Anderson v. State

• Decision Date: 11 June 2013
• Docket Number: No. SC 92101.,SC 92101.
• Citation: 402 S.W.3d 86
• Parties: Terrance L. ANDERSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

402 S.W.3d 86

Terrance L. ANDERSON, Appellant,

v.STATE of Missouri, Respondent.

No. SC 92101.

Supreme Court of Missouri, En Banc.

June 11, 2013.

William J. Swift, Public Defender's Office, Columbia, MO, for Anderson.

Daniel J. McPherson, Attorney General's Office, Jefferson City, MO, for the State.

PATRICIA BRECKENRIDGE, Judge.

Terrance Anderson appeals the judgment overruling his Rule 29.15 motion for post-conviction relief from his sentence of death for first-degree murder. On appeal, Mr. Anderson claims that the judge presiding over his post-conviction proceedings erred in overruling his motion to disqualify the judge for cause because, on the record of the proceedings, a reasonable person would find an appearance of impropriety in the judge's references to extrajudicial information from the foreperson of the jury in Mr. Anderson's first trial and statements indicating that the judge had prejudged issues raised in his post-conviction motion. Mr. Anderson also claims that the court erred in overruling his claims that counsel representing him in the penalty-phase retrial were ineffective for failing to call certain witnesses, failing to make objections during the trial, failing to advise him not to testify, and in failing to challenge his sentence as disproportionate. He further claims that his counsel on direct appeal from his sentence of death was ineffective for failing to challenge Mr. Anderson's sentence as disproportionate. Because the judge's references in the record to extrajudicial information suggest the judge relied on that information in ruling on Mr. Anderson's Rule 29.15 motion, a reasonable person could find an appearance of impropriety. Recusal of the judge is required. The judgment is reversed, and the cause is remanded for the judge to sustain Mr. Anderson's motion for disqualification and for further proceedings thereafter.

Factual and Procedural Background

In 2001, a Cape Girardeau County jury found Mr. Anderson guilty of two counts of first-degree murder for killing Stephen and Debbie Rainwater, the maternal grandparents of his child. For Stephen's murder, the jury recommended Mr. Anderson be sentenced to life in prison without probation or parole. For Debbie's murder, the jury recommended that Mr. Anderson be sentenced to death. The trial court imposed the recommended sentences. This Court affirmed the convictions and sentences on appeal. State v. Anderson, 79 S.W.3d 420 (Mo. banc 2002). Mr. Anderson then filed a Rule 29.15 motion for post-conviction relief, which the circuit court overruled. On appeal, this Court reversed the death sentence for Debbie's murder and remanded the case for a retrial of the penalty phase. Anderson v. State, 196 S.W.3d 28 (Mo. banc 2006). At the penalty-phase retrial, Mr. Anderson again was sentenced to death. He appealed that sentence, and this Court affirmed. State v. Anderson, 306 S.W.3d 529 (Mo. banc 2010).

On July 15, 2010, Mr. Anderson filed a pro seRule 29.15 motion for postconviction relief challenging various aspects of his penalty-phase retrial. On September 3, 2010, Mr. Anderson filed motions requesting that the court order him transported to a medical facility so that he could undergo two medical tests to determine whether he suffered brain damage from the circumstances of his birth and from repeated physical, mental, and emotional abuse as a child. The judge assigned to hear this Rule 29.15 motion had presided over Mr. Anderson's first trial, his first Rule 29.15 motion hearing, and the penalty-phase retrial. As part of this Rule 29.15 proceeding, the judge heard the motions to transport on September 13, 2010.

At the beginning of the hearing regarding the motions to transport, the state announced that it did not object to the court sustaining the motions. The court then stated, “Well, haven't we been down this road before?” Defense counsel responded that the requested tests, an MRI and an EEG, never had been performed on Mr. Anderson although recommended by a psychiatrist and neurologist at the time of the first trial. Counsel informed the court that the doctors still have the same recommendation; in fact, the psychiatrist recommended the requested testing at the time of the sentencing retrial. Counsel noted that Mr. Anderson's counsel in the penalty-phase retrial did not present any mental health evidence. The motion court then said, “It seems to me that that was so discredited [at] the first [trial], that it was not necessary to put it on the second time.”

