Gilmore v. State

Decision Date13 October 1987
Docket NumberNo. 52683,52683
Citation741 S.W.2d 704
PartiesGeorge C. GILMORE, Movant/Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Robert C. Wolfrum, Asst. Public Defender, St. Charles, for movant-appellant.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

SIMON, Judge.

Movant appeals the denial of his Rule 27.26 motion without an evidentiary hearing. We affirm in part and reverse and remand in part.

Movant was convicted by a jury of two counts of capital murder and was sentenced to death on each count. The Supreme Court affirmed the conviction in State v. Gilmore, 697 S.W.2d 172 (Mo. banc 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986). Movant filed a pro se Rule 27.26 motion. His appointed counsel filed an amended motion on movant's behalf. Any reference to the motion herein refers to the amended motion.

The facts of this case have been well-documented by our courts. See: State v. Gilmore, 650 S.W.2d 627 (Mo. banc 1985); State v. Gilmore, 697 S.W.2d 172 (Mo. banc 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986); State v. Laws, 661 S.W.2d 526 (Mo. banc 1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2401, 81 L.Ed.2d 357 (1984); and, Laws v. State, 708 S.W.2d 182 (Mo.App.1986). In fact, movant and Leonard Laws have made full use of the court system. See: State v. Gilmore, 661 S.W.2d 519 (Mo. banc 1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984); Gilmore v. State, 712 S.W.2d 438 (Mo.App.1986); State v. Gilmore, 681 S.W.2d 934 (Mo. banc 1984); Gilmore v. Missouri, 464 U.S. 1306, 104 S.Ct. 567, 78 L.Ed.2d 538 (Blackmun, Circuit Justice 1984) (granting stay of execution); State v. Laws, 668 S.W.2d 234 (Mo.App.1984); State v. Laws, 699 S.W.2d 102 (Mo.App.1985); Laws v. Missouri, 464 U.S. 1306, 104 S.Ct. 567, 78 L.Ed.2d 538 (Blackmun, Circuit Justice 1984) (granting stay of execution); Laws v. O'Brien, 718 S.W.2d 615 (Mo.App.1986) (legal malpractice case). As such, we will discuss the facts as the need arises in the course of the opinion.

Movant raises two points on appeal: (1) the motion court failed to make findings of fact and conclusions of law on all of the issues presented in his Rule 27.26 motion as required by Rule 27.26(i); and, (2) the motion court erred in denying movant an evidentiary hearing pursuant to Rule 27.26(e) because the allegations raised in his Rule 27.26 motion were not conclusively refuted by the record.

We note at the outset that our review is limited to determining whether the conclusions and the judgment of the motion court are clearly erroneous. Rule 27.26(j); Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986). Furthermore, the motion court's conclusions are clearly erroneous if a review of the entire record leaves us with a definite and firm impression that a mistake has been made. Richardson, 719 S.W.2d at 915.

Rule 27.26(i) provides that the motion court shall make findings of fact and conclusions of law on all issues presented. Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978). Where the findings of fact and conclusions of law sufficiently cover all points as to permit meaningful appellate review of the motion court's judgment, they are sufficiently specific. Leigh v. State, 673 S.W.2d 788, 790 (Mo.App.1984).

Further, to be entitled to an evidentiary hearing on a Rule 27.26 motion, the movant must: (1) allege facts, not conclusions, warranting relief; (2) the facts must raise matters which are not refuted by the record; and, (3) the matters complained of must have resulted in prejudice to the movant. Chapman v. State, 720 S.W.2d 17, 18 (Mo.App.1986).

Movant's Rule 27.26 motion consists of eight (8) parts. Part 1 sets forth eight (a to h) allegations of ineffective assistance of counsel. Part 2 sets forth four (a to d) allegations of essentially trial court error. Parts 3 and 4 contain allegations regarding the imposition of the death penalty. The allegation contained in Part 5 contends that Rule 30.30 is unconstitutional in that the execution date of July 22, 1986, was allowed to pass and a second date was later set. Part 6 contains allegations of trial court error and ineffective assistance of counsel surrounding the refusal to give an instruction. The allegation contained in Part 7 involves the trial court's refusal to allow a psychiatrist to aid movant. Part 8 incorporates by reference all of the allegations raised in movant's pro se motion. We will proceed allegation by allegation and address the following: (1) whether the motion court made sufficient findings of fact and conclusions of law to enable meaningful appellate review; and (2) whether such allegation is refuted by the record.

Movant's first allegation, number 1(a), is specifically addressed in the motion court's Finding of Fact number 14. The motion court properly cites to a portion of the trial transcript which clearly refutes the allegation. We find the motion court's conclusion is not clearly erroneous in regards to allegation number 1(a). See: Richardson, supra.

Allegation number 1(b) is not specifically mentioned anywhere in the Findings of Fact and Conclusions of Law of the motion court. Findings and conclusions cannot be supplied by implication from the motion court's ruling. Fields v. State, 572 S.W.2d at 483. The motion court should make specific findings and conclusions as to allegation number 1(b).

