Duncan v. State

• Decision Date: 30 January 2018
• Docket Number: WD 80522
• Citation: 539 S.W.3d 95
• Parties: Bryan L. DUNCAN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

539 S.W.3d 95

Bryan L. DUNCAN, Appellant,

v.STATE of Missouri, Respondent.

WD 80522

Missouri Court of Appeals, Western District.

OPINION FILED: January 30, 2018

F.A. White, Jr., Kansas City, MO, Attorney for Appellant.

Joshua D. Hawley, Attorney General, and Julia E. Neidhardt, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Before Division One: Thomas H. Newton, Presiding Judge, and Victor C. Howard and Karen King Mitchell, Judges

Karen King Mitchell, Judge

Bryan Duncan appeals the denial, after an evidentiary hearing, of his Rule 24.035¹ motion for post-conviction relief. Duncan raises three claims² on appeal: (1) his plea was involuntary because his counsel misled him regarding the sentence he would receive; (2) his counsel was ineffective in failing to call Duncan's treating physician at sentencing in mitigation of a lengthy sentence; and (3) Duncan's concurrent sentences of twelve and three years' imprisonment constituted a de facto death sentence in violation of the Eighth Amendment in light of Duncan's significant health issues. Finding no error, we affirm.

Background³

According to the probable cause statement filed in the underlying criminal matter, on June 24, 2013, Duncan drove to 5650 Norton Avenue in Jackson County, Missouri, to confront Norris Payne. Upon his arrival, Duncan approached Payne and the two argued. When Payne attempted to get back into his vehicle and leave the confrontation, Duncan pulled out a handgun, fatally shot Payne five times, and then fled the scene. Duncan was subsequently charged, as a prior felony offender, with second-degree murder (§ 565.021) and armed criminal action (§ 571.015).⁴

On the morning of jury selection for Duncan's trial, Duncan decided to withdraw his plea of not guilty and, instead, enter a guilty plea pursuant to an agreement with the State. In exchange for Duncan's guilty pleas, the State agreed to argue for a maximum sentence of twelve years on the second-degree murder charge to run concurrently with the mandatory minimum of three years on the armed criminal action charge. The State further agreed that Duncan would be allowed to argue for a suspended sentence and probation, as well as remain on house arrest pending sentencing. The prosecutor noted that Duncan's case presented "a very unusual situation" and that she had obtained special permission for the terms of the agreement "based on [Duncan's] health." The prosecutor advised the court that Duncan "has some pretty severe health issues. He does dialysis three times a week and that can be done at the Jackson County jail, but it's somewhat problematic."

During the plea hearing, Duncan advised the court that he was "clear headed" and wished to withdraw his not-guilty plea and enter a guilty plea. The court specifically noted its understanding that Duncan was "in complete renal failure

." The court advised Duncan that the range of punishment for the murder charge was ten-to-thirty years or life imprisonment and that it was three years to life for armed criminal action. The court further advised Duncan that both charges contained mandatory minimums for the amount of time he must serve before becoming parole eligible, and Duncan indicated that he understood. The court specifically discussed with Duncan the effect of the plea agreement on sentencing:

THE COURT: And on the date of sentencing, it will be up to me and me alone as the judge—

DEFENDANT DUNCAN: Yes, sir.

THE COURT: —to determine what the sentence will be?

DEFENDANT DUNCAN: Yes, sir.

THE COURT: If—and what we believe right now is that the most the state can ask for in that sentencing hearing is 12 years.

DEFENDANT DUNCAN: Yes, sir.

THE COURT: You may also ask for probation.

DEFENDANT DUNCAN: Yes, sir.

THE COURT: And I could give you probation and then that would mean you wouldn't have to serve that 85 percent.

DEFENDANT DUNCAN: Yes, sir.

THE COURT: That it will ultimately be up to me.

DEFENDANT DUNCAN: Yes, sir.

THE COURT: You will serve—and in the Count 2, the sentence will be 3 years.

DEFENDANT DUNCAN: Yes, sir.

THE COURT: And you know that you've got to go serve that three?

DEFENDANT DUNCAN: Yes, sir. I understand.

THE COURT: All right. On the date of sentencing you should be prepared to go into custody.

DEFENDANT DUNCAN: Yes, sir.

The court then discussed the various constitutional rights attendant to trial that Duncan was relinquishing through his guilty pleas, and Duncan acknowledged understanding them and that he was waiving them by pleading guilty. The court then returned to the issue of sentencing:

THE COURT: Okay. Now, as it relates to these matters, sir, you understand that the state at the sentencing is going to ask for something different than you want? You understand that?

DEFENDANT DUNCAN: Yes, sir.