Mr. Anderson's counsel responded that there was no way to know whether the mental health evidence was discredited because the jury in the first trial was not polled about why they did not give Mr. Anderson a life sentence for the murder of Debbie Rainwater. Counsel stated that mental health evidence was admitted only in the guilt phase of the trial in which Mr. Anderson was found guilty of the two murders and that there was no objective evidence to support the mental health evidence presented. Counsel also stated that counsel wanted to investigate the evidence for its relevance to mitigation in the penalty-phase retrial.

The motion court stated:

I can only speak about a conversation I had with the foreperson of the first jury, giving me his insight on the matter. He's no longer alive, however.... I think basically his point was pretty well trashed, and they didn't believe him. That's just off the record conversation long after it happened.

Counsel argued that Mr. Anderson may have suffered brain damage from the circumstances of his birth, his mother's history of epilepsy, and prior neurological testing showing abnormalities. Despite counsel for the state's prior statement that he did not object to the court sustaining the motions to transport, the motion court inquired whether the state objected to an order to transport for testing. Counsel said, “The State doesn't buy any of it” but was not objecting to the defense attempting to develop evidence. The motion court stated that it did not “buy any of it, either” but would sustain the motions in an abundance of caution to avoid it from becoming an issue later.

On October 18, 2010, Mr. Anderson filed his amended Rule 29.15 motion challenging the death sentence he received at the penalty-phase retrial. The amended motion included the claim that his counsel at the penalty-phase retrial provided ineffective assistance because they failed to call Dr. Lewis, a psychiatrist, and Dr. William Holcomb, a neurologist, as expert witnesses to testify about statutory and non-statutory mitigation. One week later, Mr. Anderson filed a motion to disqualify the motion judge from presiding over his Rule 29.15 proceeding. He asserted the court's comments, both on and off the record at the September 13 hearing, suggested that the court had prejudged the mental health evidence and could not be fair and impartial. He alleged that in an off-the-record conversation at the September 13 hearing, the motion court handed Mr. Anderson's counsel and the state's attorney copies of a 2004 New Yorker article about Dr. Dorothy Lewis, the psychiatrist Mr. Anderson called to testify in Mr. Anderson's first trial regarding his mental health issues. He further alleged that that the motion court stated, off the record, that the 2004 New Yorker article showed Dr. Lewis was a “frequent flyer” with the Missouri public defender system and was “not believable.”

The motion court heard the motion to disqualify. At the hearing, Mr. Anderson's counsel argued that the court's statements on and off the record supported Mr. Anderson's claim that the motion court had prejudged the mental health evidence and, in doing so, was relying on the court's extrajudicial conversations with the jury foreperson from the first trial. In explaining his prior conversation with the foreperson of the jury in Mr. Anderson's first trial, the motion court stated:

Well, the only point I was trying to make was that it appeared from the comments of the foreperson of the jury that the use of Ms. Lewis or Dr. Lewis, I should say, was ineffective. That was a decision made by the jury, not by the Court. Frankly, I agree with what they thought, but that doesn't mean I can't listen to what Dr. Lewis has to say at sometime in the future and decide if it's appropriate then. I had the impression, in all candor, that the jury wasn't impressed by the psychiatric evidence on either side, but that's the conversations sometime past. The fellow who was the foreperson of the jury was a member of the church that I attend, and from time to time he would just ask what the status of the case was and made some comments from time to time. He was just curious and interested what all was going on. He's, as I said, is [sic] since deceased. I think my conversations with him were pretty well limited to that. People made comments from time to time about what their impressions were, and those were his impressions, and I'm not sure if he's speaking for the jury or not. He purported to be, but I'll just take it for his value alone. I am going to deny the motion.

Thereafter, the judge presided over the evidentiary hearing on Mr. Anderson's Rule 29.15 motion and overruled the motion. During the hearing, Mr. Anderson's counsel in the direct appeal of his penalty-phase retrial was questioned about Mr. Anderson receiving the death penalty for the murder of Debbie Rainwater and a sentence to life without parole for the murder of Stephen Rainwater. At the end of the questioning, the motion court referenced his conversations with the jury foreperson in the first trial. The judge stated that he was curious as to the reason the jury recommended one death sentence and one life sentence. He said the jury foreperson explained that the jury did not recommend death for Stephen Rainwater's murder but did for Debbie Rainwater's murder because the jury was offended that “the grandmother, Debbie, was holding the baby at the time she was killed,...