Dees v. State, 15158
| Decision Date | 20 May 1988 |
| Docket Number | No. 15158,15158 |
| Parties | John DEES, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Michael A. Gross, St. Louis, for movant-appellant.
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found movant John F. Dees guilty of first degree burglary, § 569.160, and forcible rape, § 566.030.1. It assessed his punishment for burglary at imprisonment for 10 years and for rape at imprisonment for 35 years. He was sentenced accordingly. The sentences were ordered to run concurrently. His convictions were affirmed on appeal. State v. Dees, 639 S.W.2d 149 (Mo.App.1982).
In this proceeding, movant seeks to set aside those convictions and sentences by a motion filed under Rule 27.26. His basic contention is that his trial counsel was ineffective because he did not adequately investigate the possibility of obtaining an expert witness to counter shoeprint comparison testimony that placed him at the scene of the offenses.
An extensive outline of the trial evidence is found in the opinion affirming movant's convictions. State v. Dees, supra. A synopsis of that evidence to provide an understanding of the issues in this proceeding is as follows.
The victim awoke in the early morning hours of November 26, 1980, to see a man standing over her. The intruder forced her down the stairs of her apartment to a small bathroom where the rape occurred. The victim was unable to see the man's face. She was unable to identify movant as her assailant. She did give the authorities a general description of him, including his height and weight, the color of his hair and that he had a mustache. She did not observe a beard. However, when her assailant was bent over her she could see only the top part of his face. She saw that he was wearing a dark stocking cap pulled down close to his eyebrows. The victim's 12-year-old son sleeping in the same room was also awakened. He "played possum." He gave a similar description, but said the intruder had a mustache and a beard.
The assailant left tracks of mud and pieces of mud in the victim's apartment, including the bathroom. A fresh piece of mud was found in the vicinity with the imprint "TRAX". A nearby apartment had also been burglarized the night in question. There was a shoeprint in the mud near that apartment. A plaster cast impression was made of this print. Photographs were made of it.
The movant was arrested in his apartment at approximately 10:00 p.m. on December 12, 1980. At the time of his arrest he admitted everything in the apartment was his except some red gym shorts and Hustler magazines that belonged to his brother Paul. A pair of tennis shoes in his apartment were seized at that time. The shoes were basically blue in color, with red and light brown trim. A dark blue stocking cap was found in his truck.
Dr. Robert Briner was the Director of the Southeast Missouri Regional Crime Laboratory. Evidence in the case was submitted to him for analysis. His testimony included the following.
Approximately 85% of the population are secretors whose bodily fluids may be analyzed and their blood type determined. Approximately 40% of the population has blood type A. An examination of seminal fluid obtained from panties of the victim showed her assailant had blood type A. Dees has blood type A. The victim had blood type O.
Dr. Briner made a comparison examination of the tennis shoes and the pieces of mud, the cast of the print and photographs of the print. However, he stated that he did not primarily rely upon the cast of the print. He explained that the plaster cast did not pick up detail as adequately as the photographs. He said, however, the cast did show the overall class characteristics. He identified five points of individual comparison between the photograph of the shoeprint and the right TRAX shoe taken from Dees' apartment. He also identified eight points of individual comparison between the imprint TRAX and that shoe. He demonstrated that a jigsaw shaped piece of mud from the victim's bathroom fit into the bottom of that shoe. An analysis revealed that green paint on that piece of mud and green paint on the shoe were the "same overall composition." Microscopic comparison of that mud chip demonstrated it had been made by the shoe.
Movant John Dees testified. He denied he committed the burglary or the rape. He testified that he spent the night those crimes were committed with his girlfriend Regina in her apartment. He explained that he was a sign painter. He customarily wore his cowboy boots to work. There he changed into a pair of tennis shoes. His employer identified a second pair of tennis shoes which were found at Dees' place of employment on May 19, 1981. These were not the shoes seized at his apartment. Dees said he had owned these shoes about one year.
