Clay v. State
| Decision Date | 11 May 2010 |
| Docket Number | No. WD 70592.,WD 70592. |
| Citation | 310 SW 3d 733 |
| Parties | Carla Kay CLAY, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Timothy J. Forneris, St. Louis, MO, for appellant.
Shaun J. Mackelprang and James B. Farnsworth, Jefferson City, MO, for respondent.
Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
Carla Clay appeals the motion court's judgment denying her Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Clay was found guilty of two counts of first degree murder and sentenced to two terms of life imprisonment without the possibility of parole. Clay contends that the trial court erred in denying her motion for post-conviction relief because trial counsel was ineffective for failing to: (1) object to expert witness testimony; (2) file a motion to sever the two counts of murder in the first degree; and (3) depose Clay's father. We affirm.
On June 8, 2003, police officers received a phone call from Clay's home that a baby was not breathing. When the officers arrived, Clay was crying nearby. Clay told the officers that she had put her son, Randy, to bed the night before and when she checked on him the next morning, she found him lying on his back, arms extended, with a white, twenty-six inch teddy bear lying on top of him. Specifically, the bear's mouth was on Randy's face. The next day, the Child Fatality Review Board (CFRB) ruled the manner of death an accident, determining that the teddy bear had a collapsing nose that could form a three to five inch pocket over the face of the child. At the time of his death, Randy was 2 1/2-months old. Randy's pediatrician, Dr. Sayonara Mato, was out of town at the time of Randy's death and did not participate in the investigation of his death. When Dr. Mato learned of Randy's death, she was suspicious about the circumstances.
One year later, on June 21, 2004, police officers were again called to Clay's home because an infant was not breathing. When the officers arrived at the house, three women were outside and "fairly hysterical." Clay's daughter, Audrey, was limp, her eyes were closed, her skin was pale, her lips were blue, and she had no pulse. Efforts to resuscitate Audrey lasted for almost an hour but failed. Audrey's pediatrician, Dr. Mato, was called to the hospital. Dr. Mato noticed bruising on the bridge and tip of Audrey's nose. A search of the house was conducted and some pacifiers were seized. One green pacifier was still in its packaging. It was determined that Audrey's death was caused by mechanical asphyxia using an object, which obstructed her nose and mouth for a period of time causing lack of oxygen supply to the body and, ultimately, death. At the time of her death, Audrey was 1 1/2-months old.
Approximately one month later, the coroner in Randy's death filed an affidavit to change the manner of death on Randy's death certificate to "homicide." Clay was charged with two counts of first degree murder. After a jury trial, Clay was found guilty of both counts and was sentenced to two terms of life imprisonment without eligibility for probation or parole. Clay's convictions were affirmed by this court on direct appeal. Clay, 225 S.W.3d at 463. Clay filed a Rule 29.15 motion for post-conviction relief. Appointed counsel then filed an amended Rule 29.15 motion. The trial court denied Clay's motion after an evidentiary hearing. Clay appeals.
Our review of the denial of Clay's Rule 29.15 motion is "limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 29.15(k); Peterson v. State, 149 S.W.3d 583, 585 (Mo.App. W.D.2004). "The motion court's findings and conclusions are clearly erroneous if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made." Peterson, 149 S.W.3d at 585.
Clay must prove by a preponderance of the evidence the two-pronged Strickland test in order to establish ineffective assistance of counsel: "(1) that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney; and (2) that Clay was thereby prejudiced." Haskett v. State, 152 S.W.3d 906, 909 (Mo.App. W.D. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). If Clay fails to demonstrate either prong of the Strickland test, her post-conviction motion will be denied. Id.
To establish the performance prong, Clay bears a heavy burden and must overcome a strong presumption that her counsel provided competent assistance. Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002). Clay must demonstrate "`that counsel's representation fell below an objective standard of reasonableness.'" Id. at 426 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). To demonstrate this, Clay "must identify specific acts or omissions of counsel that resulted from unreasonable professional judgment, and the `court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance.'" Id. (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). We judge the reasonableness of counsel's conduct based on the facts of each case. Williams v. State, 205 S.W.3d 300, 305 (Mo.App. W.D.2006).
