State v. Twenter

BLACKMAR, Judge,

concurring in part and dissenting in part.

I concur in the portion of the principal opinion vacating the sentence and directing a new trial of the penalty phase. I do not disagree with the conclusion that there is no error in the initial appeal, but cannot vote to affirm the judgment of guilt because I believe that deference to the motion court’s findings requires that the direction of a new trial of both the guilt phase and the penalty phase be affirmed.

The evidence presented a very convincing chain of circumstances pointing to the defendant’s guilt. Yet there are problems and uncertainties. The evidence is purely circumstantial. One unexplained matter is how the defendant, 4 feet 11 inches tall and weighing 110 pounds, could have moved her much heavier mother from the home to a point eight miles distant, through a barbed wire fence, and 55 feet from the nearest road, by herself. If someone else were involved, that person might be the sole murderer. If the defendant committed one or more of the murders with the aid of another person, the jury might take that *646 circumstance into account in assessing deliberation and punishment. (It was not strictly necessary to the state’s case to establish that the killings took place between 10:35 P.M., when “The Jeffersons” aired, and 11:15 P.M., when the defendant met Linda Turner, but I find the time analysis in the principal opinion somewhat less than persuasive.) The case presents aspects which should have been investigated, and the motion judge is well supported in his finding that the defendant did not have the kind of professional help that is appropriate for a case in which the death sentence is sought. Of course any conclusion about the effect of the omissions is speculative, but it cannot be said that a substantial challenge to the state’s chain of circumstances would not affect the result.

The motion court conducted a hearing which produced a transcript of more than 800 pages. The judge then prepared a lengthy memorandum of his findings and conclusions. The memorandum shows that the judge was thoroughly familiar with Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and diligently applied the rule of that case to the evidence. He rejected the great majority of the defendant’s claims of ineffective assistance, but found some nine grounds of ineffectiveness touching both the guilt phase and the penalty phase. I do not believe that his comprehensive findings can be so lightly brushed aside as “clearly erroneous.”

Trial counsel did not even try to meet with members of the defendant’s family, about evidence for the punishment phase or otherwise. He expressed his reasons as follows:

As I remember, that at the time there was — we—we really got conflicting stories as to the relationship between she and her other brothers and sisters. One of the things that concerned me was the fact that they had not, you know, been in constant contact or visited her that much while she was in the Pettis County Jail. And I — I know we talked with one sister. But I — I—I really — I don’t remember.

It is not surprising that the motion judge felt that counsel’s pretrial investigation fell short of the standards that should be expected in a death penalty case. He did not even try to talk to family members to see what they might have to say. He apparently assumed that they knew nothing helpful.

Testimony of family and friends is often adduced at the punishment phase of a capital trial. Here there are substantial indications that the defendant’s natural sisters, Elizabeth Lawson and Norma Wheeler, her stepbrother Joe Coslett, and others who had known her, would have been willing to give testimony that might have helped her. Her counsel did not even bother to find out what they might have to say. That is the essence of his ineffectiveness at the penalty phase. Counsel admitted that he was surprised at the death verdict, and the court reasonably concluded that he had not given the punishment phase the advance consideration it deserved. Counsel testified that his penalty phase strategy consisted of emphasizing what he viewed as the mitigating factors in the case: the defendant’s lack of a criminal record, her emotional troubles due to childhood abuse, and her good relationship with her children. Yet counsel called no family members or close friends, no one who could verify the defendant’s story of childhood abuse, and no one who had seen the defendant interact with her children outside of counseling sessions. He hastily collected as witnesses only a psychological counselor who had seen the defendant several years earlier about problems with her children, a minister serving as jail chaplain who visited her occasionally, and the defendant. The case for finding ineffective assistance at the penalty phase is much stronger than was shown in Kenley v. Armontrout, 937 F.2d 1298 (8th Cir.1991).

Had counsel spoken with Lawson and Wheeler it is quite possible that he could have discovered evidence that would be helpful at the guilt phase also. Some of the most damaging testimony against the defendant was furnished by her stepsisters, Anna Laas and Clara Denker, each of whom said that she had overheard a telephone call in which the defendant said that both her father and her mother had been shot, at a time when only her father’s body had been discovered. The testimony of *647 Wheeler and Lawson could have impeached Denker because she told them, long before the trial, that she was not in the room when the defendant made the call. The principal opinion seeks to excuse counsel’s omission on the ground that counsel had no advance notice that the sisters would provide this impeaching information. But counsel’s plain duty obliged him to conduct interviews in some depth with family members, and to probe the details of the family gathering following discovery of the father’s body. The motion judge reasonably concluded that, had counsel done this, he would have obtained this valuable information. The effect of impeaching one of the two witnesses on a vital point is patent. Nor is it realistic, in a circumstantial case, to say that failure to obtain impeaching evidence may be considered only if it would produce a "viable defense.” Anything tending to undermine a key circumstance would be important.

