Garrett v. State

• Decision Date: 28 August 1991
• Docket Number: No. 17107,17107
• Citation: 814 S.W.2d 325
• Parties: Arvin J. GARRETT, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 325

814 S.W.2d 325

Arvin J. GARRETT, Appellant, v. STATE of Missouri, Respondent.

No. 17107.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 28, 1991.

Judith C. LaRose, Columbia, for appellant.

William L. Webster Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

Arvin J. Garrett ("movant") appeals from a judgment denying relief in a proceeding by him under former Rule 27.26 ¹ to vacate his conviction, per jury trial, of murder in the first degree. The conviction was affirmed on direct appeal. State v. Garrett, 595 S.W.2d 422 (Mo.App.1980).

In the instant proceeding, the circuit court (henceforth referred to as "the motion court") conducted an evidentiary hearing at which movant appeared in person and with counsel. Thereafter, with commendable diligence, the motion court made comprehensive findings of fact and conclusions of law.

In this appeal, movant presents three points relied on. Our opinion in the direct appeal provides a factual preface to our discussion of them.

Movant's first point:

"The motion court clearly erred in denying [movant's] Rule 27.26 motion because the record clearly shows that [movant] was denied the effective assistance of counsel ... in that [movant's] trial counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under the same or similar circumstances, by failing to request a pretrial mental examination of [movant] when counsel knew that [movant] was taking prescription drugs for psychological problems prior to the trial."

The motion court's findings included this:

"Movant claims that his trial counsel was ineffective for failing to file a pretrial motion for a mental examination. Movant alleges that at the time of his confessions he was under the influence of 'psychological' drugs and was suffering from a mental defect. Movant apparently claims that the drugs and mental defect were such as to make his confessions involuntary. Trial counsel testified at the evidentiary hearing that there was nothing to suggest to him that there was anything wrong with movant's mental condition. The only evidence offered to the contrary was movant's own testimony which this Court finds to be unworthy of belief. In the absence of any suggestion of a mental problem, counsel cannot be held to have been ineffective in failing to request the mental examination. O'Neal v. State, 724 S.W.2d 302, 306 (Mo.App., S.D.1987). In addition, movant failed to establish that he was prejudiced by trial counsel's failure to request the mental examination. Movant did not present any evidence at the evidentiary hearing to show that a mental exam would have provided anything helpful to him. Id. at 306. This ground is denied."

Our review is limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 27.26(j); Mallett v. State, 769 S.W.2d 77, 79 (Mo. banc 1989) cert. denied, 494 U.S. 1009, 110 S.Ct. 1308, 108 L.Ed.2d 484 (1990).

To prevail on a claim of ineffective assistance of counsel, a prisoner seeking post-conviction relief must show (1) his lawyer failed to exercise the customary skill and diligence that a reasonably competent lawyer would have exercised under similar circumstances, and (2) the prisoner was thereby prejudiced. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). The prisoner must satisfy both elements; if he fails to satisfy one, the court need not consider the other. Id.

In the argument under his first point, movant asserts he was prejudiced because his lawyer failed to move for a pretrial mental examination. However, movant supplies no clue as to what the prejudice was.

At the evidentiary hearing in the motion court, movant testified he was taking Mellaril and Thorazine "at the time that all this was going on."

On October 10, 1978, at a pretrial hearing on a motion to suppress, movant testified he began taking Thorazine in January, 1978, in the penitentiary. ² Movant avowed he was taking Mellaril at the time he wrote the letter of April 29, 1978, to the prosecutor (described in 595 S.W.2d at 426).

The murder that is the subject of this proceeding occurred late on February 19, 1977, or in the early morning hours of the next day. Movant directs us to no evidence indicating he was taking Mellaril or Thorazine at that time or that he suffered from any mental infirmity at that time. ³ Consequently, there is nothing in the record suggesting a mental examination would have supplied a basis for a defense of not guilty by reason of mental disease or defect excluding responsibility.

