Blankenship v. State

• Decision Date: 20 June 2000
• Citation: 23 S.W.3d 848
• Parties: (Mo.App. E.D. 2000) . Jerome Blankenship, Movant-Appellant, v. State of Missouri, Respondent. Case Number: ED76243 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

23 S.W.3d 848 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Jerome Blankenship, Movant-Appellant, v. State of Missouri, Respondent.

Case Number: ED76243

Missouri Court of Appeals Eastern District

Handdown Date: 06/20/2000

Appeal From: Circuit Court of St. Francois County, Hon. Kenneth W. Pratte

Counsel for Appellant: Amy M. Bartholow

Counsel for Respondent: John Munson Morris III and Shaun J. Mackelprang

Opinion Summary: Blankenship appeals denial of Rule 29.15 post-conviction relief following convictions of involuntary manslaughter and second degree assault.

REVERSED AND REMANDED.

Division Five holds: The trial court erred in overruling movant's Rule 29.15 motion as trial counsel was ineffective. In his opening statement, counsel informed the jury he would be calling an expert witness. He did so even though he had failed to interview this witness prior to trial. After speaking with the expert witness, counsel decided not to call him. He then advised movant to take the stand, even though movant was unprepared to do so. Counsel's performance fell so short of accepted professional standards that the court concludes it probably affected the result.

Opinion Author: Charles B. Blackmar, Sr.J.

Opinion Vote: REVERSED AND REMANDED. Rhodes Russell, C.J., and Crahan, J., concur.

Opinion:

The movant was convicted following a jury trial on one count of involuntary manslaughter, section 565.024 RSMo 1994, and two counts of second degree assault, section 565.060 RSMo 1994. The jury recommended maximum sentences of seven years on each count. Trial counsel filed a timely motion for new trial.

Before the date set for hearing on the motion for new trial and sentencing the movant's trial counsel was indefinitely suspended from practice and he retained another lawyer. The court overruled the motion for new trial and pronounced consecutive sentences aggregating fourteen years. The trial judge noted that there were grounds for claiming that trial counsel had been ineffective. Movant's new counsel then filed notice of appeal and proceeded to brief and argue the appeal. The judgment was affirmed by order and memorandum, State v. Blankenship, 968 S.W.2d 268 (Mo.App. 1998).

The movant then filed a pro se motion under Rule 29.15, asserting that trial counsel was ineffective in several particulars. His counsel on sentencing and appeal filed a timely amended motion¹ and appeared for movant at an evidentiary hearing before a different judge. Several witnesses appeared, including the trial judge. The hearing judge filed findings of fact and conclusions of law overruling the motion. The movant now prosecutes this appeal, represented by new counsel. After reviewing the briefs, the record, and the motion judge's findings and conclusions we are firmly convinced that an error has been made and that there is a reasonable probability that, had the movant's trial counsel performed in accordance with acceptable standards, the result might have been different. We therefore reverse and remand.

The right to counsel as established in the Sixth Amendment and in Article I, Section 18 (a) of the constitution of Missouri, connotes representation by competent counsel. If counsel acts incompetently, and the movant establishes prejudice, the conviction may be set aside in postconviction proceedings. The right to competent counsel applies to counsel retained by the defendant as well as to public defenders and other counsel appointed by the court. Jones v. State, 748 S.W.2d 878 (Mo.App. 1988); Williams v. State, 605 S.W.2d 222 (Mo.App. 1980).

Although the trial date had been set weeks in advance, counsel thought that he had an agreement with the prosecutor that the case would be continued. He foolishly neglected to confirm this understanding with the judge prior to the trial. Apparently relying on the expected continuance, he did not interview the expert witness he had retained prior to trial, but rather represented to the court that he had arranged an interview with this witness for 10 a.m. of the very day on which the trial was scheduled to begin.² The case was set for pretrial hearing at 8:30 a.m. on January 14, 1997, with trial to begin at 9:00 a.m. Counsel did not appear until 9:10 a.m., when he advised the court that he was not prepared for trial and asked for a continuance.

When the court ruled that the trial would proceed, counsel in his opening statement told the jury that he would produce expert witness Tim Finley at the trial to testify on accident reconstruction. He had not recommended that the defendant-movant take the witness stand and had not prepared him as a witness by asking the questions he proposed to ask and testing his response to anticipated questions on cross examination. Counsel did not get in touch with Finley by telephone until after the trial had begun, and soon ascertained in this interview that there were problems in calling Finley as a witness because he would disagree with some points in counsel's hastily evolved theory of the case, and particularly counsel's reliance on two sets of skid marks in support of anticipated testimony that the defendant braked twice.³ Counsel then advised the defendant that his only chance lay in his taking the witness stand, thereby allowing the prosecution to show a previous conviction for driving while intoxicated and a speeding ticket the defendant received earlier on the day of the accident. The defendant's testimony lacked coherence and clarity, and proved highly vulnerable to cross examination. The trial judge was uneasy about counsel's lack of preparation, and characterized his conduct at the trial as "fumbling, stumbling and bumbling." The prosecutor understandably criticized the defense in closing argument for failure to present the expert witness as promised in opening statement. Counsel's conduct at the trial fell far short of the standards a client was entitled to expect from a defense lawyer.

New trials because of deficiencies in counsel's performance do not come easily. The defendant must demonstrate both that counsel's conduct of the trial was inconsistent with prevailing professional standards, and that the defendant was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687 (1984) (expounding a test adopted by the Supreme Court of Missouri in Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987)). The Strickland test imposes on the defendant the burden of proving that there was a "reasonable probability that the result might have been different." The Court also said that prejudice is established by demonstrating that "the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. It is established, furthermore, that prejudice may be established because of errors affecting the sentencing. See Williams v. Taylor, __ U.S. __, 120 S.Ct. 1495 (2000).

The trial judge found that there was no prejudice. The issue of prejudice requires a pure judgment call, and the trial court's finding of fact is not lightly to be set aside. Because of the multiple deficiencies in performance as here demonstrated, nevertheless, we conclude, on the basis of the whole record, that the finding was clearly erroneous and that the defendant should have a new trial.

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