Failure to produce impeaching evidence may support a finding of ineffectiveness. 1 The cases listed in the principal opinion as to what must be shown in order to support a finding of ineffectiveness for failure to produce impeaching evidence are not appropriately cited, because all involve situations in which the trial court’s findings of fact were sustained. They were not intended to circumscribe the authority of the trier of the fact to consider the entire record in determining whether counsel met prevailing standards of competence. The motion judge’s finding of ineffectiveness in this respect is clearly supported by the evidence. The Court simply substitutes its judgment for his.

The same fault appears in the casual dismissal of the trial court’s finding that counsel should have interviewed Mike Turner face to face. Turner shared a residence with the defendant (although his romantic involvements were apparently with others). He was the other party to the significant telephone call, and so his testimony would not be simply impeaching. He was close with his information when questioned by the police, but this is not surprising. He testified at the postconviction hearing that he feared he was a suspect and was very nervous. He also testified that the defendant arrived home at approximately 11:00 on the night of the murders, and denied that she told him on the phone that both her parents were dead. He stated that he did not tell counsel that he could not recall the conversation, but that, “I remembered the phone conversation. There was no problem remembering that.” The motion judge credited Turner’s testimony. The principal opinion usurps this determination of credibility and adopts counsel’s characterization of Turner as “evasive” even though the motion judge found Turner not incredible. Even if Turner was uninformative over the telephone, counsel foreclosed any possibility of finding out further information when he limited himself to the telephone conversation. Any experienced lawyer knows that witnesses who are tight-lipped when interviewed casually or by telephone sometimes open up in a face-to-face interview with a skilled interviewer. There was a clear basis for concluding that Turner was a witness at the center of the scene who should have been spoken to directly. It is not appropriate to defend counsel by saying that there was no assurance that Turner would give different information in an interview, or that his information would likely change the result of the trial. The point is that counsel made no effort to get the information, and so was unable to make an informed strategic or tactical decision.

The motion judge faulted counsel for not pursuing information about Mr. Wells’ “fencing” activities. Interviews with family members might very well have yielded helpful information. Counsel’s duly in a circumstantial case is to suggest that others might have motives to commit the crime charged, and trial judges usually give counsel substantial leeway. The hackneyed cry of “red herring” 2 is not an ade *648 quate answer to counsel’s failure to investigate further. Nor am I prepared to believe that the somewhat casual and imprecise statement in State v. Turner, 623 S.W.2d 4 (Mo. banc 1981) was designed to overrule the carefully considered holdings of Sutter v. Easterly, 354 Mo. 282 , 189 S.W.2d 284, 290 (Mo.1945) and Osborne v. Purdome, 250 S.W.2d 159, 163 (Mo.1952). Turner is adequately explained under the trial court’s discretion to exclude evidence which is utterly lacking in probative value, and also by the absence of evidence of unavailability of the declarant. If corroboration is needed, repeated declarations should be adequate to supply it. To assert that counsel cannot be ineffective for failing to offer inadmissible evidence misses the point. Counsel was ineffective for failing to investigate the leads his client gave him. Counsel did not give the trial court the opportunity to rule on the evidence.

Other points in which the trial court found inadequacy provide further support for the finding of lack of diligence in investigation. Counsel described Robert Fox as a witness he would very much like to talk to. The motion judge found that Fox was readily available during the period immediately following the killings. The presence of a man with a gun in the victims’ driveway should have been a circumstance of interest to counsel facing the task of defending Virginia Twenter. The circumstance of Fox’s changing his story so as to have seen the armed man the evening before the murders does not destroy the usefulness of the testimony. Any recent stalking of Wells would have been of interest to the jury. Fox’s statement to the police, given shortly after the murders, would have been admissible in evidence had he been called, and seems to be much more credible than his later testimony. Had the motion court found no indicia of incompetence in failing to interview or to produce Fox its finding would undoubtedly be affirmed, but the evidence did not mandate such a finding.

