Deck v. State

Citation68 S.W.3d 418
Decision Date26 February 2002
Docket NumberNo. SC 83237.,SC 83237.
PartiesCarman L. DECK, Appellant, v. STATE of Missouri, Respondent.
CourtUnited States State Supreme Court of Missouri

Melinda K. Pendergraph, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Assistant Atty. Gen., Jefferson City, for Respondent.

LAURA DENVIR STITH, Judge.

Carman L. Deck received two sentences of death for the double homicide of James and Zelma Long. His convictions and sentences for these crimes, and for related convictions for armed criminal action, burglary and robbery, were affirmed on direct appeal, State v. Deck, 994 S.W.2d 527 (Mo. banc 1999), cert. denied, 528 U.S. 1009, 120 S.Ct. 508, 145 L.Ed.2d 393 (1999). He now appeals the denial of his timely-filed Rule 29.15 motion for post-conviction relief based on ineffective assistance of counsel. Because the death penalty was imposed, this Court has jurisdiction. Mo. Const. art. V, sec. 10; Order of June 16, 1988.

Mr. Deck asserts numerous grounds on which he says that his motion for post-conviction relief should be granted as to the penalty phase of his trial. This Court considers his claim that his counsel was ineffective in failing to offer proper mitigation instructions during the penalty phase trial. The Court agrees that this error resulted in prejudice sufficient to entitle him to a new penalty phase trial under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court finds no merit to his claim that he was entitled to a new guilt phase trial and that the time limits for filing his Rule 29.15 motion were unconstitutionally short. Accordingly, the denial of Rule 29.15 relief is reversed as to the penalty phase of the trial, but is affirmed as to the guilt phase of the trial. The case is remanded.

I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts Surrounding Crimes.

On July 6, 1996, Mr. Deck and his sister, Tonia Cummings, executed a scheme to rob James and Zelma Long.1 As nightfall approached, they knocked on the Longs' door and pretended to need directions. Mr. Deck then pulled out a pistol and ordered the Longs to lie face down on their bed and to give him their valuables. They fully complied, even helping the intruders to open the safe and writing them a personal check. As the Longs then lay on the bed, begging for their lives, Mr. Deck paced around the bedroom trying to decide what to do for about ten minutes. At that point, Ms. Cummings ran in and said time was running out. Mr. Deck put the gun to Mr. Long's temple and fired twice, and then put the gun to Mrs. Long's head and fired twice. Later that same day, the police picked up Mr. Deck based on a tip from an informant. Mr. Deck later confessed.

B. Trial Events Concerning Submission of Penalty Phase Mitigation Issues.

After Mr. Deck was found guilty of first-degree murder in the deaths of the Longs and on related crimes, the penalty phase of the trial was held. Mr. Deck presented mitigation evidence from four witnesses regarding his horribly abusive childhood. His aunt testified that his parents separated when he was eight or nine, and he and his three younger siblings went to live with their mother. The house and the children were filthy. Carman's younger brother, Michael, testified that their mother was always off drunk at clubs or with her boyfriends, so Carman would take care of his younger siblings. Sometimes he would even have to go out and find food for them, although he had no money, because they were always hungry and their mother was never there. He would give them baths and play with them, almost like he was their parent. Finally, just before Thanksgiving of 1975, when Carman was ten and his youngest brother two and one-half, his mother abandoned him.

Carman and his brothers lived with his father and his father's girlfriend for awhile, but eventually his father got a new girlfriend who did not want him, and he was placed in foster care. The children were not kept together, and Carman was moved from foster home to foster home. When Carman was 13 or so, he went to live with the Pucketts. Mr. Puckett traveled 800 miles to testify at the trial. He said Carman fit in wonderfully with his family, helping to take care of Mrs. Puckett, who was not able to see, and helping with whatever was asked. Carman had a great relationship with the Puckett children. He told the Pucketts he was afraid to love anymore because if he loves it gets taken away from him. The Pucketts said love was there for him with them and that he could love them, and they tried to adopt him. But, DFS took him away and put him back with his mother, over his protest that "if you take me out of here you're killing me."