THE COURT: Ms. Lundak?

MS. LUNDAK: We're asking for 12 years.

THE COURT: Okay. You understand the state is going to ask for 12?

DEFENDANT DUNCAN: Yes, sir.

THE COURT: Okay. And, of course, you are going to request that I put you on probation on Count 1, I would assume; right?

DEFENDANT DUNCAN: Yes, sir.

THE COURT: But it's my decision ultimately.

DEFENDANT DUNCAN: Yes, sir.

THE COURT: All right. As it relates to this matter, sir, has anyone promised you anything to get you to plead guilty other than what the prosecutor has recommended?

DEFENDANT DUNCAN: No, sir.

THE COURT: Okay. And have you discussed this case fully with your lawyer?

DEFENDANT DUNCAN: Yes, sir.

THE COURT: And you've talked to him about your rights in all this regard?

DEFENDANT DUNCAN: Yes, sir.

THE COURT: And, as it relates to these matters, you understand if you plead guilty you're giving up all the rights we've already talked about?

DEFENDANT DUNCAN: Yes, sir.

Duncan acknowledged shooting Payne five times with a deadly weapon, knowing that it likely would result in Payne's death. Duncan advised the court that he was pleading guilty because he was, in fact, guilty, and he further indicated that no one had forced or coerced his pleas. Duncan denied having any complaints or criticisms of counsel before the court returned, once again, to the issue of sentencing.

THE COURT: Now, there's going to be a Sentencing Assessment Report. Do you understand that?

DEFENDANT DUNCAN: Yes, sir.

THE COURT: And when that Sentencing Assessment Report comes back to me they make recommendations to me as to what they think I should do.

DEFENDANT DUNCAN: Yes, sir.

THE COURT: Or they might put in there percentages of this is how many people do this, this is how many defendants are sentenced to this particular sentence or not. Do you understand that?

DEFENDANT DUNCAN: Yes, sir.

THE COURT: But I don't have to follow that. I make the ultimate decision. Do you understand that?

DEFENDANT DUNCAN: Yes, sir.

THE COURT: Okay. You understand, sir, that if I choose not to put you on probation you cannot take back your plea of guilty for that reason?

DEFENDANT DUNCAN: Yes, sir. I understand.

The court accepted Duncan's pleas and set the matter for sentencing.

At the sentencing hearing, the court received victim impact evidence and testimony from Duncan. During his testimony, Duncan attempted to justify his conduct by claiming that he shot Payne only because he feared for his own life. Duncan also relayed that he was in renal failure

and had been since 2009. He further testified to the effects of his renal failure on his diet and medications. Duncan's Counsel offered various medical records into evidence to support Duncan's assertions regarding his renal failure.⁵

The court permitted the parties to argue for appropriate punishment, and the State offered the following argument:

MS. LUNDAK: Yes, Your Honor. The first thing I would like to say to the Court is that the defendant's health is not a mitigating factor. He was healthy enough to go over to start a confrontation with Norris Payne. He was healthy enough to go over there with a loaded gun, and he was healthy enough to shoot him five times in front of a parking lot full of people; adults and children.

This is an aggravated case. There were five shots fired. Norris Payne was not armed. He was shot as he was trying to get away. The defendant went over there, walked up to the victim's car and confronted him and as he was trying to leave he shot him five times.

This affects the family greatly, but it also affects the community there in that apartment complex. There was a thirteen-year-old boy who knew the defendant, was friends with his son that made the 911 call. A thirteen[-]year [-]old had to sit there and watch this man shoot somebody five times and he was there on the phone as Norris Payne was dying.

That entire community was affected so much so that the one and only reason we offered a lid of 12 years in this case is because people are afraid. When they see somebody who comes up and shoots somebody in cold blood five times in front of a crowd of people they are afraid to come to court. There were people that made statements at the time that the state worked diligently to locate. Everybody was afraid. People lied in depositions and came back and then told the truth. And the reason they did is because they were afraid of this man.

And part of the reason was he was out on bond. And I'm not saying I have evidence that there [were] direct threats from the defendant in this case. But when you see that kind of behavior in this kind of a circumstance an unarmed helpless man trying to leave shot 5 times people are afraid. They don't want to come to the court. They don't want to be labeled as snitches. They know he has family members in the community.

So this is an aggravated case and the health of the defendant is no defense whatsoever. And the fact that he comes in here and tries to justify what he did, that he went over there for a conversation is just appalling. Instead of getting up there and taking full responsibility he tries to justify his behavior in front of this family who is suffering the loss of a father, a son, a—I mean, Norris Payne has seven children ages five through nineteen. The

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