Forrest v. State

• Decision Date: 16 June 2009
• Docket Number: No. SC 89343.,SC 89343.
• Parties: Earl FORREST, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

290 S.W.3d 704

Earl FORREST, Appellant, v. STATE of Missouri, Respondent.

No. SC 89343.

Supreme Court of Missouri, En Banc.

June 16, 2009.

Rehearing Denied September 1, 2009.

Melinda K. Pendergraph, Office of Public Defender, Columbia, MO, for Appellant.

Chris Koster, Atty. Gen., Andrew W. Hassell, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

WILLIAM RAY PRICE, JR., Judge.

I. Introduction

A jury found Earl Forrest guilty of three counts of first-degree murder and recommended three death sentences. The trial court entered a judgment adopting the jury's recommendation, which this Court affirmed in State v. Forrest, 183 S.W.3d 218 (Mo. banc 2006). Forrest's motion for post-conviction relief under Rule 29.15 was overruled by the motion court. He appeals; this Court has exclusive jurisdiction. Mo. Const. art. V, sec. 10; order of June 16, 1988. The judgment denying post-conviction relief is affirmed.

II. Facts

On December 9, 2002, Forrest went to Harriett Smith's house regarding an unresolved agreement. As part of the agreement, Forrest was to introduce Smith to a drug dealer and, in exchange, Smith would purchase Forrest a lawnmower and mobile home. While at Smith's house, Forrest shot and killed Smith and Michael Wells, a visitor, and took a lockbox of methamphetamine.

Forrest injected himself with the methamphetamine once he returned home. When law enforcement arrived to investigate Smith's and Wells' deaths, Forrest initiated a shootout with law enforcement. As a result, Dent County Sheriff Bob Wofford was wounded and Deputy Sheriff Sharon Joann Barnes was killed. Forrest surrendered. He and his girlfriend also were wounded.

Forrest was charged with three counts of first-degree murder, section 565.020,¹ for the deaths of Smith, Wells, and Barnes. A jury found Forrest guilty and recommended three death sentences after finding an aggravating factor for each victim.² The trial court's judgment adopted the jury's recommendation, which this Court affirmed on direct appeal. Forrest, 183 S.W.3d 218.

Forrest sought post-conviction relief by a Rule 29.15 motion. The motion court overruled an evidentiary hearing for the majority of the claims. An evidentiary hearing was held for the remaining claims, which were denied by the motion court in a detailed order. Forrest appeals the denial of post-conviction relief.

III. Standard of Review

This Court reviews a post-conviction relief motion for whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). A judgment is clearly erroneous when there is a "definite and firm impression that a mistake has been made" after reviewing the entire record. Goodwin v. State, 191 S.W.3d 20, 26 (Mo. banc 2006). A post-conviction relief ruling is presumed correct. Strong v. State, 263 S.W.3d 636, 642 (Mo. banc 2008).

IV. Ineffective Assistance of Counsel

Post-conviction relief is granted for ineffective assistance of trial counsel when the movant shows deficient performance by counsel and prejudice. Goodwin, 191 S.W.3d at 25. Deficient performance exists when the representation is "below an objective standard of reasonableness." Id. Prejudice occurs when a reasonable probability, "sufficient to undermine confidence in the outcome," exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Prejudice in a death penalty case is "a reasonable probability that, but for counsel's deficient performance, the jury would have concluded the balance of aggravating and mitigating circumstances did not warrant death." State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997).

It is presumed that counsel is effective and that the burden is on the movant to show otherwise. Goodwin, 191 S.W.3d at 25. Trial strategy is not a basis for ineffective assistance of counsel. Id. An omission is presumed to be trial strategy. Id. Trial counsel's decisions made after considering the law and facts and pondering alternative strategies generally are not disturbed by a court on review. Id.

V. Points with an Evidentiary Hearing

Forrest raises seven points alleging ineffective assistance of trial counsel that were addressed in the evidentiary hearing.

A. PET Scan

Forrest argues the motion court clearly erred in denying the ineffective assistance of counsel claim for failing to obtain a Positron Emission Tomography (PET) scan. Forrest alleges the PET scan would show brain damage, thereby creating a reasonably probability the jury would have imposed a life sentence.

