Glass v. State

• Decision Date: 06 July 2007
• Docket Number: No. SC 87852.,SC 87852.
• Citation: 227 S.W.3d 463
• Parties: Travis E. GLASS, Appellant/Cross-Respondent, v. STATE of Missouri, Respondent/Cross-Appellant.
• Court: Missouri Supreme Court

227 S.W.3d 463

Travis E. GLASS, Appellant/Cross-Respondent, v. STATE of Missouri, Respondent/Cross-Appellant.

No. SC 87852.

Supreme Court of Missouri, En Banc.

July 6, 2007.

Melinda K. Pendergraph, Office of the Public Defender, Columbia, for Appellant/Cross-Respondent.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Stephanie M. Morrell, Asst. Atty. Gen., Jefferson City, for Respondent/Cross-Appellant.

RICHARD B. TEITELMAN, Judge.

Travis Glass was convicted of first-degree murder, section 565.020, RSMo 2000, and was sentenced to death. This Court affirmed the conviction and sentence in State v. Glass, 136 S.W.3d 496 (Mo. banc 2004), cert. denied, 543 U.S. 1058, 125 S.Ct. 869, 160 L.Ed.2d 784 (2005). Glass filed a Rule 29.15 motion for post-conviction relief alleging ineffective assistance of trial and appellate counsel. The motion court granted a hearing on all claims except whether Missouri's lethal injection procedures violated the prohibition against cruel and unusual punishment. The court denied guilt phase relief and granted penalty phase relief. Glass appeals the denial of guilt phase relief. The state appeals the grant of penalty phase relief. This Court has jurisdiction. Mo. Const. art. V, section 10; order of June 16, 1988. The judgment is affirmed.

FACTS

The facts of this case are set forth in detail in State v. Glass, 136 S.W.3d 496 (Mo. banc 2004). In summary, Glass was taken in for questioning for the murder of Steffani Wilkins and he confessed to the crime. DNA material extracted from blood found on Glass' license plate, jeans found in the backseat of Glass' car, and a hair from the trunk of Glass' car was consistent with Wilkins' DNA profile. Glass was convicted of the murder and sentenced to death.

Following his direct appeal, Glass filed a motion for post-conviction relief under Rule 29.15. The motion court granted penalty phase relief on three issues. The court found that trial counsel was ineffective for failing to: (1) object to an improper jury instruction explaining the aggravating circumstance of kidnapping; (2) investigate and present mitigating evidence; and (3) investigate and present expert testimony in mitigation. The motion court denied the claims relating to all guilt phase issues and the remaining penalty phase issues.

ANALYSIS

To prove that counsel was ineffective, a defendant must show that counsel's performance "did not conform to the degree of skill, care, and diligence of a reasonably competent attorney" and that the defendant was thereby prejudiced. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). This Court presumes that counsel acted professionally in making decisions and that any challenged action was a part of counsel's sound trial strategy. State v. Tokar, 918 S.W.2d 753, 766, 768 (Mo. banc 1996).

To demonstrate prejudice, a defendant must show that, but for counsel's poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different. Id. A "defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice. . . ." Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). Rather, the question is whether the deficiency "undermines confidence in the outcome of the trial." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

The motion court's judgment on these issues is reviewed for clear error. Sams v. State, 980 S.W.2d 294, 296 (Mo. banc 1998). The court's findings and conclusions will be held to be clearly erroneous only if this Court is left with the definite and firm impression that a mistake has been made. Id.

I. Penalty Phase Relief

1. Failure to Investigate and Present Mitigation Evidence

During the penalty phase, Glass' trial counsel called ten witnesses to provide mitigation evidence. These witnesses included Glass' family members, friends, and former employers and co-workers. Glass alleges that trial counsel was ineffective for failing to investigate and present additional testimony from former teachers and other professionals. The motion court agreed, finding that trial "counsel's failure to investigate and call school officials and prior professionals was deficient and prejudicial since jurors perceive non-family members as more `disinterested' witnesses."

