Ervin v. State

• Decision Date: 25 June 2002
• Docket Number: No. SC 83459.,SC 83459.
• Parties: Rufus James ERVIN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

80 S.W.3d 817

Rufus James ERVIN, Appellant, v. STATE of Missouri, Respondent.

No. SC 83459.

Supreme Court of Missouri, En Banc.

June 25, 2002.

Rehearing Denied August 27, 2002.

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Melinda K. Pendergraph, Pete Carter, Asst. Public Defenders, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cassandra K. Dolgin, John M. Morris, Assistant Attorney Generals, Jefferson City, for Respondent.

MICHAEL A. WOLFF, Judge.

Rufus James Ervin was convicted of murder in the first degree for killing Leland White. After the jury deadlocked on punishment, the trial judge sentenced Ervin to death. Ervin appealed and this Court affirmed. State v. Ervin, 979 S.W.2d 149 (Mo. banc 1998). Ervin's Rule 29.15 motion for post-conviction relief claiming ineffective assistance of counsel was overruled. This Court has jurisdiction of the appeal. Mo. Const. art. V, section 10.

Ervin contends that his counsel was ineffective in failing to object to certain matters in the guilt phase trial and in failing to investigate matters pertinent to the penalty phase and that he was prejudiced thereby. The motion court, however, did not make specific findings and conclusions on the issue of Ervin's claim that his counsel failed to investigate Ervin's alleged threat and attack on his cellmate. Because this Court lacks an adequate basis on which to review this claim, the motion court's judgment as to the penalty phase is vacated and remanded for findings of fact and conclusions of law relating to the alleged threat to and attack on the cellmate. This Court affirms the motion court on all other points.

The Facts and Motion Court Judgment¹

On September 1, 1994, Ervin, Lucius House, Keith McCallister and Henry Cook drove to Leland White's trailer, where Ervin also had lived. Upon arriving, Ervin met White outside the trailer and went with him inside. About 15 minutes later, House heard Ervin yelling, "This is mine. This is mine." White called for help. Something hit against the trailer wall, a lamp was knocked over, and the trailer caught fire.

Ervin dragged White, who was naked, out of the trailer after it caught fire, pulling him by something tied around White's neck. White then said to Ervin, "Just go ahead and kill me, James. Just kill me, James." Ervin picked up a brick and hit White four or five times on the head. Ervin began to walk away from White but returned to him after White moved. Ervin then hit White three or four additional times in the head with the brick. Ervin returned to the car and said to the others, "The motherfucker said kill me, so I did."

Jefferey McSpadden, the Reynolds County coroner, arrived after Ervin sought help from a neighbor. Ervin claimed that White's trailer had exploded. McSpadden determined that the cause of death was an open skull fracture. After speaking with McSpadden, a police officer arrested Ervin, Cook, House, and McCallister. Ervin confessed to the police to hitting White in the head with a brick.

A jury found Ervin guilty of murder in the first degree. In the penalty phase of trial, the state presented evidence of Ervin's prior convictions for assault upon a law enforcement officer and two weapons counts. The state's evidence also included a previous arrest for driving while intoxicated, which included verbally abusive and physically violent conduct following the arrest.

A former Phelps County jailer testified that Ervin threatened to kill his cellmate. The jailer also testified that Ervin assaulted the jailer, causing a broken right jaw joint and a bruised brain with swelling.

Ervin presented evidence from two clinical psychologists, but no evidence rebutting the threat to kill Ervin's cellmate or testimony to explain the circumstances of this altercation in the Phelps County jail.

Before trial, Ervin's trial counsel² met with Ervin's mother. His mother provided trial counsel with a list of Ervin's siblings. Counsel did not interview them or ask them to testify. Counsel spoke briefly to one of Ervin's sisters when she called his office prior to trial, asking how she could help her brother. He told her to come to the trial. Ervin's mother and one of his sisters attended trial. None of his family members was called to testify during the penalty phase.

After hearing evidence, instructions, and arguments by counsel in the penalty phase, the jury was unable to reach a verdict on punishment. The trial court sentenced Ervin, as provided under section 565.030.4. The court imposed a sentence of death. This Court affirmed on direct appeal.

Thereafter, Ervin filed a timely Rule 29.15 motion in the trial court for post-conviction relief. He claimed his attorney was ineffective. The court held a hearing on Ervin's claims and overruled his motion.

