Sidebottom v. State

• Decision Date: 12 December 1989
• Docket Number: No. 71460,71460
• Citation: 781 S.W.2d 791
• Parties: Robert T. SIDEBOTTOM, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 791

781 S.W.2d 791

Robert T. SIDEBOTTOM, Appellant, v. STATE of Missouri, Respondent.

No. 71460.

Supreme Court of Missouri,

En Banc.

Dec. 12, 1989.

Rehearing Denied Jan. 10, 1990.

Sean D. O'Brien, Public Defender, David S. Durbin, Appellate Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for respondent.

COVINGTON, Judge.

A jury convicted Robert T. Sidebottom of first degree murder of his grandmother, § 565.020, RSMo 1986, and sentenced him to death. This Court affirmed the conviction. State v. Sidebottom, 753 S.W.2d 915 (Mo. banc 1988). Movant timely filed a pro se motion for post-conviction relief pursuant to Rule 29.15. He alleged ineffective assistance of counsel, illegal detainment by the police, violation of due process of law, and cruel and unusual punishment. Movant's application for extension of time within which to file an amended motion under Rule 29.15 was sustained, and he timely filed his amended motion. The trial court overruled movant's Rule 29.15 motion to vacate. The judgment is affirmed.

Review of the motion court's denial of post-conviction relief is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(j); Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). Findings and conclusions are deemed clearly erroneous only if a full review of the record leaves the appellate court with the definite and firm impression that a mistake has been made. Id. at 695-96.

Movant first contends that the motion court erred in excluding testimony of Barbara Schenkenberg, an attorney experienced in capital murder defense, concerning the effect on the outcome of the trial of alleged deficiencies of defense counsel. Ms. Schenkenberg did not attend the trial.

Over the state's objection, the trial court permitted Ms. Schenkenberg to testify regarding the performance of a reasonably competent attorney in Jackson County handling a death penalty case. Earlier in the evidentiary hearing, movant had presented evidence through the testimony of Dr. William O'Connor, a clinical psychologist, that movant was, and had been at the time of the offense, suffering from a mental disease or defect and, as a consequence of his mental status and his ingestion of chemical substances, movant's capacity was chronically impaired. Dr. R. L. Evans, a psychopharmicist, testified that the substances movant had consumed on the day in question would have influenced movant's ability to control his impulses. Movant's parents testified at the evidentiary hearing regarding movant's childhood. Movant inquired of Ms. Schenkenberg regarding whether the allegedly mitigating evidence, not adduced by counsel at trial, would have affected the outcome in the penalty phase. The state objected on the grounds that such testimony would invade the province of the court and would constitute speculation and conjecture. The trial court allowed Ms. Schenkenberg's opinion testimony as an offer of proof. Ms. Schenkenberg opined that, had the testimony of Dr. O'Connor and Dr. Evans been offered, had the movant's school and military records been offered, and had movant's parents testified, there was a reasonable probability that movant would have received life imprisonment without possibility of parole instead of the death penalty. The motion court sustained the state's objection.

Generally, opinion testimony is not received where the trier of the facts is as capable as the witness of drawing conclusions from the facts proved. Schmitt v. Pierce, 344 S.W.2d 120, 128-29 (Mo. banc 1961) (citations omitted). In Lewis v. State, 623 S.W.2d 562 (Mo.App.1981), the court upheld the trial court's ruling that testimony on adequacy of trial counsel invaded the province of the court, holding that opinion evidence regarding adequacy of trial counsel is admissible only when the trier of fact, "from want of experience or knowledge," is incapable of drawing conclusions from the facts provided. Id. at 563. The Lewis court found that the trial court was as qualified as the witness to form an opinion on trial counsel's competency. Id.

Movant does not suggest on appeal that the motion court was less qualified than the witness to form an opinion on trial counsel's competency. The record clearly reflects that the motion court was at least as qualified as the witness to form an opinion on the question. The motion court did not err in excluding attorney Schenkenberg's proffered opinion testimony.