The motion court found incompetence in the failure to provide an expert witness about the shoeprints. This was not the fault of trial counsel, who wanted the expert, but of the public defender system, which refused to provide the necessary funds. Counsel is furnished by this system, and so delinquencies in the system may be the basis for a finding of incompetence. The suggestion that this point should be raised as a part of the initial appeal is hypertechnical, and unsound under our decisions, for both the initial appeal and the PCR appeal are now before the Court. We invite presentation in this manner by holding that points touching competence of counsel cannot be raised in the initial appeal under any circumstances, and that Rule 29.15 is exclusive as a method for arguing incompetence. State v. Wheat, 775 S.W.2d 155 (Mo. banc 1989). 3 Nor is it a sufficient answer to say that there is no evidence about what the hypothetical expert would say. No expert has apparently been furnished for the posttrial proceedings and so it would be impossible to present an offer which meets the standards of the principal opinion. The fault lies in denying defense counsel the opportunity to consult with the expert in the preparation of the case. See Little v. Armontrout, 835 F.2d 1240 (1987), cert, denied 487 U.S. 1210 , 108 S.Ct. 2857 , 101 L.Ed.2d 894 (1988).

A word is appropriate about the failure of the defendant’s initially appointed counsel to provide assistance after the preliminary hearing, and the delay in providing trial counsel, so that the defendant did not see trial counsel until at least four months after she was incarcerated. Initial counsel’s attitude was described by a representative of the state public defender’s office as “hostile and uncooperative.” He said that he would function at the preliminary hearing, at which he did not propose to introduce evidence, 4 and would do nothing more. The defendant indicated two possible witnesses in Warrensburg, identified as Robert Arnell and Steve. They apparently did not have deep roots in the Warrensburg or Sedalia areas, and trial counsel probably *649 did as much as he could to find them. Maybe they do not exist. Maybe the defendant never went to Warrensburg. But, if such witnesses are to be found at all, they should be sought promptly. Robert Pox, also, might have been located and secured as a witness by prompt investigation. We cannot be proud of a system which does not make counsel available promptly to pursue the leads the imprisoned capital defendant provides.

The pervasive fault in the principal opinion is that it attacks each separate item of the motion judge’s finding of incompetence, considers that item in isolation, concludes that it is not sufficient to justify the abortion of the trial on the merits, and therefore pronounces the decision “clearly erroneous.” The transcript and the motion judge’s findings show a lack of diligence of counsel in failing to secure the information necessary to support an informed judgment. The very repetition of the instances of failure to pursue leads supports the finding. The trier of fact is entitled to form a judgment from the whole record, which we should be loath to displace.

What has just been said applies with all the greater force to a circumstantial case. Just as the circumstances relied on by the prosecution should not be viewed in isolation, so the defense must have reasonable latitude in countering the prosecution and in presenting circumstances which may raise doubts. The motion court is clearly supported in concluding that defense counsel was remiss in his search for circumstances which might possibly be helpful.

Criminal defendants are entitled to effective counsel. We provide a posttrial procedure in which new counsel are appointed. It is always a temptation for appellate judges to think that a circuit judge, or a jury, is clearly erroneous in findings and conclusions, simply because the writer of the opinion would have decided the facts otherwise. But we should resist that temptation. It is for the motion court, and not for us, to resolve doubts about the evidence. The principal opinion departs from the recent holding in State v. Wells, 804 S.W.2d 746 (Mo. banc 1991), that a single failure to produce just one significant piece of evidence may support a finding of ineffectiveness. This case sends the wrong signal to trial judges in postconviction proceedings, by indicating that their conclusions, if favorable to the defendant, will face exhaustive appellate scrutiny. It stands out in sharp contrast to Wilson v. State, 813 S.W.2d 833 (Mo. banc 1991), in which this Court rubber-stamped the post-conviction judge’s findings and conclusions, in spite of infirmities apparent on the face.

I would affirm the order of the 29.15 court and would remand for a new trial of the guilt and the penalty phases.

. Bonner v. State, 765 S.W.2d 286, 288 (Mo.App.1988); Trimble v. State, 693 S.W.2d 267, 271-75 (Mo.App.1985).

. A red herring is a dried fish which is dragged across a fox’s trail in order to confuse hunting dogs. Diversion is a part of the adversary process.

. A very unwise decision, in my opinion, which should be overruled as soon as possible.

. I do not fault this decision, which accords with prevailing practice.