Garth v. State

Decision Date22 October 2013
Docket NumberNo. ED 99533.,ED 99533.
Citation411 S.W.3d 366
PartiesPaul GARTH, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Roxanna A. Mason, St. Louis, MO, for appellant.

Chris Koster, Timothy A. Blackwell, Jefferson City, MO, for respondent.

CLIFFORD H. AHRENS, Judge.

Paul Garth (Movant) appeals from the judgment of the motion court that denied his motion for post-conviction relief pursuant to Rule 29.15 without an evidentiary hearing. Finding no error, we affirm.

Movant was charged by indictment with first-degree domestic assault in violation of Section 565.072 RSMo (Cum.Supp.2006) for events that happened on December 18, 2009. The facts in that case are as follows. In December 2009, Movant was living with Victim as her boyfriend. State v. Garth, 352 S.W.3d 644, 647 (Mo.App.2011). Victim broke off their relationship after Movant wrote “I love u” on a bullet and gave it to Victim. Id. On December 17, 2009, Movant went to Victim's house that evening, purportedly to drop off keys and get his belongings and they argued into the night. Id. At approximately 2:00 a.m. the next morning, December 18, 2009, Movant went to the basement and got a can of gasoline, which he poured on Victim, stating that if he couldn't have her, no one would. Id. Movant then set her on fire with a lighter. Id. After the fire was extinguished, Victim eventually persuaded Movant to take her to the hospital by promising that she would tell the hospital personnel that she injured herself. Id. Movant took Victim to the hospital, where Victim stated that she tried to kill herself by pouring gasoline on herself and lighting it because her grandmother had just died. Id. Victim went into shock and lost consciousness. Id. The next day, Movant called Victim's ex-mother-in-law., and told her that they had been messing with a gas can on the stove and Victim lit a cigarette and “blew herself up.” Victim in fact had an electric stove.

Victim's son heard about it and called Movant, who told him that Victim poured kerosene on herself and lit herself on fire. Id. He asked Movant why he did not call 911 or notify family members, to which Movant responded that he had been trying to extinguish the fire and had burnt his hands. Id. Victim's brother, W.J., visited her at the hospital and was told by hospital personnel that Victim had said that she had done this to herself. Id. at 648. Victim had tubes down her throat and was unable to speak, but W.J. asked her to blink her eyes twice if somebody had done this to her and she blinked twice. Id. W.J. then asked her to blink once if Movant had done this to her and she blinked once. Id. Hospital personnel called the police. Id. At Victim's house, the police observed a large burn mark on the dining room carpet, burn marks on the bathroom cabinet and floor, burnt clothing in the kitchen trash can, a burned bathroom rug at the bottom of the basement steps, and a gasoline can in the basement. Id.

On December 22, 2009, after the tubes were removed from Victim's throat, she told the police that Movant had tried to kill her by setting her on fire. Id. Victim went into cardiac arrest but survived. Id. Victim was discharged from the hospital on January 5.2010, but was still being treated regularly for her injuries at the time of trial in November, 2010. Id.

Movant initially was represented by a public defender, but prior to trial filed a motion to represent himself and requesting standby counsel because he was unhappy with his representation by that public defender. The trial court went over the waiver of counsel form with Movant, repeatedly cautioning him of the dangers of proceeding pro se, and telling him that he was not inclined to appoint standby counsel. The trial court advised Movant against waiving counsel. The State asked Movant to reconsider his decision to proceed pro se. Movant declined. The trial court found that Movant had been fully informed of his right to counsel, understood that right, and was literate and mentally competent. It also found that Movant knowingly, voluntarily and intelligently waived his right to be represented by counsel. Later, in pre-trial motions, another public defender offered to be co-counsel with the previously appointed public defender whom Movant had discharged. Movant had previously refused that offer, and refused it again, as he wanted them only as standby counsel. The trial court declined to have the public defenders act as standby counsel.

After Movant filed his motion to represent himself, he also filed a request for phone access, to state and federal law books, for internet access for legal work, and for a private investigator. The trial court issued an order in response that noted that Movant had the same access to a phone and visitors that all jail inmates had and had access to a law library. It ordered St. Louis County Justice Services to reasonably accommodate Movant's access to the law library. The trial court noted that inmates have no access to the internet, and stated that the trial court would provide any relevant legal case that Movant could not access in the law library. It declined to rule on the request for a private phone and private investigator until Movant had the opportunity to demonstrate why he needed a private phone and a private investigator, with specific details. Movant filed another motion in response, which stated, among other things, that he did not have full access to a law library and full volumes of state and federal law books, and was unable to Shepardize cases. Movant followed this with a letter to the trial court stating that he still did not have full access to law books from the St. Louis County Justice Center, including access to full volumes of federal and state law books, Corpus Juris Secundum, Missouri Practice & Procedure, Shepard Citations, and Georgetown Law Review. The trial court responded with an order that noted Movant's letter, and ordered that all previous orders to remain in full force and effect.