Dees further explained that his place of employment was moved between November 25, 1980, and December 12, 1980. During the moving process he found another pair of tennis shoes in a backroom of the initial location of the sign business. He took these shoes for his use. He wore them while painting. He added that the first time he used green paint was on December 11, 1980. The only time he wore the found pair of tennis shoes home was December 12, 1980, the day he was arrested and those shoes were seized. During the trial, the prosecuting attorney had Dees try on the right shoe that was seized at his apartment. When he did, he complained that the shoe was a little small.
Dees further testified that he went home from work at noon on November 26, 1980. His brother, who had been institutionalized for a mental condition, came to his apartment and threatened him. He went to the office of the apartment manager to use the telephone to report the incident to the police. He later went to the police station to sign a complaint.
In rebuttal, the state presented the testimony of the officer who took the telephone call and prepared the complaint. That officer testified that Dees stated "that his brother had got so wild that morning about 2:15 that he had to leave his apartment." Robert LeFebvre, whose occupation is not disclosed, said that Dees came to his office about 3:00 p.m. on November 26, 1980, and wanted his brother recommitted to the hospital. Dees stated to LeFebvre that Dees' brother threatened his life when he tried to get his brother to leave his apartment "in the early morning hours." LeFebvre observed Dees was wearing tennis shoes similar to the shoes identified as having been seized at Dees' apartment on December 12, 1980.
Dees' girlfriend Regina also testified. She agreed that Dees spent the night in question with her in her apartment. She knew he did not leave during the night because there was a defective door in her bedroom. The door would fall unless it was opened in a particular manner. It did not fall during the night. The evening was memorable to her because November 26, 1980, was her last work day before Thanksgiving. She usually tried to wear something "festive" on the last day of work before a holiday. She remembered that on the morning of November 26, 1980, she wore a green jumpsuit that buttoned all the way up the back. It required Dees to assist in buttoning the back. On cross-examination, she could not remember what she wore the day before the Fourth of July. She went to Dees' place of employment in January or February. She saw some white track shoes with blue stripes and laced work boots in the paint room.
With that background, the following is an outline of the evidence at the 27.26 hearing. The testimony of movant John Dees included the following. His trial counsel, Phillip J. Barkett, Jr., told him that Dr. Briner's identification of the tennis shoe was irrefutable. Barkett advised him as follows. If Dees admitted the shoes were his he would be convicted. Dees should say the shoes belonged to his brother, or, if he would not say that, he should say he found them. For this reason, he testified at the criminal trial he found those shoes when the sign business was being moved. He admitted that testimony was a lie. He bought those shoes in the early summer of 1980. Dees also testified that Barkett told him that if the prosecuting attorney asked him to try on the right shoe, to lie and say it was a little small. He added that Barkett's senior partner, Robert Dempster, was in on this advice to lie.
Dees further testified that he repeatedly asked Barkett to get an expert to examine the shoes. He said the fee he paid Barkett included the expense of an expert. Dees knew that Barkett submitted photographs of the shoe and shoeprint to an expert in St. Louis. He was informed that the expert said that Briner's testimony was irrefutable. He told Barkett that he did not know whether or not his shoe made the shoeprint. He also told Barkett that if it did, his brother made the shoeprint or the police set him up after they obtained the shoe. Nevertheless, Dees still wanted an expert. In fact, "I got down on my knees and begged him to get an expert." Barkett did not do so. Barkett said that he did not want to prove the state's case.
Dees also testified that on December 12, while he was wearing the shoes in question he was in a muddy field near Charleston. During the preparation of the case he took mud from that field to Barkett "so that we could get an expert to look at the mud and compare the chips to see if they were of the same composition." He further explained that request in the following manner:
And, it was a little muddy, and I got mud on the shoes. And I--whenever I came back to work, and I checked on the sign that I had been painting that was green, you know, and which brings up back to the idea that I thought that the--that the police had...
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...direct appeal, State v. Dees, 639 S.W.2d 149 (Mo.Ct.App.1982), and later affirmed the denial of post-conviction relief. Dees v. State, 753 S.W.2d 598 (Mo.Ct.App.1988). Dees then filed this petition. Upon recommendation of the United States Magistrate, the district court 1 entered an order d......