A number of movant's additional claims relate to ineffective assistance of counsel. To prove a claim of ineffective assistance of counsel, a Rule 29.15 movant must show that counsel's performance was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The deficiency is shown by counsel's acts or omissions which, in light of all the circumstances, were "outside the wide range of professionally competent assistance." Id at 690, 104 S.Ct. at 2065. Movant must also overcome the presumption that counsel's challenged acts or omissions were sound trial strategy. Id., citing, Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955). Counsel is presumed competent. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Prejudice is shown by proof that, but for counsel's unprofessional errors, there was a reasonable probability that the result would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Prejudice is not presumed from a showing of deficient performance of counsel, but must be affirmatively proved. Id. at 693, 104 S.Ct. at 2067. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding, Id.; rather, defendant must show that there is a reasonable probability that, but for the errors by counsel, the fact finder would have had a reasonable doubt respecting punishment. Id. at 694-95, 104 S.Ct. at 2068-2069. If it is simpler to dispose of a claim of ineffectiveness on the ground of lack of sufficient prejudice, that course should be followed. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. "There is no reason for a court ... to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. "The movant has the burden of proving his grounds for relief by a preponderance of the evidence." Rule 29.15(h).

Movant contends that he was denied effective assistance of counsel in that his trial counsel did not object to State's Exhibit 3, a "prisoner data" sheet that referred to a rape and burglary with which movant was not charged. In a related point, movant contends he was denied effective assistance of counsel in that his trial counsel failed to request a mistrial after the jury inquired about the rape and burglary referenced in the exhibit.

The parties stipulated that the exhibit would be admitted into evidence. Neither the state nor movant's counsel realized the exhibit contained evidence of other offenses. One small box on one sheet contained the reference to other crimes, and there were numerous exhibits of which the data sheet was a part. The trial court, prosecution, and defense counsel first became aware of the reference when the jury sent a note to the judge asking if movant "had been convicted of rape + burglary or had just been charged which does not constitute guilt." After conferring with the court and the prosecution, trial counsel decided that the proper remedy was a curative instruction directing the jury not to consider these entries in arriving at their verdict. Appellant suggests that a showing of prejudice is evidenced by the fact that the jury specifically asked about the uses to which the information on the exhibit should be put.

The issue presented by movant is closely related to the first issue considered and rejected in the direct appeal of his case. Issues decided in the direct appeal cannot be relitigated on a theory of ineffective assistance of counsel in a post-conviction proceeding. O'Neal v. State, 766 S.W.2d 91, 92 (Mo. banc 1989). The sole factor which distinguishes the present case from O'Neal is the standard of review on direct appeal; movant claimed plain error in defense counsel's failure to request, and the trial court's failure to grant sua sponte, a mistrial. This Court found no plain error. State v. Sidebottom, 753 S.W.2d at 920.

On the facts of the present case and the law as applied to them, the bases for the Court's finding of no manifest injustice on direct appeal serve now to establish a finding of no prejudice under the Strickland test. On direct appeal, in determining the prejudicial effect of the prisoner data sheet, this Court discussed the factors to be considered in situations in which evidence of other crimes unrelated to the case at trial was admitted. State v. Sidebottom, 753 S.W.2d at 920. The Court found that the trial court acted promptly in directing the jury to disregard the reference to unrelated crimes, that the prosecutor made no attempt to utilize or emphasize the references on the data form, and that the prosecutor made no conscious effort to inject these inferences into evidence. Id. In light of these factors, this Court held that the curative instruction given by the trial court was sufficient.

Under the reasoning applied in confronting the question of plain error on direct appeal, movant fails to show that, but for trial counsel's failure to object and then to request a mistrial, there was a "reasonable probability that the result would have been different." Movant thus fails to satisfy the prejudice prong of the Strickland test. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Movant claims ineffective assistance of counsel in that his trial counsel failed to present an affirmative case in extenuation and mitigation during the penalty phase of the...