The allegations numbered 1(c) and 1(d) can be consolidated for review. The motion court makes specific mention of these allegations in its Finding of Fact number 15 and cites to authority which clearly refutes the allegations. Moreover, the allegations contained in numbers 1(c) and 1(d) indicate ineffective assistance of counsel during the guilt-innocence phase of the trial. We point out that movant dismissed both of his trial counselors immediately before the venirepersons were sworn. He proceeded pro se throughout the entire guilt-innocence phase of the trial. As such, movant cannot complain in his Rule 27.26 motion of ineffective assistance of trial counsel during the guilt-innocence phase of the trial. See: State v. Randall, 530 S.W.2d 407, 409 (Mo.App.1975); and, Gaye v. State, 576 S.W.2d 554, 556 (Mo.App.1978). We find the conclusion of the motion court is not clearly erroneous in regards to the allegations numbered 1(c) and 1(d). See: Richardson, supra.

Allegation number 1(e) must be split into two separate claims. Movant alleges therein ineffective assistance of trial counsel "before and/or during the trial." For the reasons stated in the foregoing paragraph, we will not entertain claims of ineffective assistance of trial counsel during the guilt-innocence phase of the trial. See: Randall, supra; and, Gaye, supra. Additionally, the motion court's finding of fact number 16 and conclusion of law number 4 addresses the inadequacy of counsel allegations during the punishment phase of the trial. A review of the record reveals that in representing movant, the trial judge acknowledged several times that trial counsel performed very competently. The motion court did not clearly err in the above finding. See: Richardson, supra. We find, however, there is no mention in the motion court's findings and conclusions which addresses the ineffective assistance of counsel allegation in number 1(e) before the trial. Once again, we will not supply findings and conclusions by implication. See: Fields, supra. The motion court should make specific findings of fact and conclusions of law in regards to the allegation contained in number 1(e) which concerns itself with ineffective assistance of counsel before the trial.

The allegations contained in number 1(f) are countered by Finding of Fact number 13. Once again, the motion court supplies us with appropriate citations to the trial transcript which refute the allegations. We find the court did not clearly err in its findings and conclusions regarding the allegations contained in number 1(f). See: Richardson, supra.

Furthermore, one of the allegations contained in number 1(f) alleges ineffective assistance of trial counsel. For the reasons stated above, allegations which involve ineffective assistance of trial counsel during the guilt-innocence phase of the trial need not be entertained. See: Randall, supra; and, Gaye, supra. The remaining allegations in number 1(f) concern ineffective assistance of appellate counsel. Claims of ineffective assistance of appellate counsel are not cognizable in a Rule 27.26 proceeding. Westmoreland v. State, 594 S.W.2d 596, 598 (Mo. banc 1980); Roulette v. State, 504 S.W.2d 331, 332 (Mo.App.1973).

The allegations contained in number 1(f) fail for other reasons, as well. The motion court's Finding of Fact number 11 and Conclusion of Law number 7 correctly point out that the allegations were raised and decided in movant's direct appeal. State v. Gilmore, 697 S.W.2d 172, 174-5 (Mo. banc 1985). Where an issue is raised and decided on direct appeal, the defendant cannot obtain another review thereof in a Rule 27.26 proceeding, even if the defendant has an additional citation to offer, or a different theory to suggest, or additional evidence which was not offered at the original trial. Gailes v. State, 454 S.W.2d 561, 563-4 (Mo.1970); Sweazea v. State, 515 S.W.2d 499, 501-2 (Mo. banc 1974). Finally, the allegations contained in number 1(f) need not be considered further because movant failed to argue the allegations in his brief. As such, movant waived review of number 1(f). Brown v. State, 492 S.W.2d 762 (Mo.1973).

Allegation number 1(g) is specifically addressed by the motion court in its Findings of Fact number 17. The allegation is further addressed in Finding of Fact number 16 and Conclusion of Law number 4. The motion court attached an exhibit to its Findings of Fact and...

To continue reading

Request your trial
8 cases
  • Malone v. State
    • United States
    • Missouri Court of Appeals
    • March 8, 1988
    ...meaningful appellate review of the motion court's judgment, the requirements of Rule 27.26(i) have been satisfied. Gilmore v. State, 741 S.W.2d 704, 706 (Mo.App.1987). See Mercer v. State, 666 S.W.2d 942, 947 (Mo.App.1984) and cases cited therein. Likewise, remand is not required for furthe......
  • State v. Berry, s. 16520
    • United States
    • Missouri Court of Appeals
    • October 30, 1990
    ...of trial error. Mere trial errors are to be corrected by direct appeal. Coney v. State, 491 S.W.2d 501, 506 (Mo.1973); Gilmore v. State, 741 S.W.2d 704, 707 (Mo.App.1987). Consequently, lawyer Price's failure to request an evidentiary hearing in the motion court did not prejudice appellant,......
  • Hufft v. State, 15586
    • United States
    • Missouri Court of Appeals
    • September 7, 1988
    ...v. Hufft, supra, at 296. Issues raised and decided on direct appeal cannot be relitigated in a Rule 27.26 proceeding. Gilmore v. State, 741 S.W.2d 704, 708 (Mo.App.1987). The issue of not declaring a "hung jury" mistrial was a matter for direct appeal and nothing appears in movant's motion ......
  • Hood v. State, 56412
    • United States
    • Missouri Court of Appeals
    • January 9, 1990
    ...are not cognizable in a postconviction proceeding. Rainwater v. State, 770 S.W.2d 368, 371 (Mo.App., W.D.1989); Gilmore v. State, 741 S.W.2d 704, 707 (Mo.App., E.D.1987). In order for movant to be entitled to relief based on such claims, he must prove that they amounted to constitutional vi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT