White v. State

WHITE, Judge,

concurring in part and dissenting in part.

Today the majority places important new burdens on those who seek an evidentiary hearing to prove their claims of ineffective assistance of counsel. While I differ with the majority’s interpretation of the law on the specific points outlined below, my fundamental disagreement is with the majority’s approach. The majority appears to see an evidentiary hearing as an unusual event, one that is justified only in the most compelling circumstances. I cannot find justification in our rules or precedents for this approach, and I disagree with the implicit policy choice that underlies it. I see little harm in giving a *905 defendant, especially a death penalty defendant, one chance to present evidence that his counsel was ineffective.

Our rules encourage evidentiary hearings. An evidentiary hearing may only be denied when the record conclusively shows that the movant is not entitled to relief. 1 In the name of judicial economy and finality, the majority holds that the fact that a Rule 29.15 cannot be endlessly amended means that it is a specially disfavored pleading. But nowhere does the rule suggest that the motion is to be read more narrowly than any other pleading. In fact, the opposite is true. Except for the limited time in which they may be amended, post-conviction relief motions are to be treated exactly like all other civil filings. 2 If Rule 29.15 motions are to be judged by a different standard, the fact that they can only be amended in a limited way suggests to me that they should be read more, not less, broadly than other types of pleadings. I share the majority’s interest in the finality, legitimacy, and efficiency of judicial proceedings. But these goals are ill-served by a pleading regime that elevates the form of pleadings over their substance. As this case shows, endless arguments about procedure are just as harmful to swift, sure justice as substantive attacks.

When the substantive claims seem especially compelling, an approach based on form rather than substantive merit is especially troublesome. In this case, the entire defense was founded on a theory of misidentification. Allegations that trial counsel did not do all they could to pursue evidence of misidentifi-cation has great power to undermine confidence in the outcome of the trial. In Section II.E. of its opinion, the majority disposes of these claims on the barest technicality: the use of the words “failed to adduce testimony” in the pleadings. The majority does not hold that Mr. White has not identified his counsel’s alleged error with sufficient particularity to allow a judge to try the question, which is the purpose of the pleadings. Rather, the focus is on phrasing. As the majority highlights, Mr. White’s first amended motion was hurriedly and carelessly prepared. It is not the most polished pleading. The motion misplaces commas, misspells the names of parties and writes “eyewitness” as “eye witness.” Yet the majority sees the motion as a sophisticated exercise in “clever gamesmanship.” From the history of this case, it appears that Mr. White’s appointed counsel was more concerned about meeting the short deadlines he was faced with when the original post-conviction counsel abandoned Mr. White than he was about using the “subtle wording” of his motion in an attempt to “sandbag the State.”

The majority’s comparison to a game is inapt. This is not a contest where prisoners are trying to trick the courts into giving them frivolous hearings and the courts attempt to come up with clever ways to ensure that few hearings are held. Mr. "White did not seek to build his case upon the pleadings found deficient today; he offered a thorough and professional second amended motion. But because a judge mistakenly allowed that motion to be filed out of time, Mr. White was not allowed to present his strongest claims in their best light. Instead, he was forced to proceed on motions that the Court now finds were facially inadequate.

This narrow reading of the pleadings extends to the issue of prejudice. Credibility of the eyewitness testimony is at the heart of this case. But the majority is more concerned with pleading formality than whether there is evidence to support Mr. White’s claim that eyewitnesses disagreed about who was present in the house. Even if the motion properly alleged that eyewitnesses would place another man at the scene, the majority holds, no sufficient allegation of prejudice would have been made because Mr. White does not also plead that he was not one of the other people present. If this allegation were true, I cannot see how Mr. White could not have been prejudiced. The witnesses the State built their entire case around would have been contradicted, by other eyewitnesses, about the identity of the assailants. The proper pleading of prejudice does not require one to foreclose every logically possible response to an allegation. The *906 trying and weighing of the evidence are what the hearing is for. Mr. White has properly placed his counsel’s performance on the issue of witness identification into question. He should be given a hearing to see if he has any evidence to support his claim.

