Deck v. State

• Decision Date: 14 August 2012
• Docket Number: No. SC 91746.,SC 91746.
• Citation: 381 S.W.3d 339
• Parties: Carman L. DECK, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

381 S.W.3d 339

Carman L. DECK, Appellant,
v.
STATE of Missouri, Respondent.

No. SC 91746.

Supreme Court of Missouri,
En Banc.

July 3, 2012.
Rehearing Denied Aug. 14, 2012.

[381 S.W.3d 342]

Jeannie Willibey, Public Defender's Office, Kansas City, for Deck.

Evan J. Buchheim, Attorney General's Office, Jefferson City, for the State.

MARY R. RUSSELL, Judge.

This is the fifth action to come before this Court involving murders committed in 1996 by Carman Deck (“Movant”). Movant filed this Rule 29.15 post-conviction proceeding, asserting that his counsel at the penalty phase of his capital murder trial was ineffective for failing to call certain witnesses and for other alleged deficient performance. He also alleges that the motion court erred in denying his motion for a new trial. This Court finds no error and affirms the denial of Rule 29.15 relief and the denial of Movant's request for a new trial.

I. Background

In February 1998, a jury found Movant guilty of two counts of first-degree murder, two counts of armed criminal action, one count of first-degree robbery, and one count of first-degree burglary for the 1996

[381 S.W.3d 343]

robbery and shooting deaths of James and Zelma Long. He received two death sentences. This Court affirmed those convictions and sentences in State v. Deck, 994 S.W.2d 527 (Mo. banc 1999) (“Deck I ”).¹ Movant filed a motion for post-conviction relief pursuant to Rule 29.15, which was overruled by the circuit court. On appeal, this Court reversed the death sentences but affirmed the findings of guilt for his convictions. Deck v. State, 68 S.W.3d 418 (Mo. banc 2002) (“ Deck II ”). At the penalty phase retrial, he was again sentenced to two death sentences. This Court affirmed the death sentences in State v. Deck, 136 S.W.3d 481 (Mo. banc 2004) (“ Deck III ”), but the United States Supreme Court granted certiorari and found Movant was denied a fair trial because he appeared in shackles in the presence of the jury during the penalty phase without a showing of circumstances that required shackling for the safety of those in the courtroom. See Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). This Court ordered a second penalty phase retrial, and Deck again received two death sentences. This Court affirmed the death sentences. See State v. Deck, 303 S.W.3d 527 (Mo. banc 2010) (“ Deck IV ”). Movant filed a Rule 29.15 motion for post-conviction relief on multiple grounds, claiming that his penalty phase counsel was ineffective for (1) failing to ask specific questions during voir dire, (2) failing to call additional mitigation witnesses, (3) failing to conduct neuropsychological testing on Movant, and (4) failing to object during the cross-examination of Movant's expert and during the prosecutor's closing arguments. The motion court denied Movant post-conviction relief on all points. He now appeals. Movant also asserts that the motion court erred in denying him a new trial because the trial court improperly destroyed the jury questionnaires from his penalty phase hearing.²

II. Standard of review for Rule 29.15

On appeal from the denial of post-conviction relief, the motion court's findings are presumed correct. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). The motion court's judgment will be reversed if it clearly erred in its findings of fact or conclusions of law. Id.;Rule 29.15(k). A clear error is a ruling that leaves the appellate court with a definite and firm impression that a mistake has been made. Id.

III. Ineffective assistance of counsel

To establish ineffective assistance of counsel meriting post-conviction relief, the movant must satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the movant must show that counsel's performance was deficient by falling below an objective standard of reasonableness. Id. at 688, 104 S.Ct. 2052. If counsel's performance was deficient, the movant must then prove that he was prejudiced by counsel's deficiency. Id. at 687, 104 S.Ct. 2052. Prejudice, in the Strickland context, is defined as “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. 2052. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id.

There is a strong presumption that counsel's conduct was reasonable and effective. Id. at 689, 104 S.Ct. 2052. To

[381 S.W.3d 344]

overcome this presumption, the movant must point to specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of effective assistance. Id. at 690, 104 S.Ct. 2052. Further, the choice of one reasonable trial strategy over another is not ineffective assistance. Zink, 278 S.W.3d at 176. Strategic choices made after a thorough investigation of the law and the facts are virtually unchallengeable. Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

A. Penalty phase counsel was not ineffective during voir dire

Movant alleges that penalty phase counsel failed to adequately ask questions of the venire panel to expose potential bias. Specifically, Movant contends that counsel was ineffective for failing to ask the veniremembers “whether they could look at [Movant]'s childhood experience and give that meaningful consideration as a reason to vote against the death penalty.”

When imposing the death penalty, the sentencer must consider the character and record of the defendant and the circumstances of the particular offense. Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). To meet constitutional Eighth and Fourteenth amendment requirements, a death penalty statute cannot preclude consideration of relevant mitigating evidence. Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Further, a sentencer may not, as a matter of law, refuse to consider any relevant mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104, 113–14, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

A juror in a death penalty case may not refuse to consider mitigating evidence outright. Morgan v. Illinois, 504 U.S. 719, 728–29, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). In Morgan, the Supreme Court held that the trial judge's refusal to allow defense counsel to ask the venire panel whether they would automatically vote for death if the defendant was convicted of first-degree murder violated the defendant's right to an impartial jury. Id. at 735–40, 112 S.Ct. 2222. A juror who would automatically impose the death penalty, the Court reasoned, is not an impartial juror, and the Fourteenth Amendment mandates such a juror be removed for cause. Id. at 728–29, 112 S.Ct. 2222. The Court held:

A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.

Id. 729, 112 S.Ct. 2222. Jurors who would automatically vote to impose the death penalty “not only refuse to give such evidence any weight but are also plainly saying that mitigating evidence is not worth their consideration and that they will not consider it.” Id. at 736, 112 S.Ct. 2222.

Movant argues that Morgan prohibits the empaneling of any juror who would not view childhood evidence as a reason to vote against the death penalty. Movant essentially contends that Morgan requires that counsel be permitted to ask the venire panel how certain mitigating evidence

[381 S.W.3d 345]

would impact their deliberations and, further, that counsel was ineffective for failing to do so. Movant's contention is that failing to ask the venire panel during voir dire, “whether they could look at [Movant]'s childhood experience and give that meaningful consideration as a reason to vote against the death penalty ” was a violation of Rule 29.15.

Movant's proposed question is not essential to his effective assistance of counsel, as asking the potential jurors whether they would view Movant's childhood experience as a reason to vote against the death penalty is improper because it asks the potential jurors to commit to the weight they would give the evidence before they hear it. Although the jury is clearly required to consider mitigating evidence in deciding whether to impose the death penalty under Lockett,Eddings, and Morgan, the court and the parties may not inquire as to how such evidence will affect the potential jury's decision. Although a sentencer may not give mitigating evidence no weight by excluding such evidence from consideration, he or she may determine the weight to be given relevant mitigating evidence. Eddings, 455 U.S. at 114–115, 102 S.Ct. 869. Under these facts, counsel's performance was not deficient.

Although the questioning that Movant proposes is improper, exploration of juror biases regarding certain types of evidence is appropriate during voir dire. It is possible that a juror could be biased by the introduction of childhood evidence. The prosecution here adequately explored this possibility when it asked the following question to the venire panel:

And I guess the question I want to ask you is that you'll hear—I anticipate you'll hear some evidence concerning [Movant]'s childhood, his upbringing.

...

Is there anybody here, that if you start hearing evidence about troubled childhoods, things like that, it's going to [a]ffect your ability to be fair in this case, one...