1. Facts

Forrest presented a diminished capacity and lack of deliberation defense at trial. Dr. Smith, a clinical psychologist, testified in the guilt phase that Forrest was diagnosed with dysthymic disorder (long-term depression), cognitive disorder (brain injury or brain damage), and substance dependence or addiction for alcohol and methamphetamine. In the penalty phase, additional evidence of brain damage and substance dependence was presented from Dr. Smith; Dr. Evans, a psychiatric pharmacist; and Dr. Gelbort, a clinical neuropsychologist.

Trial counsel decided weeks before trial commenced not to pursue a PET scan, despite considering it earlier. Trial counsel testified she was "one hundred percent for sure" she would have ordered a PET scan if she could have done so ex parte and under seal.³ Trial counsel also expressed concerns that the PET scan was not guaranteed to provide helpful information and that it might have provided harmful information that would undermine other mitigating evidence.

Forrest underwent a PET scan after he was convicted. Dr. Preston, a nuclear medicine physician, testified the PET scan showed brain damage and chemical injury, which was consistent with Dr. Gelbort's diagnosis of brain damage. Drs. Smith, Evans, and Gelbort testified at the post-conviction hearing that the PET scan results would not have changed their trial testimony, but would have corroborated their testimony or would have been additional data.

2. Motion Court's Findings

After hearing the evidence, the motion court found trial counsel was not ineffective for not seeking a PET scan and Forrest was not prejudiced. First, the PET scan and Dr. Preston's testimony was inadmissible because the PET scan results "could not, in and of themselves, demonstrate any connection to Forrest's behavior at the time of the crime" for the diminished capacity defense, and no scientific evidence was presented to show the PET scan "would definitively confirm that Forrest was suffering from a mental disease or defect."

Second, trial counsel had full knowledge of the possible PET scan results and reasonably decided not to seek the scan because an ex parte order would not be granted and the results might have undermined the mitigating evidence. Third, Dr. Preston's testimony was cumulative to Drs. Smith's and Gelbort's testimony. And fourth, Forrest was not prejudiced because of the underlying circumstances and Forrest's mental defects.

3. Analysis

The motion court did not err in denying relief regarding the failure to obtain a PET scan. First, the evidence supported the motion court's findings that trial counsel did not order a PET scan for strategic reasons. Counsel's trial strategy is not a basis for ineffectiveness. Goodwin, 191 S.W.3d at 25.

Second, the PET scan was cumulative evidence that merely corroborated the testimony of Drs. Smith and Gelbort. The failure to develop or introduce cumulative evidence does not constitute ineffective assistance of counsel. Id. at 38.

Third, Forrest was not prejudiced in either phase by the absence of the PET scan. He has failed to show a reasonable probability the jury would have recommended a life sentence after balancing the aggravating and mitigating circumstances.

Forrest failed to show trial counsel's performance was deficient and failed to show he was prejudiced. The motion court's findings are not erroneous. The point is denied.

B. Medical Records

Forrest argues the motion court clearly erred in denying the ineffective assistance of counsel claim for failing to investigate and present available mitigating evidence of medical records. Forrest alleges the medical records show evidence of head injuries not presented at trial and prejudice as a lesser sentence might have resulted.

1. Facts

The medical records are from hospital visits in the early 1990s for head injuries from being struck by a baseball bat and suicide attempts. The medical records from the baseball bat incident noted Forrest had a "closed head trauma with repair of 8 cm scalp laceration" but did not lose consciousness. Forrest's drug and alcohol use were mentioned in the medical records from the suicide attempts.

Forrest alleges Dr. Gelbort never received the records because at trial he testified Forrest "could have been misreporting" that the baseball bat incident resulted in a brief loss of or alteration in consciousness. Dr. Gelbort testified at trial and at the post-conviction hearing that he reviewed some records and was aware of the baseball bat incident before trial.

Trial counsel testified the medical records were not introduced because it was not a crucial aspect of the case. The baseball bat incident was a part of a drug deal and trial counsel did not feel it was "mitigation friendly" evidence to be presented to the jury. Trial counsel's strategic reason was to avoid a witness testifying about his discussion with Forrest about the incident. Trial counsel also thought Forrest's possible misrepresentation was not the main issue and other experts addressed Forrest's brain injury.

2. Motion Court's Findings

The motion court entered four findings on this point. First, the motion court found Drs. Smith, Evans, and Gelbort received the medical records. Second, trial counsel made a reasonable and strategic decision not to admit the baseball bat incident because of the background information. Third, any additional evidence of Forrest's drug use...