acknowledged privi- had dant waived ap durally consideration as it barred from Evans, 802 lege. v. See State in defendant’s peared for the first time (Mo. 1991). denied. banc Point motion filed several second amended point alleges Defendant’s twelfth his sen- run. filing deadline had months after in that the trial tence is unconstitutional 24.035(f). filing The deadline for Rule See defendant, mentally “a ill permitted cannot mandatory is such motions offender”, to terminate the investi- v. by the trial court. White extended right to defense and waive his gation of his (Mo. 1989); State, banc 779 S.W.2d mitigating This is mere- present evidence. Day point fourth on ly variant of defendant’s 1989). point is denied. Defendant’s compe- Having appeal. found Judgment affirmed. se, proceed pro it to waive counsel and tent follows that defendant HIGGINS, ROBERTSON, defense and de- the shots” as to his

“call COVINGTON, BILLINGS any mitigating evidence he present cline HOLSTEIN, JJ., concur. had at the time. may not have BLACKMAR, C.J., Supreme States separate dissents in The Court of United Missouri, opinion granted certiorari in filed. Wilkins 2896, 101 L.Ed.2d 487 U.S. 108 S.Ct. BLACKMAR, Justice, dissenting. Chief (1988), single point, as to consider a follows: judgment I would and re- reverse penal- infliction of the death Whether the

mand the case for trial issue of on the ty on a child was sixteen at the time who punishment. question of death versus of the crime constitutes cruel and un- imprisonment life has not adversarial- been punishment Eighth and usual under the ly required tried. Such a trial should be in Fourteenth Amendments to the Constitu- any in case which the state seeks to exe- tion of the United States? person cute a who was a at the time I the offense was committed. would only point. It opinion Its dealt with that stand, guilty plea allow the to would but any consideration of did not foreclose our way open leave the for reconsideration of points. other by jury. the of trial waiver State v. Cf successfully argued It cannot that the

