Clemmons v. State

• Citation: 785 S.W.2d 524
• Decision Date: 13 March 1990
• Docket Number: No. 71535,71535
• Parties: Eric D. CLEMMONS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 524

785 S.W.2d 524

Eric D. CLEMMONS, Appellant, v. STATE of Missouri, Respondent.

No. 71535.

Supreme Court of Missouri,

En Banc.

March 13, 1990.

Rehearing Denied April 17, 1990.

Henry B. Robertson, Asst. Public Defender, St. Louis, for appellant.

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

HIGGINS, Judge.

Eric Clemmons was convicted by a jury of murder in the first degree in the slaying of a fellow penitentiary inmate; the jury assessed his punishment at death. The trial court entered judgment accordingly; this Court affirmed the judgment on direct appeal. State v. Clemmons, 753 S.W.2d 901 (Mo. banc 1988). Clemmons now appeals from the judgment in denial of his motion to vacate judgment and sentence pursuant to Rule 29.15. Affirmed.

At the outset of this review, the circumstances of this case require a construction and direction to bench and bar with respect to Rule 29.15(f):

Any amended motion shall be verified by movant and shall be filed within thirty days of the date counsel is appointed or the entry of appearance by counsel that is not appointed. The court may extend the time for filing the amended motion for one additional period not to exceed thirty days.

Clemmons moved, pro se, for relief under Rule 29.15, June 27, 1988. The trial court appointed trial counsel for movant June 28, 1988. On August 1, 1988, 34 days after her appointment, counsel requested a 30 day extension of time to file an amended motion. On the same date the trial court extended the time 26 days to August 27, 1988. (August 27, 1988, was a Saturday and the amended motion was filed within the extended time, August 29, 1988. Rule 44.01(a).)

The trial court accorded an evidentiary hearing on all points presented by the pro se and first amended motions; and on February 21, 1989, entered findings of fact and conclusions of law in denial of all such points and allegations.

Arguably, the points presented by the first amended motion were time-barred under the first sentence of Rule 29.15(f) because of the failure to file the amended motion within 30 days of counsel's appointment.

It is at least equally arguable that the first amended motion was timely filed because of the extension granted under the authority given the trial court in the second sentence of Rule 29.15(f).

Because of this ambiguity in Rule 29.15(f) and its application in this case, this Court resolves the resulting dilemma in favor of full review of all points presented by the pro se and first amended motions.

Hereafter, until it may be appropriately amended, Rule 29.15(f) shall be construed and applied as a bar to any amended motion not filed within thirty days of the date counsel is appointed or counsel that is not appointed enters an appearance; and further, the discretion of the trial court to extend the time for one additional period not to exceed thirty days shall be limited to an exercise of that discretion within the thirty day period first above mentioned and limited. The foregoing construction and application shall apply to all motions for post-conviction relief affected by Rule 29.15(f) from and after the publication date of this opinion in West's South Western Reporter series.

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

Ineffective Assistance of Counsel

Clemmons presents numerous allegations of ineffective assistance of trial counsel. The performance of trial counsel is governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show counsel's performance was deficient in that it falls below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. at 2064. Second, the defendant "must show that the deficient performance prejudiced the defense," Id., and that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

Counsel's presentation of the penalty phase of a criminal trial is a matter for professional judgment. Preston v. State, 736 S.W.2d 53, 55 (Mo.App.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 681 (1988). Whether counsel's judgment is good or bad is measured not by the sentence defendant receives, but by whether counsel's advocacy on defendant's behalf was reasonable under the circumstances. Id.

Clemmons charges counsel failed to present mitigating evidence from his stepfather; other family members; his prison work supervisor, Archie Opie; an unidentified correctional officer; and Ruth Fridley a public speaking teacher. The motion court determined that he named only his mother and stepfather as potential character witnesses for the trial and the punishment phases, and that trial counsel made a reasonable decision not to call defendant's stepfather because of his speech impediment. The motion court also found Clemmons's testimony lacked credibility and rejected it, choosing to believe trial counsel's testimony, thus an issue of credibility resolved by the motion court. See Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986).

Counsel has no absolute duty to present mitigating character evidence at the penalty phase of a trial, Jones v. State, 767 S.W.2d 41, 43 (Mo. banc 1989), cert. denied, 493 U.S. 874, 110 S.Ct. 207, 107 L.Ed.2d 160 (1989); counsel has "a duty to make a reasonable investigation of possible mitigating evidence or to make a reasonable decision that such an investigation is unnecessary," Id. In particular, the reasonableness of counsel's decisions depends upon the strategic choices and information provided by defendant. Id.

Clemmons's mother testified during the punishment phase as to his "good character." Thus, the additional character evidence would have been cumulative. Counsel, having presented the testimony of his mother, was under no absolute duty to present additional mitigating evidence. He used sound trial strategy in choosing not to call Clemmons's stepfather. In these circumstances, Clemmons was not prejudiced by the decision not to call the additional witnesses.

Clemmons charges counsel did not seek a psychological evaluation. He does not allege anything that would have alerted counsel to need of a mental evaluation, or that anything significant would have been found during a mental evaluation. The judge who presided at both trial and evidentiary hearing determined Clemmons was competent and that his testimony at the trial and hearing demonstrated he was articulate and aware of the nature of the proceedings and details of the case. The motion court further found Clemmons was able to participate in the preparation of his defense, provide information to his lawyer and participate in decisions. Because Clemmons does not allege or demonstrate how he was prejudiced by the failure of trial counsel to obtain a mental evaluation, trial counsel cannot be deemed "incompetent" under Strickland.

Clemmons charges counsel failed to present evidence of the victim's vile character and reputation for homosexual harassment and extortion. The motion court determined that this evidence was presented by Clemmons, himself.

Clemmons charges counsel failed to contest his role in the first murder for which he was imprisoned in the penitentiary at the time he committed the present murder. He asserts his trial counsel should have argued that his brother inflicted the fatal blows in the first murder because State v. Barnes, 708 S.W.2d 270 (Mo.App.1986), indicates Clemmons's brother, Stanley Barnes, inflicted the fatal blows upon the victim, Todd Weems.

Barnes states that while Clemmons beat Weems with a pipe, lethal blows came from his brother. Id. at 272-73. Clemmons, however, ignores that he was charged with acting with another in the commission of the offense. State v. Clemmons, 682 S.W.2d 843, 845 (Mo.App.1984). In Clemmons's direct appeal, the court determined he inflicted the fatal blows with the pipe. Id. Whether Clemmons or his brother was the direct cause of Weems's death is of no consequence under the charge and submission. Any argument by Clemmons's trial counsel that he did not cause Weems's death ignores that he was responsible for the murder and properly convicted. Trial counsel cannot be deemed ineffective for declining to make a non-meritorious argument.

Clemmons charges counsel failed to rehabilitate eight jurors who were stricken because of expressed opposition to the death penalty. Trial counsel agreed with the trial judge's ruling that each of the eight potential venirepersons had stated unequivocally their opposition to the death penalty. The motion court determined that further effort to rehabilitate these members of the panel appeared unlikely to succeed.

The standard for determining whether a venireperson may be removed for cause during death penalty qualification is whether the venireperson's views "would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " State v. Sloan, 756 S.W.2d 503, 505 (Mo. banc 1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1174, 103 L.Ed.2d 236 (1989), citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985). This determination is not based on a single response but rather on the entire voir dire examination and lies within the trial court's discretion. Absent an abuse of that discretion, the trial court's ruling will not be overturned on...