I would also remand to require findings and conclusions on all issues raised in the motion. This Court has properly limited appellate review of post-conviction relief motions to a determination of whether the factual findings and legal conclusions of the motion court are clearly erroneous. 3 Since the review is so limited, this Court has, in the past, required findings and conclusions on all issues raised in the motion. 4 But today, the majority abandons this rule and denies, sua sponte, a claim upon which the State admits no findings or conclusions were made. The majority justifies this by citing the “common sense exception” Barry described. That no findings of fact need to be entered when there are no factual disputes is axiomatic. Where, as here and in Barry, there has been no evidentiary hearing, the issues are exclusively legal ones. Barry reiterated the Court’s long standing rule that, in a judgment on a motion for post-eonvietion relief, “‘a mere recital or statement that the motion, files and records conclusively show that movant is entitled to no relief ” is insufficient. 5 Had the motion court issued the bare conclusion that the motion, files, and records had showed that Mr. White was entitled to no relief on this issue, Barry would clearly be violated. I cannot see how the total silence of the motion court can provide a better platform for meaningful appellate review than the conclusory rulings Barry explicitly forbids.

In many eases, the motion court’s rulings are worse than conclusory, they are clearly erroneous. Again, this is most clearly shown in relation to the motion court’s ruling on the issue of possible testimony that another perpetrator committed the crime. On that issue, the motion court found:

4.Movant’s claim in 1(E) of his First Amended Motion that his counsel failed to adduce testimony from Ben Kinney that he and Don Wright sold drugs for two black men by the names of A.J. and Jose because they had threatened to kill Ben Kinney. Counsel is under no obligation to use impeachment material that he knows is improper. Allegations of crimes which have not resulted in criminal convictions are not proper impeachment. See State v. Stephens, 672 S.W.2d 714 (Mo.[App.]1984); State v. Coats, 668 S.W.2d 119 (Mo.App.1984). Also, this line of cross examination would also not be proper because, it is not proper to cross examine so as to show other persons had motive for crime [sic] without evidence connecting other person [sic] to crime [sic]. State v. Easley, 662 S.W.2d 248 (Mo. banc 1983); State v. Wynn, 666 S.W.2d 862 (Mo.App.1984).

6.As to movant’s claim in 1(F) in his First Amended Motion that his counsel should have adduced that his counsel should have adduced testimony from Deo-nat [sic] and Raymond Kinney that AJ. was the second perpetrator and not mov-ant, is not a claim with merit because there is no showing of any affirmative evidence that AJ. was connected with this crime as mandated in State v. Easley.

Apparently, the crucially deceptive effect of the phrase “failed to adduce” was quite lost on the motion court. The court also did not find that the alleged failure to discover contradictory eyewitness testimony resulted in no prejudice. Instead, the motion court denied a hearing on the clearly erroneous theory that eyewitness testimony placing a different man at the crime scene would not have been allowable because there was no evidence that that man was connected with the crime. The majority does not attempt to defend this circular argument and, instead, substitutes its own legal conclusions for those of the trial court. The rule in Barry is that meaningful appellate review of Rule 29.15 *907 motions is crucially dependent on the entry of legal conclusions by the motion court, even when it has had no opportunity to determine factual issues. Where the legal conclusions of the trial court depart so substantially from the law, appellate review is similarly frustrated.

As Judge Thomas eloquently wrote for a unanimous Court the last time this case was before us: “[D]eath penalty cases, often involving heinous crimes, have become clouded by arguments regarding verification and the filing of paper work. Missouri courts need to see through this blizzard of paper and technicalities that fog the underlying issues so they can reach a just and timely result, especially in death penalty cases.” 6 This case has bounced back and forth between the trial court and this Court in order to answer entirely peripheral questions such as whether a fingerprint is sufficient to verify a petition and what the proper remedy is to correct a judge’s mistaken grant of a filing extension. In that time, Leamon White has spent eight years on death row not getting what he deserves. Whether Mr. White deserves a new trial or a speedy execution depends upon a question that has remained completely unexplored: was Mr. White sentenced to die because he tortured and killed Don Wright or because his lawyers were more concerned about protecting themselves than their client? The only way we can get the certain answer we must have before we execute Mr. White is to give him a hearing.

I concur fully in Section III of the majority opinion. My reading of Mr. White’s motion, however, convinces me that he adequately presents allegations that call into question the competence and zeal of his trial counsel. With respect, I must dissent from the denial of an evidentiary hearing.

. Rule 29.15(g) (1988).

. Rule 29.15(a) (1988).

. Rule 29.150) (1988).

. Rule 29.15(i) (1988); Barry v. State, 850 S.W.2d 348 (Mo. banc 1993).

. Barry, 850 S.W.2d at 350 (quoting Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978), which referred to the "nearly identical provisions" of the previous rule governing post-conviction relief, Rule 27.26).

. State v. White, 873 S.W.2d 590, 594 (Mo. banc 1994).