Gill v. State
| Decision Date | 01 December 2009 |
| Docket Number | No. SC 89831.,SC 89831. |
| Citation | 300 S.W.3d 225 |
| Parties | Mark GILL, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
William J. Swift, Office of the Public Defender, Columbia, MO, for appellant.
Chris Koster, Attorney General, James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for respondent.
Mark Gill was convicted of first-degree murder by a New Madrid County jury.1 The jury recommended the death penalty, and the trial court agreed, sentencing Gill to death. This Court affirmed the conviction in State v. Gill, 167 S.W.3d 184 (Mo. banc 2005). Gill sought post-conviction relief by a Rule 29.15 motion, claiming prosecutorial misconduct and ineffective assistance of counsel. The motion court issued an order denying each of his claims. He appeals. Because the death penalty was imposed, this Court has jurisdiction of the appeal. Mo. Const. art. V, sec. 10; Order of June 16, 1988.
Among the issues in this case is whether Gill's counsel provided ineffective assistance of counsel by failing to review carefully the directory of the victim's computer, which contained child pornography, or by not interviewing or deposing the investigator who prepared the directory.
Although a victim's character is not typically an issue, when the State introduced evidence of the victim's good character in the penalty phase, Gill's counsel should have rebutted the State's good character evidence with the sexually explicit contents of the victim's computer. Because his counsel failed to discover the sexually explicit contents of the victim's computer, Gill's counsel were ineffective. This Court affirms the denial of the Rule 29.15 motion as to the guilt phase of the trial, but reverses the denial of the motion as to the penalty phase insofar as Gill had ineffective assistance of counsel for failing to investigate the victim's computer. The case is remanded.
Defense counsel David Kenyon and Sharon Turlington did the majority of Gill's trial preparation, including reviewing the documents provided in discovery. Among the documents received were several reports authored by Lt. David James of the Cape Girardeau County Sheriff's Department. Lt. James prepared the probable cause statement, which stated that "[Gill] had [the victim's] computer in the car with him at the time of his arrest." Lt. James's name also appeared on several police reports as the supervisor giving other officers investigative assignments. In addition, the State included Lt. James as a witness in the second amended information.
In addition to his work as the officer in charge of the investigation, Lt. James prepared a report, which was a listing of all the file folders or directories on the victim's computer.2 Approximately a month prior to trial, the prosecutor sent defense counsel a copy of the report for their review.
The report included a list of instant message accounts and a list of the users with whom the accounts exchanged messages. User name "dogday_afternoon2002" exchanged messages with 16 other users: (1) "a_slutty18girl_w38c," (2) "blackstamina69," (3) "cherie_012," (4) "daddoesme15," (5) "elena_ita_girl," (6) "jbnrbi," (7) "jenny_cappa," (8) "kellieann1980," (9) "kelly1_15_1999," (10) "lilnichole14," (11) "lobowolf1960," (12) "msdiane69," (13) "sweet_tasting_slute," (14) "sweetgirl4older," (15) "sweetpiece123," and (16) "tiffyfreemont11."
Defense counsel reviewed the report prior to trial but did not notice anything that would have alerted them to the presence of pornography on the computer. In addition to reviewing the report, Gill's counsel spoke with the prosecutor about the computer's contents. Their discussions with the prosecutor focused on whether the computer contained (1) anything possibly incriminating and (2) any e-mails that implicated another potential defendant. The prosecutor assured defense counsel that there was nothing on the computer that he planned to use in the case or that implicated another potential defendant. Relying on the prosecutor's assertions, defense counsel decided to focus their attention away from the computer's contents.
The prosecutor presented five witnesses during the penalty phase of Gill's trial. Sgt. Eric Friedrich testified as to Gill's prior convictions. The other four witnesses, all relatives of the victim, testified as to how the victim's death affected their lives and to the victim's good character.
First, the victim's sister identified a family photograph album chronicling the victim's life. She also read her prepared impact statement to the jury and spoke about the victim's role in her life, including defending her against other children. She stated how proud the victim was of his daughter when she was born. She said that the image of him cradling his daughter when she was an infant reminded her of a "Mr. Mom." Additionally, she spoke about the victim's generosity with his money.
Second, the victim's brother-in-law testified about his relationship with the victim. The first day they met, the victim helped him push his car to a gas station. When he and his wife wanted to marry, the victim reassured their uneasy family about the couple's decision. The brother-in-law testified that he and the victim studied "the West, the mythical West, and the true West, for years and years," including the characters who taught valuable life lessons, such as "[y]ou don't cheat at cards" and "you don't start any trouble, but you stand up to it when it comes."
Third, the victim's brother read a prepared statement to the jury. He recalled their childhood relationship and how the victim had helped him throughout their adolescent years. As adults, they kept in touch. During one visit, the brother learned that the victim was having serious financial problems because he had been generous with his money, including lending a friend money to pay for his wife's funeral. The brother concluded his statement by paraphrasing Abraham Lincoln's Gettysburg Address: He said that this paraphrase described his memories of the victim.
Fourth, the victim's 17-year-old daughter testified. She told the jury of the impact of her father's death. She indicated that she stays awake at night thinking about how he was murdered. When asked about how her life will be different now that her father was murdered, she replied,
Lt. James testified at the Rule 29.15 hearing that he knew there was pornography on the computer within a few days of creating the report. Before Gill's trial, he looked at the transcript of the instant message conversation about the 17-year-old daughter. Yet Gill's counsel testified that they chose not to interview or depose Lt. James. Defense counsel testified that while Lt. James was the officer in charge, they chose not to interview or depose him because he did not conduct the investigation himself and would be of little use at trial because his testimony would be hearsay.
Lt. James never told the prosecutor about the instant message conversation prior to Gill's trial because he did not think it was relevant to the case. In fact, the first time he told anyone about the computer's sexual contents was after Gill's trial when Brown's counsel asked about child pornography on the computer. Lt. James then told the prosecutor that the computer contained child pornography, bestiality content, and instant message conversations.
Prior to Brown's trial, his counsel requested a copy of the contents of the victim's computer and had its hard drive, including the Internet history, reviewed by a computer analyst.3 The analyst testified at Gill's Rule 29.15 hearing as to his findings. The analyst used software to decode instant messages sent from and received by the victim's computer. On each of the instant messaging files, the profile "dogday_afternoon2002" was used. All six conversations were sexually explicit, and four of those conversations included references to sex with underage girls. In one particular conversation, "dogday_afternoon2002" wrote about a 17-year-old daughter named Megan and described her as "5'7" ... 140 ... blonde hair ... blue eyes ... that tight teen girl ass ... 38c." The conversation goes on to describe Megan's anatomy in detail, and then "dogday_afternoon2002" says that he and Megan only do "touchy feely things, but I sure want more."
In addition to decoding the instant messages, the analyst also investigated the Yahoo! profiles found on the computer, including the "dogday_afternoon2002" profile. The basic information listed for the profile revealed the following information about the user: real name—Ralph, age— 45, marital status—divorced, gender— male, and occupation—retired. The profile also revealed that the user's hobbies were "boating, fishing, camping, socializing with friends, drinking beer on my boat, Oh, and sex, all kinds, except I don't do men." The user also wrote in his profile that he has a new boat and to "come take a ride with me." Moreover, the user included a picture with his profile, which was an image of a white male from his navel to his feet with his penis exposed.
The analyst also found child pornography images and bestiality content on the victim's computer. The analyst described several of the child pornography images he found on the victim's computer. The pictures were of nude females who appeared to be younger than 18 in sexual poses. Some of the females were sexually developed, while others were sexually undeveloped.
Brown's defense counsel told ...
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