To establish prejudice, Clay must show that there is a reasonable probability that but for her counsel's ineffectiveness, the result would have been different. Patterson v. State, 110 S.W.3d 896, 900 (Mo.App. W.D.2003). "`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id. (citations omitted). A showing of error that could have a conceivable effect on the outcome is insufficient. Williams, 205 S.W.3d at 305.
In Clay's first point on appeal, Clay argues that the trial court clearly erred in denying post-conviction relief because trial counsel was ineffective for failing to object to Dr. Mato's expert opinion that a teddy bear falling on Randy's face did not explain his death. Clay contends there was insufficient foundation for this opinion because Dr. Mato only saw a photograph of the bear, never physically saw the bear, and did not know its weight or composition. Clay claims this ineffective assistance of counsel prejudiced her because the jury "used the evidence of Dr. Mato's opinion as proof that Randy had to be suffocated because he was sufficiently developed and strong to move his head away from the bear if it has fallen upon him." The essence of Clay's claim is, therefore, that but for the absence of a proper foundation objection, the outcome of her trial would have been different. We disagree.
First, we question whether the specific argument raised on appeal has been preserved. In Clay's motion for post-conviction relief, Clay contends that "counsel failed to object on proper grounds to the admissibility of Dr. Mato's opinion at trial that Randy was of sufficient physiological development that he could have pushed the bear off his face, had it accidently fallen over on him as the defense claimed." Later in the post-conviction motion, Clay contends that trial counsel should have spelled out that Dr. Mato had no information with respect to the weight or composition of the bear to permit such an opinion. The trial court found that Dr. Mato described Randy's progress as excellent and testified that a 2 1/2-month old child should be able to turn its head to either side without trouble. The trial court found that Clay's post-conviction motion mischaracterized Dr. Mato's testimony as claiming Randy could have pushed the bear off of his face. Clay has "reframed" her claim of ineffective assistance of counsel on appeal and now contends that trial counsel failed to sufficiently object to the lack of foundation for Dr. Mato's testimony that Randy was sufficiently developed and strong to move his head away from the bear. The allegation raised on appeal is materially different from the allegation raised in Clay's post-conviction motion. We do not review claims which were not raised in the post-conviction motion. State v. Gray, 926 S.W.2d 29, 34 (Mo.App. W.D.1996).
Even were we to reach the merits of Clay's claim, Clay would be unable to sustain her burden to demonstrate ineffective assistance of counsel. It is true that trial counsel's motion in limine (which claimed Dr. Mato's testimony was speculative) and trial counsel's objection at trial (which referenced the "previously filed motion in limine to lack of foundation") were very general. It is also true that on direct appeal, Clay's claim that there was insufficient foundation for Dr. Mato's testimony was unsuccessful because this court held that the argument raised on appeal that Dr. Mato had never seen the bear and had no knowledge of its weight was not preserved in Clay's trial objection.2 Clay, 225 S.W.3d at 465. Though our finding in Clay might seem to support Clay's claims of ineffective assistance of counsel, to prove ineffective assistance for failing to properly object, Clay must show that the objection would have been meritorious and that the failure to object substantially deprived her of a fair trial. Mitchem v. State, 250 S.W.3d 749, 755 (Mo.App. W.D. 2008). Clay has done neither. Trial counsel is not ineffective for failing to make a nonmeritorious objection. Id. at 755-56. Here, had a specific foundation objection been made at trial, it is unlikely the objection would have been sustained, and/or it is unlikely the foundation necessary to overcome the objection could not have been laid.
Dr. Mato testified in response to cross-examination by Clay's trial counsel that although she had never seen the actual bear involved in Randy's death,3 "I was explained back then you know, the size and the weight of...
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