The record is likewise bare of any indication that a mental examination would have supplied a basis for suppressing movant's incriminatory statements. In 595 S.W.2d at 426-28, we discussed movant's contention that the medication rendered his incriminatory statements involuntary. Rejecting that argument, we noted movant's own testimony was, "I knew exactly what I was doing" at the time of the April 29, 1978, letter. Id. at 428.

Finally, the record amply refutes any contention movant was unable to understand the proceedings against him or assist his lawyer in his defense. At the evidentiary hearing in the motion court, the lawyer who represented movant at trial testified he (the lawyer) had no problems with movant in preparing the case. Counsel explained, "He was competent, he was able to assist me, and ably assisted me in his defense at all times...." Counsel recalled movant was asked in every court hearing whether he was under the influence of drugs. According to counsel, movant always responded, "No." On cross-examination, counsel testified: "He was ably participating in his defense with me. I was having no problem communicating with him or having him help me prepare a defense."

The motion court, as we have seen, found movant's testimony about his mental condition and the effect of the medication unworthy of belief. In this 27.26 proceeding, credibility of the witnesses was a matter for the motion court's determination; the motion court was not required to believe movant's testimony, even had there been no evidence to the contrary. Johnson v. State, 774 S.W.2d 862, 863 (Mo.App.1989); Thomas v. State, 759 S.W.2d 622, 623 (Mo.App.1988); Leigh v. State, 673 S.W.2d 788, 790[3 and 4] (Mo.App.1984).

O'Neal v. State, 724 S.W.2d 302 (Mo.App.1987), cited by the motion court in its findings, supra, holds that when, in a Rule 27.26 proceeding, a prisoner challenges his lawyer's failure to move for a mental examination, the prisoner must show the existence of a factual basis indicating his mental condition was questionable, which should have caused the lawyer to initiate an independent investigation of the prisoner's mental state. Id. at 305. In the absence of some suggestion of mental abnormality, there is no duty on counsel to initiate an investigation of an accused's mental condition. Id. at 305-06.

The testimony of movant's lawyer, which the motion court obviously believed, established there was no indication movant had any mental affliction or that the medication impaired his mental acuity. That being so, the failure of movant's lawyer to request a pretrial mental examination of movant did not constitute failure to exercise the customary skill and diligence that a reasonably competent lawyer would have exercised under similar circumstances. Id. at 306. Furthermore, movant has demonstrated no prejudice from the lack of a pretrial mental examination. His first point is, accordingly, denied.

His second point:

"The motion court clearly erred in denying [movant's] motion ... pursuant to Rule 27.26, because [movant] was charged with capital murder under section 559.005, RSMo [Supp.] 1975 but was convicted of first degree murder and sentenced by the jury to life imprisonment. The trial court sentenced [movant] to life imprisonment with no possibility of parole for fifty years, and thus the court exceeded its jurisdiction in sentencing [movant] to life imprisonment without parole and the sentence imposed was in excess of the maximum authorized by law."

On direct appeal, movant pointed out that the trial court sentenced him to life imprisonment and added a proviso that he not be paroled for 50 years. 595 S.W.2d at 434[30, 31]. Movant noted that the verdict-directing instruction did not mention the no-parole proviso, and the life sentence assessed by the jury did not include it. Movant argued he was thereby denied his constitutional right to a jury trial on the issue of punishment. This Court rejected that contention. Id.

On cursory examination, movant's second point in this appeal appears to raise the identical issue discussed in the preceding paragraph. However, the argument following movant's second point reveals it is a different contention than the one rejected on direct appeal.

Four statutes are pertinent to movant's second point. All are in RSMo Supp.1975. They are:

"559.005. Capital murder defined.--A person is guilty of capital murder if he unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of a human being.

559.007. First degree murder defined.--The unlawful killing of a human being when committed without a premeditated intent to cause the death of a particular individual but when committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary, or kidnapping is murder in the first degree.

559.009. Degree of homicide, jury to determine--punishments for various degrees.

....

3. Persons convicted of capital murder shall be punished by death. Persons convicted of murder in the first degree shall be punished by imprisonment by the division of corrections during their natural lives....

559.011. Alternative punishment if death penalty declared unconstitutional.--If the category of capital murder or the penalty prescribed herein is declared to be...