791 S.W.2d 403 (Mo. 1990), 72218, Antwine v. State

Docket Nº:72218.
Citation:791 S.W.2d 403
Party Name:Calvert Leon ANTWINE, Appellant, v. STATE of Missouri, Respondent.
Case Date:June 19, 1990
Court:Supreme Court of Missouri

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791 S.W.2d 403 (Mo. 1990)

Calvert Leon ANTWINE, Appellant,


STATE of Missouri, Respondent.

No. 72218.

Supreme Court of Missouri, En Banc.

June 19, 1990

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Rehearing Denied July 31, 1990.

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Susan L. Hogan, Columbia, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Andrea K. Spillars, Asst. Attys. Gen., Jefferson City, for respondent.


A jury convicted Calvert Leon Antwine of first degree robbery, Section 569.020, RSMo 1978, second degree murder, Section 565.004, RSMo 1978, and capital murder, Section 565.001, RSMo 1978. The jury imposed sentences of thirty years imprisonment, life imprisonment, and death, respectively. This Court affirmed the convictions. State v. Antwine, 743 S.W.2d 51 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988). This is an appeal from the trial court's denial of Antwine's motion for post-conviction relief. Rule 29.15. Because this case involves the death penalty, this Court ordered transfer prior to opinion. We have jurisdiction. Mo. Const. art. V., § 10. Affirmed.


The facts of Antwine's crimes are set out in State v. Antwine, 743 S.W.2d 51 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988). We need not repeat them here.

Antwine, the movant, timely filed a pro se motion for post-conviction relief pursuant to Rule 29.15. The motion court granted movant an additional thirty days to file an amended motion; appointed counsel subsequently filed six amended motions. The last five were filed by leave of court, over State objections that they were not timely filed. At the evidentiary hearing, movant and his trial counsel testified and movant presented several other witnesses, including

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three police officers, seven of movant's friends and neighbors, a clinical psychologist, two attorneys and a corrections department caseworker. Though noting that the amended motion was not timely filed, the court "consider[ed] gratuitously the merits of all points raised by the defendant in his sixth amended motion." The court issued findings of fact and conclusions of law and overruled the motion.


Rule 29.15(f) requires that any amended motion "be filed within thirty days of the date counsel is appointed or the entry of appearance by counsel that is not appointed." It also allows the court to "extend the time for filing the amended motion for one additional period not to exceed thirty days." (Emphasis added).

The time limitations of Rule 29.15 are valid and mandatory and place an increased responsibility on the movant, his counsel and the courts to litigate claims promptly. Amrine v. State, 785 S.W.2d 531, 533 (Mo. banc 1990); Sloan v. State, 779 S.W.2d 580, 581 (Mo. banc 1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 776 (1990); Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989). The trial court was without authority to give additional time beyond that provided by Rule 29.15(f) and additional grounds alleged in the untimely motion were procedurally waived. Amrine, 785 S.W.2d at 533; Sloan, 779 S.W.2d at 582; Rule 29.15(d). On appeal, we shall consider only those allegations raised by Antwine in his timely filed motions.


In a post-conviction relief motion, the movant has the burden of proving his grounds for relief by a preponderance of the evidence. Rule 29.15(h). This Court's review of a denial of post-conviction relief is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous. Rule 29.15(j). The 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. Sidebottom v. State, 781 S.W.2d 791, 795 (Mo. banc 1989); Day, 770 S.W.2d at 695-96.

We turn now to consider movant's timely filed claims for relief under Rule 29.15.


Movant's first and third points challenge the submission to the jury of certain instructions relating to the jury's consideration of mitigating circumstances on constitutional grounds. This Court need not consider these points. "[A]n issue which could have been raised on direct appeal, even though it is a constitutional claim, may not be raised in a post-conviction motion, except where fundamental fairness requires otherwise and only in rare and exceptional circumstances." Roberts v. State, 775 S.W.2d 92, 96 (Mo. banc 1989), cert. denied, 494 U.S. 1039, 110 S.Ct. 1506, 108 L.Ed.2d 640 (1990). There are no exceptional circumstances here. The point is denied.


Movant's remaining timely-filed claims focus on the alleged ineffective assistance of his trial counsel. To show that "counsel's assistance was so defective as to require reversal of a conviction or death sentence," movant must show that "counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To show prejudice, movant must show 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. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2065. Movant "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at 689, 104 S.Ct. at 2065.

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During the penalty phase, counsel called movant's brother and one other person to testify on his behalf. In his closing argument, counsel asked the jury to have mercy on the movant. He argued two statutory mitigating circumstances, which were submitted to the jury: no significant history of prior criminal activity by the defendant and defendant's age at the time of the crime. Section 565.012.3(1) and (7), RSMo 1978. Instructions to the jury during the penalty phase also allowed jurors to consider any other evidence in mitigation. Movant nevertheless claims that trial counsel was ineffective because he failed to develop other evidence in mitigation of punishment and failed to request the corresponding jury instructions.

Specifically movant claims that counsel should have introduced evidence and requested instructions for other specific mitigating circumstances, discussion of which follows. Much of the evidence movant claims should have been introduced in the penalty phase had previously been brought to the jury's attention during the guilt phase. However, an attorney, Susan Chapman, who testified as an "expert" witness for movant at the evidentiary hearing, opined that, in light of all the inflammatory evidence the jury had heard, counsel should have emphasized the mitigating evidence in the penalty phase.

Counsel's presentation of the penalty phase of a criminal trial is a matter of professional judgment. Whether that judgment is effective or ineffective is measured by whether the advocacy was reasonable under the circumstances, not by the sentence the defendant receives. Clemmons v. State, 785 S.W.2d 524, 527 (Mo. banc 1990). 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. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. However, counsel's "election not to present mitigating evidence is a tactical choice accorded a strong presumption of correctness ..." Walls v. State, 779 S.W.2d 560, 562 (Mo. banc 1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990). Counsel testified that the penalty phase strategy was to present two good witnesses "who projected enough feelings and emotions ... to sway this jury from sentencing him to the death penalty" rather than jeopardizing his credibility with the jury by presenting evidence inconsistent with movant's self-defense theory.


The first three mitigating circumstances sought by movant are statutory, Section 565.012.3, RSMo 1978, and are circumstances relating to the offense charged.


Movant first claims that counsel should have requested an instruction submitting his victim's participation in the offense as a mitigating circumstance. Section 565.012.3(3), RSMo 1978. Movant testified during the guilt phase that his victim initiated the altercation that led to the victim's death by charging him in the cell and trying to kick him; movant's testimony was thus consistent with his self-defense theory. There was also evidence during the guilt phase that during the original confrontation, before movant and victim were in custody, the victim had a chance to retreat, but chose to continue the altercation. Movant contends that counsel should have requested an instruction submitting the victim's participation in the fatal altercation as a mitigating circumstance.

Movant's contention ignores the jury's complete rejection of his self-defense theory by its guilty verdict. Counsel testified that he chose not to request an instruction contrary to the jury's previous fact-finding because he wanted to "maintain some credibility with the jury." This was sound trial strategy and not ineffective assistance of counsel.


Movant also claims that counsel should have requested an instruction that the jury consider whether the offense was committed while movant was under the influence

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of extreme mental or emotional disturbance. Section 565.012.3(2), RSMo 1978. Movant argues that, although the jury found he did not act in self-defense, there is a reasonable probability that a properly instructed jury could have determined that the events of the day of the crime were so intense and stressful that movant was under the influence of...

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