O'Neal v. State

• Decision Date: 14 February 1989
• Docket Number: No. 70716,70716
• Citation: 766 S.W.2d 91
• Parties: Robert Earl O'NEAL, Jr., Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 91

766 S.W.2d 91

Robert Earl O'NEAL, Jr., Appellant, v. STATE of Missouri, Respondent.

No. 70716.

Supreme Court of Missouri En Banc.

Feb. 14, 1989.

Rehearing Denied March 14, 1989.

Nancy A. McKerrow, Columbia, for appellant.

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

BILLINGS, Chief Justice.

Appellant Robert Earl O'Neal, Jr., lodged this appeal from the trial court's denial of his post-conviction motion under Rule 27.26 wherein he sought relief from a death sentence for capital murder: State v. O'Neal, 718 S.W.2d 498 (Mo. banc 1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1388, 94 L.Ed.2d 702 (1987). The trial court conducted an evidentiary hearing and made and entered findings of fact, conclusions of law, and entered judgment denying appellant's motion. Affirmed.

Initially, the Court notes that appellant's pro se motion, first amended motion and addendum thereto, alleged grounds consisting of trial errors and approximately a dozen charges that his trial attorney was ineffective--because of various derelictions. The trial judge hearing appellant's motion considered and ruled, adversely to appellant, each asserted ground. Because only two claims of ineffective assistance of counsel have been presented for appellate review in this appeal, appellant's other grounds are deemed abandoned. Herron v. State, 498 S.W.2d 530 (Mo.1973); Camillo v. State, 555 S.W.2d 386 (Mo.App.1977); State v. Crow, 514 S.W.2d 13 (Mo.App.1974).

In Sanders v. State, 738 S.W.2d 856 (Mo. banc 1987), this Court reviewed the applicable rules to guide appellate review of the now common claim of ineffective assistance of counsel in postconviction proceedings. The Court said:

The Sixth Amendment guarantees the right to effective assistance of counsel. And, while this allegation is commonly found in proceedings attacking both guilty pleas and trial convictions, a movant is faced with what has often been called a 'heavy burden'. Jones v. State, 598 S.W.2d 595, 597 (Mo.App.1980). Not only must the movant prove his allegation by a preponderance of the evidence, but the 'heavier burden' arises from a presumption that counsel is competent. See Strickland v. Washington, 466 U.S. 668, 689 [104 S.Ct. 2052, 2065, 80 L.Ed.2d 674] (1984); Seales v. State, 580 S.W.2d In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced. Strickland, 466 U.S. at 687 ; Seales, 580 S.W.2d at 736. A criminal defendant must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim. In reviewing such a claim, courts are not required to consider both prongs; if a defendant fails to satisfy one prong, the court need not consider the other. And, a court need not determine the performance component before examining for prejudice. If it is easier to dispose of the claim on the ground of lack of sufficient prejudice, the reviewing court is free to do so. Strickland, 466 U.S. at 697 (emphasis added).

                733, 735 (Mo. banc 1979).  In determining the issue of ineffective assistance of counsel, the trial court is free to believe or disbelieve evidence--contradicted or undisputed.  See Jones, 598 S.W.2d at 597.   And, appellate review of the trial court's decision in ruling a Rule 27.26 proceeding is expressly 'limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous.'  (Emphasis added.)  Rule 27.26(j); Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984).  Such findings and conclusions are deemed clearly erroneous only if, after a review of the entire record, the appellate court is left with the 'definite and firm impression that a mistake has been made.'  Stokes v. State, 688 S.W.2d 19, 21 (Mo.App.1985)
                

Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

Id.

As to appellant's remaining two points he is faced with the insurmountable obstacle that he presented both points in his direct appeal as trial errors and this Court ruled them against him. And, despite able counsel's efforts in this proceeding, the Court rejects the attempt to convert or transform alleged trial errors in the direct appeal into claims of ineffective assistance of counsel. A Rule 27.26 motion cannot be used as a vehicle for a second appellate review and issues decided in the direct appeal cannot be relitigated in a post-conviction proceeding. Armbruster v. State, 686 S.W.2d 519 (Mo.App.1985). This is true even though the issue is cloaked in a different theory. Choate v. State, 659 S.W.2d 354 (Mo.App.1983).