Movant was convicted of first-degree domestic assault after a jury trial and sentenced to a term of life imprisonment. Movant's conviction was affirmed on direct appeal in Garth, 352 S.W.3d 644. Movant timely filed a motion for post-conviction relief pursuant to Rule 29.15. Appointed counsel timely filed an amended motion in which Movant alleged that he unknowingly waived his right to testify because the trial court failed to advise him that he could testify in the narrative, that appellate counsel was ineffective for failing to raise on appeal that Movant had inadequate access to a law library, which impaired his defense, and that appellate counsel was ineffective for failing to raise on appeal that the State improperly led its witnesses on direct examination.

The motion court denied Movant's amended motion without an evidentiary hearing. It made a number of findings and conclusions. Regarding Movant's claim that the trial court's “failure” to notify him that he could testify in the narrative resulted in an unknowing waiver of his right to testify, the motion court first concluded that this claim of error, as an assertion of trial court error, should have been raised on direct appeal and was not cognizable in a Rule 29.15 motion. It noted that Movant cited to no case law, state or federal, in support of this claim in its amended motion. The motion court also extensively reviewed the trial court's efforts to ensure that Movant's waiver of counsel was knowing, voluntary, and intelligent, found that it was clear from the record that Movant was advised of his right to testify and waived that right knowingly and voluntarily. It also found that the trial court has no duty to also inform a pro se defendant that he can testify in the narrative. It further found that, in light of all of the evidence against Movant, that his proposed testimony was not credible and would have had minimal effect on the outcome of the case.

On the claim that appellate counsel was ineffective for failing to raise the issue that Movant was denied access to legal materials to prepare his defense, the motion court found that it to be clear from the transcript and legal file that Movant had access to a law library with legal materials, and that Movant acknowledged this repeatedly in the record. It noted that his real complaint was that he did not have full access to all the materials that he wanted and that he had limited time due to other inmates using materials. The motion court noted that the right to proceed pro se does not necessarily include the right to access to a law library or another affirmative aid from the State, and that purported inadequacies of a jail law library does not deny meaningful access to the courts. It found that Movant made no offer of proof that the books that he wanted had information about leading questions or objections to evidence, and no offer of proof or showing that if such objections had been made that the outcome of the case would have been different at trial or on appeal. It found that Movant made no allegation or offer of proof as to how he was prejudiced by not having those specific books, and that he was unable to show that the verdict would have been different if he had those particular books, or that if appellate counsel had raised this issue that this Court would have reversed. The motion court found that the evidence against Movant was “overwhelming[,] and proceeded to summarize the evidence. It found that it was “clear from the record” that having those law books for a longer time would not have changed the outcome of the case at trial or on appeal had appellate counsel raised the matter.

Regarding the claim that appellate counsel was ineffective for failing to raise the issue of the State's use of leading questions at trial, it found that most of Movant's examples came from redirect examination, and a not overly large number of arguably leading questions were on...

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4 cases
  • Henderson v. Commonwealth
    • United States
    • Supreme Court of Kentucky
    • December 13, 2018
    ...145 (2017) ("Acting pro se, defendant offered wide-ranging testimony in narrative form on direct examination."); Garth v. State, 411 S.W.3d 366, 373 (Mo. Ct. App. 2013) ("There is no duty for a trial court to inform a defendant acting pro se that he can testify in the narrative."); State v.......
  • Beasley v. Buckner
    • United States
    • U.S. District Court — Eastern District of Missouri
    • April 30, 2020
    ...had access to multiple carts of legal materials, but simply did not have unlimited access to the best library. SeeGarth v. State, 411 S.W.3d 366, 370-71 (Mo. App. E.D. 2013). Movant even acknowledged that there were at least four carts - each containing approximately 30-80 legal reference b......
  • Davis v. State
    • United States
    • Missouri Court of Appeals
    • April 20, 2021
    ...a pro se defendant, but also by other alternative means, including proffering assistance from available counsel." Garth v. State , 411 S.W.3d 366, 372 (Mo. App. E.D. 2013).On the day of his jury trial, Movant insisted on proceeding pro se. Before voir dire, Movant refused to be present for ......
  • State v. Mignone
    • United States
    • Missouri Court of Appeals
    • October 22, 2013

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