Grubbs v. State

• Decision Date: 15 November 1988
• Docket Number: No. 70693,70693
• Citation: Grubbs v. State, 760 S.W.2d 115 (Mo. 1988)
• Parties: Ricky Lee GRUBBS, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 115

760 S.W.2d 115

Ricky Lee GRUBBS, Plaintiff-Appellant, v.STATE of Missouri, Defendant-Respondent.

No. 70693.

Supreme Court of Missouri En Banc.

Nov. 15, 1988.

Rehearing Denied Dec. 13, 1988.

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

William L. Webster, Atty. Gen., Jared R. Cone, Asst. Atty. Gen., Jefferson City, for defendant-respondent.

HIGGINS, Judge.

Ricky Lee Grubbs was convicted by a jury of capital murder, § 565.001, RSMo 1978(repealed effective 10-1-84), and sentenced to death, § 565.008, RSMo 1978(repealed effective 10-1-84).The ensuing judgment was affirmed.State v. Grubbs, 724 S.W.2d 494(Mo. banc 1987), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 707(1987).Grubbs subsequently made a collateral attack on his conviction under Rule 27.26 alleging ineffective assistance of counsel and instructional error.The hearing court denied relief after an evidentiary hearing.The appeal to the Court of Appeals, Eastern District, was transferred to this Court.Judgment affirmed.

Movant alleges counsel was ineffective (1) for failing to present certain evidence in mitigation in the penalty phase of trial, (2) in failing to object and properly preserve objections to improper jury arguments by the prosecuting attorney, (3) in failing to strike a venireperson for cause because he was biased in favor of the death penalty, (4) for failing to properly make and preserve objections to testimony that his statement was the product of unlawful arrest and improper questioning, (5) in failing to object to testimony that he refused to make a statement, and (6) in failing to object to testimony regarding the blood on the carpet beneath the victim.Movant also alleges the trial court erred in failing to instruct on a lesser included offense of felony murder in the second degree.

The issue arising from these allegations is whether the denial of relief was clearly erroneous.Rule 27.26(j)(repealed effective 1-1-88);Futrell v. State, 667 S.W.2d 404, 405(Mo. banc 1984)."Such findings and conclusions are deemed clearly erroneous only 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.' "Sanders v. State, 738 S.W.2d 856, 857(Mo. banc 1987), quotingStokes v. State, 688 S.W.2d 19, 21(Mo.App.1985).

"In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and (2) that he was thereby prejudiced."Sandersat 857;Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 687(1984).

I.

Movant argues that the hearing court erred in finding he was not deprived of effective assistance of counsel under the sixth and fourteenth amendments due to counsel's failure to present certain evidence in mitigation.The record demonstrates that trial counsel had good reason not to present the so-called evidence in mitigation.Therefore, as a matter of trial strategy, the decision not to present the evidence will not support an ineffective assistance of counsel claim.Strickland;Covington v. State, 600 S.W.2d 186(Mo.App.1980).

II.

Movant claims the hearing court erred in holding he was not denied effective assistance of counsel when counsel failed to object or properly preserve objections to improper jury arguments by the prosecuting attorney regarding matters outside the record, parole and improper sentencing considerations.Discretion rests with the trial court in control of closing argument with wide latitude accorded counsel in their summations.State v. Wood, 596 S.W.2d 394, 403(Mo. banc 1980), cert. denied, 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98(1980).No abuse of discretion is shown.

A.

Movant argues that during the guilt phase of his trial the prosecuting attorney argued to the jury that based upon his review of the report brought to him by law enforcement officials, he personally determined that enough evidence existed to support a charge.Movant alleges this was improper because the prosecuting attorney was making personal assurance of special knowledge in arguing that a conviction was supported by matters outside the evidence.The prosecuting attorney stated:

The police officers and deputies and law enforcement agencies investigate crimes and gather evidence to prosecute people who commit crimes.That's the first step, the investigating step and that's where the law enforcement officials come in.The second step is when they bring the evidence and their reports to me and I determine, as Prosecuting Attorney, whether or not we have enough evidence to go forward in the prosecution of a person for the crime that he has been charged with.That's the second step.When the prosecutor or other appropriate authority decides that there is enough evidence and a charge is lodged against an individual then the third step takes place and that's the guilt or innocence phase....But Mr. Grubbs, the defendant in this case, is presumed to be innocent until he is proven guilty.It's what we call the presumption of innocence.

