Nave v. State, 54103

• Decision Date: 19 July 1988
• Docket Number: No. 54103,54103
• Citation: 757 S.W.2d 249
• Parties: Emmett NAVE, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 249

757 S.W.2d 249

Emmett NAVE, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 54103.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 19, 1988.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

Aug. 24, 1988.

Application to Transfer Denied Oct. 18, 1988.

Robert C. Wolfrum, Asst. Public Defender, St. Charles, for movant-appellant.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

CRANDALL, Judge.

Movant, Emmett Nave, appeals from the denial of his Rule 27.26 motion after an evidentiary hearing. We affirm.

Movant was convicted, after a jury trial, of capital murder, robbery in the first degree, three counts of sodomy, and four counts of kidnapping. He was sentenced to death for the capital murder conviction, life imprisonment for the robbery conviction, life imprisonment without eligibility for probation or parole for 30 years for each sodomy conviction, and imprisonment for 30 years for each kidnapping conviction; all sentences were ordered to run consecutively. On appeal, the convictions and sentences were affirmed. State v. Nave, 694 S.W.2d 729 (Mo. banc 1985). Movant then brought this Rule 27.26 ¹ motion which was denied. In movant's first appeal we reversed and remanded with directions to make findings of fact and conclusions of law on all issues presented. Nave v. State, 737 S.W.2d 526 (Mo.App.1987). On remand, the hearing court complied with our directive. We now address movant's appeal on the merits.

For the purpose of this appeal, we summarize the facts of movant's crimes which are set out in detail in State v. Nave, 694 S.W.2d 729, 731-733 (Mo. banc 1985).

In March 1983, movant was paroled from two sentences of life imprisonment which he had received in 1965 for armed robbery and forcible rape. At that time, movant was 43 years of age and had spent approximately twenty-five years in prison. Two conditions of his parole were that he not drink alcoholic beverages and that he attend Alcoholics Anonymous meetings. Movant failed to comply with these conditions.

On November 18, 1983, movant's probation officer informed him that she would recommend that his parole be revoked if he did not conform his conduct to the conditions of his parole. That night movant told his wife he was angry at his probation officer and his drug abuse counselor. He talked about hurting people including his landlord, Mrs. Rolings. Movant had previously complained to Mrs. Rolings regarding the maintenance and parking problems at his apartment.

The next morning, November 19, 1983, movant threatened to kill his wife unless she drove him to the hospital to get drugs. First, however, he told his wife he wanted to talk to the landlord. Movant knocked on Mrs. Rolings' door. When Mrs. Rolings opened her door, movant killed her with a .22 caliber rifle.

Movant and his wife then drove to the hospital where his crime rampage continued. The evidence of movant's subsequent conduct formed the basis for his other convictions. Nave's defense was that he was so drunk that he did not know what he was doing.

On appeal, movant claims he was denied effective assistance of counsel because his trial counsel (1) failed to question witness Richard Beeman so as to make the jury aware that appellant was intoxicated in Beeman's presence on the evening of November 18, 1983; (2) requested consolidation of all counts for trial; and (3) failed to object to the prosecutor's closing argument "that a capital murder life sentence did not mean he would serve that much time." Movant further alleges in his fourth point on appeal that the trial court erred when it held that movant's constitutional rights were not violated when he was sentenced to death.

Appellate review of a Rule 27.26 proceeding is "limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous." Rule 27.26(j); Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984). Only if an appellate court is left with the "definite and firm impression that a mistake has been made" will the findings and conclusions be found clearly erroneous. Stokes v. State, 688 S.W.2d 19, 21 (Mo.App.1985).

A defendant is not entitled to a perfect trial nor to clairvoyant trial counsel. Battle v. State, 674 S.W.2d 179, 181 (Mo.App.1984). A defendant is entitled to an attorney who exercises the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979). In order for movant to prevail on his allegations of ineffective assistance of counsel he must show (1) that his attorney failed to meet this standard and (2) that he was thereby prejudiced. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To prevail on the prejudice prong of the Strickland test, movant must prove that but for his counsel's ineffectiveness a reasonable probability existed that the fact finder would have had a reasonable doubt concerning guilt. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. "Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. The movant must overcome the presumption of trial counsel's competency by a preponderance of the evidence. Rule 27.26(f).

Movant first alleges that the hearing court was clearly erroneous when it held that trial counsel was not ineffective for failing to question a witness, Richard Beeman, ² in such a manner as to make the jury aware that movant had been intoxicated in Beeman's presence on the evening before the crimes. Movant claims Beeman's testimony was essential to the theory of his defense that, because of his drinking prior to committing the offenses, he could not form the required mental state for the offenses. Movant contends that trial counsel's failure to elicit such testimony was due not only to his failure to properly question Beeman at trial but also to his failure to interview Beeman before trial.

At trial, Beeman was questioned regarding movant's intoxication on the evening of November 18, 1983, the day before the alleged crimes. During direct examination, Beeman could not say positively that he had seen movant intoxicated on November 18, 1983. After the trial court sustained the prosecutor's objections to Beeman's testimony because he could not specify the date, defense counsel asked Beeman no further questions.

At the evidentiary hearing on the Rule 27.26 motion, counsel for movant asked Beeman if he remembered an incident in Jefferson City in the fall or winter of 1983 wherein a woman was killed and movant was charged with taking some hostages. Beeman responded that he did remember this incident and that he had seen movant intoxicated on the evening before this incident.

At trial, defense counsel asked Beeman a direct question regarding movant's state of intoxication on a specific date. Beeman was unable to answer. The problem was not trial counsel's question; the problem was Beeman's memory or credibility. Defense counsel cannot be held ineffective merely because different counsel, three years later, was able to formulate a question which elicited the desired response from Beeman.

In addition, evidence that movant was intoxicated the night before the crime does not mean he was intoxicated the morning of the murder, approximately 11 hours later. The time lapse between Beeman's observance of movant's condition and the occurrence of the crimes clearly shows that movant's intoxication on November 18 was collateral to the main issue, which was movant's condition at the time of the commission of the crimes.

The record does not support movant's claim that trial counsel did not interview Beeman before trial. At the 27.26 hearing Beeman was asked if he spoke with trial counsel prior to testifying at trial and he responded that he did not believe so. When asked if he talked to someone who defense counsel employed he responded, "I talked to someone, I couldn't swear that he was employed by the man's attorney." This evidence is equivocal at best and fails to support movant's contention. The motion court was not clearly erroneous for finding that counsel was not ineffective for failing to question Beeman. Movant's first point is denied.

Movant next contends that the hearing court erred by holding that his trial counsel's request to consolidate all counts for trial did not deny him effective assistance of counsel.

In chambers before trial, the judge said the trial would proceed only upon the capital murder count, as the prosecutor had announced at a previous pretrial conference. Defense counsel said he was unaware of this and believed all counts were going to be tried together. Defense counsel asked for a continuance if the trial was to proceed only on the capital murder count because psychiatric evidence he planned to present would encompass all of the counts. The prosecutor indicated he was willing to try all of the counts together because all of his witnesses were available. The prosecutor said he planned to have the victims of the crimes which were committed immediately after the killing testify as to movant's sobriety. Both counsel then stipulated that all counts be tried together. Movant alleged, in his motion, that consolidation resulted in the presentation of evidence which would have been inadmissible and irrelevant if the capital murder charge had been tried alone. The gravamen of movant's second point is that consolidation of all the counts for one trial cannot be considered trial strategy.

Initially, we note that movant did not call defense counsel to testify at the 27.26 hearing to question him on his reasons for requesting a consolidation. Consequently, the only record before the court is the...