Bibb, (Mo. 1985). 702 462 S.W.2d banc point by defendant “waived” the failure appeal. clearly The record shows that he authority It is within our under Rule any right to adversarial de- 24.035(a) tried to waive holding. to make such a That by discharging termination his counsel and pertinent part rule reads as follows: urging him to the trial court to sentence (a) person felony A of a on a convicted death. I not allow him to Since would plea and the delivered to custo- an at the trial waive adversarial dy department of the of corrections who stage, I him to effect a would allow judgment claims that the conviction failing appeal. by waiver Since the ab- imposed sentence violate the constitution determination is a sence of an adversarial or laws of this state or constitution tainting proceeding, entire it is flaw States, of the United that the court im- appropriately considered a Rule 24.035 posing the sentence jurisdic- was without motion. so, im- tion to do or that the sentence posed challenge excess of the maximum I in the do not the statement by sentence authorized re- principal opinion judge’s law seek as to the trial sentencing pursuant painstaking lief in the efforts to make sure that the provisions consequences of of this Rule 24.035. This defendant understood the provides proce- Rule 24.035 that the defen- exclusive his actions. It is manifest time, dant, by person may dure which such seek as of that wanted to be sen- desire, sentencing repeated relief in the He court for the tenced to death. procedure unequivocally articulately, claims before this enumerated. The be- as to governed by fore the trial court is the Court. But it was not his choice appli- Rules of Civil Procedure insofar as whether or not he would be sentenced to Wilkins, Donnelly, p. cable. death. fn. J. responsibility dissenting. Sentencing is the any authority Our is not foreclosed or, waiver, jury if a valid of the there is prior proceedings in this case. The defen- judge. the trial appeal, dant filed no notice of because expressed a Although judge sentence that he then desired. the trial received the only strong predilection toward a death sen- The case came to us because of our pun- statutory responsibility to all death tence before he heard evidence review he exer- public phase, I am confident that initially sentences. We invited the ishment curiae, customary thoroughness in evalu- amicus but cised his defender to file a brief aggra- ating weighing appointed public reconsidered and the evidence then No- public vating mitigating circumstances. defender as counsel. The defender the evidence argue support proposition body undertook to marshal did not sentence, Wilkins, or to might support a life I now advance. 736 which See State (Mo. 1987). argue leniency. As 414 banc the reasons S.W.2d judge findings, vices, trial said in his both the U.S. S.Ct. prosecutor urged (1989). principal opin- the L.Ed.2d 410 Yet the death sentence. The court did not have the ion would allow the defendant to connive of adducing assistance of counsel in the facts destroying life. his own arguments bearing on the death sen- Harmon, In Cruzan Cruzan v. tence. Court I am not sure that a said: absolute, represent himself is and would strong expressed poli- This State has question ability person of a sixteen cy favoring policy life. We believe years old to consequences understand the pre- dictates that we err on the side of counsel, only forego of a decision not but serving life. urge affirmatively. the death sentence do, writing I as I realize that the trial argue But I will not the waiver of court found the defendant counsel I was invalid. would hold that the stand trial. But it would be a mistake to court, juvenile affirmatively when a seeks assume that the issue is free from doubt. penalty, the death of should make use psychological The defendant has a troubled procedure appointing established a history, beginning years when he was ten guardian ad litem or amicus curiae to old, Wilkins, J., p. Donnelly, dissent- present argument against evidence and Parwatikar, ing. Dr. examined the who penalty. Only way death in this can the Court, request defendant at the of this said proper court have the for an foundation “incompetent that he was to waive his con- informed decision. rights represent himself in stitutional requirement Such would be consistent result, ap- front of this Court.” As a we with decisions other areas as well as pointed appellate for him instead of counsel policy. In statutory v. St. Strahler relying on an amicus curiae. How could he Hospital, Luke’s 706 S.W.2d 7 competent waive trial counsel? then be legislature we held that the could court, Logan, Dr. who testified the trial not cause the statute of limitations to run expressed strong reservations about his opinion a minor. The observed as interest, and, at the ability to act in his own follows: hearing, that the defen- said We think defendant’s contention that incapable proceeding without dant was plaintiff not now be heard to com- should Mandracchia, testified in counsel. Dr. who “initiate plain because she was free to competency, post- at the favor of testified plainly ignores the her own suit” disabili- hearing that the defendant was conviction childhood, ties and limitations that famil- right to counsel not to waive his legal system relationships, and our ial proceed pro Thus the state’s own se. years place upon a minor of tender —who witnesses, confronted with the reali- when any understanding if has little choice, of the defendant’s retreated ties complexities legal system ... Our our prior positions. changed Their from their great pride in the fact that society takes testimony simply be brushed should ready remains forever at the the law they unpersua- were aside as basis guard” rights of mi- “jealously the defen- really We should not hold sive. nors .... proba- when he was dant to a choice made 12.

Id. incompetent, question is one bly when consenting to execution. person who I cannot understand how a damage not settle a suit could be could executed for the The defendant unchallenged argu- present an allowed to guilty. pleaded has crime to which he execution. ment in favor of his own 361, 109 Kentucky, 492 U.S. v. Stanford (1989). But let 106 L.Ed.2d 306 S.Ct. minor legislature has decreed that a Our Let there be adversary process work. an her own decision to have cannot make of life im- argument in favor evidence and RSMo 1986. Section abortion. compelling reason There is no prisonment. Reproductive Health Ser- See Webster argue to hold the defendant to a decision unique,

for his own death. The case is

surely will not recur. What harm can allowing

there be a trial? punish-

I would reverse for trial of the phase.

ment Missouri,

STATE of

Plaintiff-Respondent, EVANS,

Terry Defendant-Appellant. EVANS,

Terry Appellant, Lamont Missouri, Respondent.

STATE of

No. 72549. Missouri,

Supreme Court of

En Banc.

Jan. 1991.

Rehearing Denied 1991. Feb.

Case Details

Case Name: Wilkins v. State

Court Name: Supreme Court of Missouri

Date Published: Jan 9, 1991

Citation: 802 S.W.2d 491

Docket Number: 71936

Court Abbreviation: Mo.