Gray v. State

• Citation: 139 S.W.3d 617
• Decision Date: 30 July 2004
• Docket Number: No. WD 62949.,WD 62949.
• Parties: Deandrea GRAY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

139 S.W.3d 617

Deandrea GRAY, Appellant, v. STATE of Missouri, Respondent.

No. WD 62949.

Missouri Court of Appeals, Western District.

July 30, 2004.

Appeal from the Circuit Court, Jackson County, Kelly J. Moorhouse, J Susan L. Hogan, Kansas City, MO, for appellant.

Andrea K. Spillars, Assistant Attorney General, Jefferson City, MO, for respondent.

Before BRECKENRIDGE, P.J., HOWARD and SMART, JJ.

PATRICIA BRECKENRIDGE, Presiding Judge.

Deandrea Gray appeals the denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Mr. Gray was convicted of the class B felony of assault in the first degree, under section 565.050, RSMo 2000,¹ and the class A felony of armed criminal action, under section 571.015. On appeal, Mr. Gray argues that he alleged sufficient facts entitling him to a hearing on his claims that his trial counsel was ineffective for failing to take timely steps to obtain the clothing that he was wearing at the time of his arrest; failing to impeach two of the State's witnesses and cross-examine another witness about inconsistencies; and failing to investigate and call three witnesses.

This court finds that Mr. Gray's allegations concerning his trial counsel's failure to obtain his clothing were insufficient to warrant relief, and his allegations concerning his trial counsel's failure to raise inconsistencies were refuted by the record. Additionally, Mr. Gray's allegations concerning his trial counsel's failure to investigate and call as witnesses the mother and father of the co-participant in the crime were insufficient to warrant relief. The judgment denying those claims without an evidentiary hearing is affirmed. Mr. Gray's allegations concerning his trial counsel's failure to investigate and call the co-participant in the crime were sufficient to warrant an evidentiary hearing. Therefore, the denial of Mr. Gray's claim that his trial counsel was ineffective for failing to investigate and call the co-participant in the crime is reversed, and the cause is remanded to the motion court for an evidentiary hearing on this claim.

Factual and Procedural Background

On the morning of April 24, 1997, William Smith, an ex-convict working with the Kansas City Missouri Police Department as a confidential informant, called Detective Mark Sumpter and suggested that they attempt to purchase crack cocaine at a drug house from where Mr. Smith had previously bought drugs. Detective Sumpter and Mr. Smith went to the drug house, which was an apartment building, later that afternoon. Detective Sumpter parked his car in front of the building. Other undercover officers parked their cars in the area.

Detective Sumpter placed a listening device on Mr. Smith and sent him to the apartment building. Mr. Smith knocked on the door. Mr. Gray and Arnett Kelley came to the door, stepped outside, and began talking to Mr. Smith. Mr. Kelley told Mr. Smith, "I've been looking for you. Come on in." Mr. Smith went inside. Once inside, Mr. Smith gave Mr. Kelley $20 and asked for "two dimes," which is two pieces of crack cocaine. Mr. Kelley told Mr. Smith to wait in the landing area at the bottom of the stairs while Mr. Kelley walked upstairs. Mr. Smith waited on the landing with Mr. Gray, who sat on the stairs.

Moments later, Mr. Kelley was standing at the top of the stairs, holding a rifle. Mr. Kelley accused Mr. Smith of having broken into his house in the past. Mr. Kelley then walked down the stairs, firing shots at Mr. Smith. While this was happening, Mr. Gray crouched down on the steps. Mr. Smith was struck by six bullets — two in his left leg, two in his right leg, one in his hip, and one in his back. As he was being shot, Mr. Smith attempted to get out the door. He was able to open the door a crack and was trying to crawl out the door when Mr. Gray grabbed him from behind and pulled him back inside. Mr. Gray and Mr. Kelley proceeded to beat Mr. Smith on the front and back of his head with the butt of the rifle until Mr. Smith lost consciousness.

Meanwhile, after hearing gunshots and seeing Mr. Smith attempt to crawl out the door, Detective Sumpter called for back-up. Detective Sumpter then saw Mr. Gray and two other men come out of the apartment. Detective Sumpter followed the three men into an alley. When a police car with its lights and sirens on drove by, the three men split up and began running. Detective Sumpter followed Mr. Gray, who ran into a restroom in the back of a laundromat. Detective Sumpter arrested Mr. Gray. Mr. Kelley and the third man, Melvin Backmon, were arrested by other officers.