No objection was made to this argument.In State v. Roberts, 709 S.W.2d 857(Mo. banc 1986), cert. denied, 479 U.S. 946, 107 S.Ct. 427, 93 L.Ed.2d 378(1986), a direct appeal of a death sentence case, this Court noted where no objection was made to closing argument, "trial strategy is an important consideration and such assertions are generally denied without explication."Robertsat 866.Whether counsel's failure to object was a matter of trial strategy in this case need not be reached, however, because the hearing court found that movant was not prejudiced or the outcome of the trial affected in any way.Sandersat 857;Strickland466 U.S. at 687, 104 S.Ct. at 2064.

B.

During the penalty phase of movant's trial the prosecuting attorney made the following argument:

Now, the alternative, the alternative to the death penalty and no doubt there is an alternative, life without parole for fifty years.On its face that sounds like serious punishment and if on its face it would stand on its face it would be.But you don't think about pardon, commutation--

At that point defense counsel objected on the ground of improper argument.The court sustained the objection and instructed the jury to disregard it.Defense counsel moved for a mistrial but the court refused a mistrial.The matter was not pursued in the motion for new trial.Also during closing argument of the penalty phase of movant's trial the prosecuting attorney argued:

Also, folks, you have to consider if you impose life without probation or parole for fifty years, Ricky Grubbs is going to see his family....He's still got the benefit of life.Jerry Thornton doesn't have that.Jerry Thornton doesn't have the benefit of being with his brother, his sister-in-law, his mother.

Defense counsel objected on the ground of no identification of the people in the courtroom.The court sustained the objection and instructed the jury to disregard it.No motion for mistrial was made and the matter was not pursued in motion for new trial.

Movant argues the failure to preserve the objections to these two arguments for appeal amounts to ineffective assistance of counsel and that had these arguments not been made, movant would not have received the death penalty.The hearing court found movant failed to demonstrate he was prejudiced by the above argument.Movant has not shown that, but for the presentation of the arguments above, he would not have received the death penalty.In each situation counsel objected and the court sustained the objection and instructed the jury to disregard the comment."And it is presumed that the jury will properly follow the instructions as given."State v. Preston, 673 S.W.2d 1, 7(Mo. banc 1984), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205(1984).Because of the presumption the jurors followed the court's instruction to disregard the arguments, the prejudice requirement of Strickland is not met and denial of relief on these grounds was proper.Sanders, at 857;Strickland, 466 U.S. at 687; 104 S.Ct. at 2064.

C.

Movant argues trial counsel's failure to object to the statement of the prosecuting attorney during the penalty phase of his trial that, "[t]his is one of the most vicious attacks on an individual I've seen" denied him effective assistance of counsel.The state responds that this argument was appropriate because it was directed to the allegation of depravity in the penalty phase of the trial and supported by the record.The appropriateness of this isolated statement in the middle of a long closing argument merits consideration of competing principles.A prosecuting attorney may not express an opinion implying awareness of facts not available to the jury.State v. Moore, 428 S.W.2d 563, 565(Mo.1968).Balanced against this rule, however, is the proposition that the prosecuting attorney may state his conclusion if it is fairly drawn from the evidence, and his inferences need not seem necessarily warranted.State v. Jackson, 499 S.W.2d 467, 471(Mo.1973);State v. Jones, 491 S.W.2d 271, 273(Mo.1973); State v. Moore;State v. Haynes, 528 S.W.2d 11, 13(Mo.App.1975).

Here, the question of guilt had been decided.Only the questions of aggravation and mitigation going to the issue of punishment remained.The details of Jerry Thornton's murder are set forth in this Court's opinion in Grubbs, at 494, and need not be restated.The prosecuting attorney's statement was directed to the allegation of depravity, a condition which was supported by the evidence.The record demonstrated the victim was found with his hands and feet bound together with neckties."The victim suffered massive injuries to his upper torso, including thirteen broken ribs and cracked sternum; a...