Foster v. State
| Decision Date | 29 March 1988 |
| Docket Number | No. 53318,53318 |
| Citation | 748 S.W.2d 903 |
| Parties | Emmitt FOSTER, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Mary Clare McWilliams, Asst. Public Defender, St. Louis, for appellant.
William L. Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for respondent.
Movant was found guilty of capital murder, Section 565.001, RSMo (1978), and sentenced to death. That conviction was affirmed on direct appeal. See State v. Foster, 700 S.W.2d 440 (Mo. banc 1985), cert. denied, ---- U.S. ----, 107 S.Ct. 14, 92 L.Ed.2d 768 (1986). Movant then brought a Rule 27.26 motion. Movant appeals from the denial of that motion after an evidentiary hearing. We affirm.
A review of the evidence adduced at the murder trial indicates that one of the victims, De Ann Keys, testified that she and her boyfriend, Travis Walker, were awakened about two o'clock in the morning by a phone call from friends of Walker. A short time later, two men arrived at Walker's apartment. Walker went into the living room with them and Keys stayed in the bedroom. One of the men was Michael Phillips. Keys could not identify the voice of the other man. Phillips came into the bedroom and forced Keys at gunpoint to come into the living room and to lie next to Walker on the floor. At that point, Keys saw movant standing over Walker with a pistol in his hand. Phillips ransacked the apartment, looking for jewelry. Before the two men left, they shot both Walker and Keys.
Shortly thereafter, Keys "woke up" and went outside to seek help. She then reentered the apartment and wrote the names "John Lee" and "Michael Philips [sic]" on an envelope. Keys knew movant only as John Lee and not as Emmitt Foster.
Other evidence at the murder trial reveals that one of her neighbors saw Keys outside and telephoned the police. When the police arrived, they found Walker dead on the living room floor and Keys lying across the bed in the bedroom. Keys had sustained four bullet wounds to her head and face. When she tried to speak, her speech was so slurred that it was unintelligible. She gave police the envelope with the names on it.
Movant did not testify at trial. His defense was alibi.
In the Rule 27.26 proceeding, movant raised numerous claims of ineffective assistance of trial counsel. 1 Appellate review of the trial court's judgment in a Rule 27.26 proceeding is "limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous." Rule 27.26(j); Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984). Such findings and conclusions are deemed clearly erroneous only if, after a review of the entire record, an appellate court is left with the "definite and firm impression that a mistake has been made." Stokes v. State, 688 S.W.2d 19, 21 (Mo.App.1985).
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979). Movant must show that there is a reasonable probability that, absent the alleged error, the fact finder would have had a reasonable doubt respecting guilt. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. In determining whether a reasonable probability exists, the court must consider the totality of the evidence before the fact finder. Id.
In his first point, movant contends that counsel was ineffective during the voir dire segment of the trial. He first asserts that counsel failed to rehabilitate four veniremen with respect to whether they could impose the death penalty. Only those jurors who refuse to consider the death penalty, not those jurors who merely voice their general objections, may be excluded for cause from a panel. Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968).
Our review of the record reveals that the veniremen in question responded to specific questions by the prosecutor and stated that they could not consider the death penalty. At that point, the prosecutor questioned each of them further to clarify their feelings and elicited from each of them that "under no circumstances" could they impose the death penalty.
These veniremen did not voice just a general objection to the death penalty and did not make contradictory statements regarding the death penalty. Compare Jurek v. Estelle, 593 F.2d 672 (5th Cir.1979). Admittedly, counsel did not attempt to rehabilitate these veniremen. Given their unequivocal and absolute bias against capital punishment, however, it is doubtful that they were capable of rehabilitation. Movant was not prejudiced by counsel's failure to rehabilitate the four veniremen during the voir dire when it would have been counterproductive to do so.
Movant also alleges that counsel's failure to question each venire member individually denied him effective assistance of counsel. We disagree. Counsel questioned most of the venire members individually. In addition, counsel posed questions to the panel as a whole and noted agreement by everyone's silence. It was appropriate for counsel to employ group questioning and to consider nonverbal responses in determining a venireman's qualification as a potential juror in a death penalty case. See Bannister v. State, 726 S.W.2d 821, 826 (Mo.App.1987), cert. denied, ---- U.S. ----, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987). Moreover, counsel's decisions about whether to question an individual venire member and about how to conduct the questioning are matters of trial strategy, not subject to a Rule 27.27 proceeding.
In another part of his first point, movant charges ineffective assistance of counsel for failure to object to certain questions by the prosecutor during the voir dire. Movant contends that the prosecutor attempted to commit the jury to a verdict.
At the start of the death qualification of the venire members, the prosecutor addressed the venire panel as follows:
Movant relies on State v. Pinkston, 79 S.W.2d 1046 (Mo.1935) to support his contention. In that case one of the typical questions the prosecutor posed was:
If you were accepted as a juror in this case, if you believe and found from the evidence beyond a reasonable doubt that the defendant was guilty, if you believe from that evidence that the death penalty was proper penalty to follow a finding of guilt, would you vote for it?
Id. at 1048. (emphasis added).
In Pinkston, the Supreme Court recognized that a juror whose opinion would preclude him from assessing the death penalty should be disqualified as a juror in a capital case. The court stated, however, that the prosecutor had no right to ask a prospective juror what his verdict would be given certain contingencies. Id. at 1049.
In the present case, the prosecutor did not ask the venire members what verdict each of them would vote if certain facts were shown. The prosecutor merely explained to members of the panel that the question of punishment would arise only if movant was found guilty of capital murder. The prosecutor then asked if the venire members could assess the death penalty against movant. The prosecutor's questions were not a request for a commitment from prospective jurors to a future course of action, but constituted a proper inquiry into whether the venire members would be able to follow the court's instructions with regard to assessing punishment. Defense counsel cannot be deemed ineffective for failing to raise a non-meritorious objection. See Shaw v. State, 686 S.W.2d 513, 516 (Mo.App.1985).
Movant next contends that counsel was ineffective for failing to object when the prosecutor questioned the venire members as follows:
The most fundamental thing in the law, and I'm going to be talking about it, and, of course, so will [defense counsel], is the presumption of innocence, which means that you don't make up your mind. You keep your mind open and you don't decide innocence or guilt until sometime as Judge Luten asks you to. Do you understand that? We don't want your decision now but back to the question. What I would like to ask you is this. You want to wait and see her. You want to hear what she has to say, but the fact that there is only one witness to this crime, do you feel that that is insufficient?
Here, the question was asked because the only person to place movant at the scene of the crime was Keys. Neither a negative nor an affirmative answer to the prosecutor's inquiry could be construed as committing a prospective juror to a particular course of...
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