Carman's mother continued to abuse him, finally throwing him through a plate glass window. At that point, he was sent to live with other relatives, but lost contact with his siblings. When Carman was in his teens he turned to crime and ended up in prison, but later he and Michael again became close. Michael testified he still loved Carman and trusted Carman with his children.

After the parties finished presenting their evidence in the penalty phase of the trial, the court held an instruction conference. Defense counsel offered two instructions regarding non-statutory circumstances in mitigation of punishment based on MAI-CR3d 313.44A. The court refused both instructions. Defense counsel did not have alternate instructions ready, so new instructions based on MAI-CR3d 313.44A were downloaded from the court's computer and printed. Counsel failed to note that the last two paragraphs of MAI-CR3d 313.44A apparently did not print. In any event, she offered an incomplete version of the downloaded instructions. Proposed Instruction 8 said:

As to Count I, if you unanimously find that the facts and circumstances in aggravation of punishment, taken as a whole, warrant the imposition of a sentence of death upon the defendant, you must then determine whether there are facts or circumstances in mitigation of punishment which are sufficient to outweigh the facts and circumstances in aggravation of punishment. In deciding this question, you may consider all of the evidence presented in both the guilt and the punishment stages of trial.

Proposed Instruction 13 was identical except for its numbering and its reference to Count III rather than to Count I.

The two paragraphs from MAI-CR3d 313.44A that should have been included at the end of Instructions 8 and 13, but were not, would have read:

You shall also consider any (other) facts or circumstances which you find from the evidence in mitigation of punishment.

It is not necessary that all jurors agree upon particular facts and circumstances in mitigation of punishment. If each juror determines that there are facts or circumstances in mitigation of punishment sufficient to outweigh the evidence in aggravation of punishment, then you must return a verdict fixing defendant's punishment at imprisonment for life by the Department of Corrections without eligibility for probation or parole.

MAI-CR3d 313.44A. Defense counsel offered no objections to the omission of these two paragraphs from Instructions 8 and 13 when the court asked for comments or objections on the record with respect to any instruction. The trial court subsequently charged the jury with the incomplete versions of Instructions 8 and 13.

During deliberations, the jury sent the judge a note asking, "[w]hat is the legal definition of mitigating (as in mitigation circumstances)? Instruction 8." The judge responded, "Any legal terms in the instructions that have a `legal' meaning would have been defined for you. Therefore, any terms that you have not had defined for you should be given their ordinary meaning." The jury then sent another note, asking, "Can we have a dictionary?" The judge replied, "No, I'm not permitted to give you one." Counsel for Mr. Deck neither requested that "mitigation" be defined nor objected to the trial court's responses to the jury's requests. The jury fixed punishment at death on both counts.

C. Discovery of Missing Mitigation Language Post-Trial.

Defense counsel did not realize that the final two key paragraphs of MAI-CR3d 313.44A had been omitted until one of her experts pointed it out as she was preparing for the sentencing hearing almost a month after trial. She brought the error to the judge's attention in chambers, before sentencing. The prosecutor conceded that an error had been made, but argued defense counsel committed the error, not the court. Defense counsel accepted responsibility, urged the court not to penalize Mr. Deck for her error and argued that the only recourse was to give Mr. Deck a new penalty phase trial. The court rejected this motion, stating that counsel had an obligation to submit the instructions in proper form and had failed to show the omissions resulted in prejudice.

D. Finding of No Plain Error on Direct Appeal.

On direct appeal, this Court rejected Mr. Deck's claim that it was plain error to omit the last two paragraphs of MAI-CR3d 313.44A from Instructions 8 and 13, stating:

For instructional error to rise to the level of plain error, the trial court must have so misdirected or failed to instruct the jury so that it is apparent that the instructional error affected the verdict.

Deck, 994 S.W.2d at 540 (emphasis added). This definition of plain error is consistent with that in other cases. Although "prejudicial error" is a condition precedent of "plain error," "prejudicial error" does not inevitably rise to the level of "plain error." State v. Miller, 604 S.W.2d 702, 706 (Mo. App. W.D.1980). To show plain error, defendant must show the error so substantially affected his rights that a manifest injustice or a miscarriage of justice would result were the error left uncorrected. Rule 30.20; State v. Winfield, 5 S.W.3d 505, 516 (Mo. banc 1999).

Deck determined that the...

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