The Standard of Review

This Court's review is limited to determining whether the motion court clearly erred in its findings and conclusions. Rule 29.15(k); State v. Wise, 879 S.W.2d 494, 524 (Mo. banc 1994). The findings and conclusions of the motion court "are clearly erroneous only if, after review of the entire record, the appellate court is left with the definite impression that a mistake has been made." State v. Parker, 886 S.W.2d 908, 929 (Mo. banc 1994).

Effective Assistance of Counsel

The right to counsel guaranteed by state and federal constitutions includes the right to effective assistance thereof. State v. Harvey, 692 S.W.2d 290 (Mo. banc 1985). With respect to claims of ineffective assistance of counsel, the burden is on the claimant to prove that his counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to meet this standard movant must show by a preponderance of the evidence: (1) that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances and (2) that counsel's deficient performance was prejudicial to the defense. Id.

Trial Counsel's Failure to Object During Guilt Phase

Ervin claims that his attorney was ineffective for failing to object on matters during trial. The first two, as Ervin alleges, involve trial counsel's failure to object to improper argument when the state asked the jurors to: (1) imagine how painful it was to have their throats cut as White's was; and (2) punish Ervin for exercising his constitutional rights to a jury, counsel, and a fair and impartial trial. Ervin also claims that his attorney failed to object to improper voir dire.

Application of Strickland Test to Failure to Object

The motion court rejected Ervin's claim that his attorney was ineffective for failing to object to improper argument in closing and during voir dire, concluding, "Movant sought plain error review challenging this argument on direct appeal .... The Missouri Supreme Court denied relief, having `reviewed the record and [found] no manifest injustice or miscarriage of justice, even assuming, arguendo, that these statements were improper.'" The motion court cited Sidebottom v. State, 781 S.W.2d 791, 796 (Mo. banc 1989).

This Court later rejected this interpretation of Sidebottom. In Deck v. State, 68 S.W.3d 418 (Mo. banc 2002), this Court stated, "Various opinions have taken ... language from Sidebottom ... out of context and have incorrectly concluded that `[a] finding of no manifest injustice on direct plain error review establishes a finding of no prejudice for purposes of the Strickland test.'" Id. at 427. The two tests are not the same. Id. Thus, the motion court in this case applied the wrong legal standard. However, even under the correct standard, Ervin has not carried his burden of showing incompetence and has not shown prejudice. See State v. Hubert, 923 S.W.2d 434, 438 (Mo.App.1996).

The mere failure to make objections does not constitute ineffective assistance of counsel. State v. Bearden, 926 S.W.2d 483, 486 (Mo.App.1996). To justify relief on a post-conviction motion, the failure to object "must have been of such character as to deprive the defendant substantially of his right to a fair trial." Id.

1. Allegation that Prosecutor Improperly Placed Jurors in the Shoes of the Victim

Ervin's first claim is that the prosecutor asked the jurors to imagine themselves in the place of the victim experiencing the detail of the crime. Arguing for jurors to place themselves in the shoes of a party or victim is improper personalization that "can only arouse fear in the jury." State v. Storey, 901 S.W.2d 886, 901 (Mo. banc 1995). In Storey, the prosecutor asked the jurors to put themselves in the victim's place, then graphically detailed the crime as if the "jurors were the victims ...." Id.

The prosecutor in this case did not use the kind of graphic detail that would lead the Court to conclude that Ervin was prejudiced. The prosecutor made the remarks, not to highlight the gruesome nature of the murder, but to explain why White stated, "Just go ahead and kill me. Come back and kill me."³ This statement was far less inflammatory than the statement made in Storey and cannot be said to have tainted the jury with suggestions of personal danger to them or their families. Id.

2. Allegation that Prosecutor Punished Ervin for Exercising His Right to a Jury Trial

Ervin next claims that the prosecutor sought to punish Ervin for exercising his right to a jury trial. During closing arguments, the prosecutor stated:

[Defense counsel] makes reference to a great country. And it is a great country. And this defendant even acknowledged that. Because he is aware and he pointed out to you that he has a jury here. That he has a defense attorney. That he has a judge. And he's had his trial.

But Lee White was also entitled to a trial before the punishment of death was imposed upon him, by...