On direct appeal appellant's main brief assigned 47 points of error and appellant's pro se brief alleged 10 points. The two briefs claimed error in the trial court permitting evidence concerning the Aryan Brotherhood or Aryan Nations Church and also averred error in the trial court's denial of a second psychiatric examination of appellant.

The transcript on direct appeal, and the main and pro se briefs of appellant, clearly show and demonstrate that appellant's trial attorney attempted, albeit unsuccessfully, to keep out testimony and an exhibit concerning the Aryan Brotherhood or Aryan Nations Church, and this Court refused to find error in the admission of such evidence.

Appellant's complaint concerning a second psychiatric examination was the subject of two points in his pro se brief on direct appeal and also ruled adversely to him when the Court's opinion stated:

We have carefully reviewed all the remaining allegations of error made by appellant's counsel and all the remaining allegations set forth in appellant's pro se brief and we find them to be vague, duplicative and totally without merit.

State v. O'Neal, 718 S.W.2d at 503. In addition, the record, transcript, and briefs in the direct appeal, as well as the transcript and briefs in this appeal, reflect (1) appellant's trial attorney sought and obtained a psychiatric examination, and (2) at appellant's request, asked for a second examination. There was no evidence warranting The Court holds that the issues presented by appellant in this appeal are the identical issues considered and rejected in his direct appeal; further, that complaints directed against rulings of the trial judge in the direct appeal cannot be converted into viable theories of ineffective assistance of counsel in this post-conviction proceeding. The Court further observes that even if his two grounds of alleged ineffective assistance of counsel had not been adjudicated in appellant's direct appeal, appellant wholly failed both the performance and prejudice prongs of Strickland and Sanders. Even though a movant in a post-conviction proceeding has a "heavy burden" as to a claim of ineffective assistance of counsel, appellant elected not to testify in the evidentiary hearing below.

the initial examination or a second examination.

The motion court's findings and conclusions, as well as the comments of the Honorable Rex A. Henson, presiding judge at appellant's trial, denying further psychiatric examination are incorporated herein and attached as Appendix A and B. ¹

The findings, conclusions and judgment entered by the Honorable A.J. Seier in the post-conviction proceeding are affirmed.

BLACKMAR, WELLIVER, RENDLEN, HIGGINS, COVINGTON, JJ., and FENNER, Special Judge, concur.

ROBERTSON, J., not sitting.

APPENDIX A

In the Circuit Court of Butler County, Missouri

ROBERT EARL O'NEAL, Movant,

v

STATE OF MISSOURI, Respondent.

Case No. CV187-52CC

FINDINGS OF FACT

On the fifteenth day of January, 1988 came the above case for evidentiary hearing at the Missouri State Penitentiary. Movant was present in person and by his counsel, Gary L. Robbins. The state was represented by Assistant Prosecuting Attorney Patricia S. Joyce. The following findings of fact are hereby made:

1) On March 22, 1985, Movant was convicted of capital murder. The jury imposed a sentence of death and Movant was sentenced on May 14, 1985, by the Circuit Court of Butler County, Missouri.

2) On April 16, 1987, Movant filed a motion for relief under Supreme Court Rule 27.26. Movant alleged that he could not assist in the preparation of the case for trial and could not appreciate the seriousness of the death penalty because of mental disease or defect. An amended motion for relief was filed in August, 1987, an addendum to the motion was subsequently filed in September, 1987.

3) Movant maintained that his trial counsel provided ineffective assistance of counsel in that he failed to investigate witnesses who would have testified that one of Movant's codefendants was not at the scene of the murder as alleged by the state's witnesses. Lloyd Schlup, was the other codefendant who was tried separately and convicted of the same offense and sentenced to death in the Circuit Court of St. Charles County.

Lloyd Schlup was identified by Officer John Maylee and Sergeant Roger Flowers as being involved in the homicide. Movant's defense at trial was that he was acting in self defense when he was attacked by the victim. The testimony of the two prison officers reflected that Lloyd Schlup, Rodnie Stewart and Movant attacked the victim without any provocation while they were being let out for their lunch at housing unit 5-A at the Missouri State Penitentiary.

Lloyd Schlup testified at the trial that he was not involved in the homicide. (T pp O'Neal testified that he was acting alone when he killed Dade in self-defense. The identity of a second coactor would not have assisted in his defense.

683-706) The trial counsel did put forth that trial strategy to impeach the believability of the state's...