The next day, Detectives Michael Luster and Harold Headrick went to the hospital to show Mr. Smith a photospread. When the detectives asked whether he could identify anyone in the pictures, Mr. Smith identified Mr. Kelley as the gunman, Mr. Gray as the man who pulled him back into the apartment and participated in beating him, and Mr. Backmon as someone he recognized from the neighborhood. Mr. Smith's injuries left him confined to a wheelchair, able to walk only very little.

The State charged Mr. Gray, as a prior and persistent offender, with assault in the first degree and armed criminal action. A jury convicted him on both counts. The court sentenced him to twelve years in prison for first degree assault and three years in prison on the armed criminal action charge, to be served concurrently.² Mr. Gray's convictions and sentences were affirmed on direct appeal in State v. Gray, 24 S.W.3d 204 (Mo.App.2000).

Mr. Gray subsequently filed a pro se Rule 29.15 motion for post-conviction relief, which was later amended by appointed counsel. In his amended motion, Mr. Gray alleged that his trial counsel was ineffective for, among other things, failing to take timely steps to obtain the clothing that he was wearing at the time of his arrest; failing to impeach Detective Sumpter and Mr. Smith with their inconsistent pre-trial statements; failing to cross-examine Detective Luster to show that Mr. Gray did not fit the description Mr. Smith gave of the assailant who participated in beating him; and failing to call Mr. Kelley and Mr. Kelley's mother and father to testify that Mr. Gray did not know or associate with Mr. Kelley. The court denied Mr. Gray's motion without an evidentiary hearing. Mr. Gray appeals.

Standard of Review

In reviewing the denial of a motion for post-conviction relief, this court is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). Such a finding will be made if, after a review of the entire record, the appellate court "is left with the definite and firm impression that a mistake has been made." Id. To prevail on an ineffective assistance of counsel claim, a movant must establish that counsel's performance did not meet the same degree of skill, care, and diligence of a reasonably competent attorney and movant 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)). "To demonstrate prejudice, a movant 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." Barnett v. State, 103 S.W.3d 765, 768-69 (Mo. banc), cert. denied, ___ U.S. ___ 124 S.Ct. 172, 157 L.Ed.2d 114 (2003). "`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Deck v. State, 68 S.W.3d 418, 426 (Mo. banc 2002) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).

Unlike when reviewing other civil pleadings, "courts will not draw factual inferences or implications in a Rule 29.15 motion from bare conclusions or from a prayer for relief." Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000). Thus, an evidentiary hearing on a motion for post-conviction relief is required only if the movant satisfies three requirements: (1) the movant must plead facts, not conclusions, which, if true, would warrant relief; (2) the facts pled must not be refuted by the record; and (3) the movant must have been prejudiced. Id. at 822-23. "All three of these prongs must be present, otherwise the motion court may deny an evidentiary hearing." Edwards v. State, 954 S.W.2d 403, 408 (Mo.App.1997).

Allegations Insufficient on Claim of Failure to Retrieve Clothing

In his first point, Mr. Gray argues that he was entitled to an evidentiary hearing on his claim that his trial counsel was ineffective for failing to retrieve his clothing from the correctional center. Mr. Gray alleged in his motion that he asked his trial counsel to obtain from the correctional center the clothing he was wearing on the date of the offense. He wanted the clothing examined to determine whether there was any sign of blood on it and to show that his clothing did not fit the description that Mr. Smith gave of the clothing worn by his assailants. Mr. Gray further alleged that his trial counsel said that she would send someone to pick up his clothing from the prison. Because his trial counsel's investigator did not pick up the clothing within ten days of Mr. Gray's arrival at the prison, however, the clothing was donated to charity and could not be retrieved. Mr. Gray contended that the testimony of his trial counsel and her secretary and investigator would support his allegations. He attached memoranda from trial counsel's secretary and investigator detailing their inquiries to the prison regarding obtaining Mr. Gray's clothing.

The crux of Mr. Gray's claim is that his trial counsel was ineffective for not attempting to obtain his clothing within ten days of his arrival at the prison on December 3, 1997. Nowhere in his motion, however, does he allege that counsel was aware that she had only ten days to obtain his clothing, or that a reasonably competent attorney would have known of the ten-day deadline. The...