To prove ineffective assistance for failure to call a witness, the defendant must show that: "(1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness's testimony would have produced a viable defense." Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004). Prevailing professional standards for capital defense work require counsel to "discover all reasonably available mitigating evidence . . ." Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). This includes "medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences." Id. "Virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances." Payne v. Tennessee, 501 U.S. 808, 822, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)).

Dr. Scherr — Glass' Treating Physician

The motion court found counsel ineffective for failing to elicit testimony from Dr. Barry Scherr, M.D. Dr. Scherr admitted Glass to the hospital for bacterial meningitis when Glass was 23 months old. The motion court found counsel's failure to interview and call Scherr "especially prejudicial" because the trial court had excluded Glass' medical records. It is not unreasonable to conclude that testimony regarding the long-term effects of meningitis would have provided mitigating evidence of Glass' impaired mental functioning. The state contends that this information was before the jury through Glass' aunt. However, as the motion court explained, Glass' aunt admitted that she was "not a doctor" and "didn't know" if meningitis had any effect on Glass.

The motion court did not clearly err in determining that counsel was ineffective for failing to elicit Dr. Scherr's testimony. The failure to call a treating physician who would have testified about Glass' impaired intellectual functioning can be prejudicial as such evidence can be inherently mitigating and critical to the jury's assessment of whether to impose the death penalty. Hutchison v. State, 150 S.W.3d 292, 297 (Mo. banc 2004).

Teachers — Impaired Intellectual Functioning

The motion court also found counsel ineffective for not eliciting testimony from Glass' former teachers, each of whom would have testified regarding Glass' impaired intellectual functioning. The motion court found that several of Glass' teachers would have explained in detail that Glass exhibited significant difficulty in learning and that he had been harassed by other students for being overweight. The court found that all of these teachers were listed on Glass' school records and that counsel did not have a reasonable, strategic reason for not eliciting the teachers' testimony. The motion court did not clearly err in granting relief on this claim.

Probation Officers

The motion court found that counsel was ineffective for failing to adequately investigate and present mitigating testimony from Bruce Capp and Kevin Knickerbocker, who served as Glass' probation officers on a prior stealing conviction. At penalty phase, the state introduced, as aggravating evidence, a certified copy of Glass' prior conviction for felony stealing. As the motion court recognized, counsel has a duty "to neutralize the aggravating circumstances advanced by the state." Ervin v. State, 80 S.W.3d 817, 827 (Mo. banc 2002), and Wiggins v. Smith, 539 U.S. at 524, 123 S.Ct. 2527.

Bruce Capp supervised Glass' probation from late 1998 through early 2000 and they met once a month. Glass had no probation violations. Kevin Knickerbocker supervised Glass' probation after Capp. He, too, saw Glass once a month and, then, placed him in a program in which he supervised Glass through the mail. Glass had no probation violations until the charged offense. Both would have testified to Glass' good behavior and cooperation while on probation. Though counsel argued in closing that the murder was "simply out of character" for Glass and that the murder was committed while he was "extremely intoxicated," it was not unreasonable for the motion court to conclude that the officers' testimony would have supported this argument and reduced the prejudicial impact of Glass' prior stealing conviction. The motion court did not clearly err in granting relief on this claim.

While there are numerous opinions from this Court affirming a motion court's decision that counsel was not ineffective for declining to present the testimony of additional witnesses, many of these decisions are premised in large part upon the fact that this Court will defer to the motion court unless there is a showing of clear error. That same deferential standard of review applies where, as in this case, the motion court determines, after an evidentiary hearing, that the movant has made a valid claim of ineffective assistance. It is well-established that counsel has a duty to "discover all reasonably available mitigating evidence" in a death penalty case. Wiggins v. Smith, 539 U.S. at 524, 123 S.Ct. 2527. The motion court did not clearly err in finding that counsel was ineffective for failing to provide additional perspectives on...