Helmig v. State

• Decision Date: 23 January 2001
• Citation: 42 S.W.3d 658
• Parties: (Mo.App. E.D. 2001) Dale Helmig, Movant/Appellant, v. State of Missouri, Respondent/Respondent. ED76067 0
• Court: Missouri Court of Appeals

42 S.W.3d 658 (Mo.App. E.D. 2001)

Dale Helmig, Movant/Appellant, v. State of Missouri, Respondent/Respondent.

ED76067

Missouri Court of Appeals Eastern District

01/23/2001

Appeal From: Circuit Court of Gasconade County, Hon. Jack O. Edwards

Counsel for Appellant: Sean O'Brien, Jeremy Weis and Bronwyn Warner

Counsel for Respondent: John Morris, III, and Susan Glass

Opinion Summary: Movant Dale Helmig, who was convicted of the first-degree murder of his mother, appeals from the judgment denying his Rule 29.15 motion after an evidentiary hearing.

Division Two holds: (1) Trial counsel was not ineffective in failing to present witnesses who could not give him an alibi because they did not see him during the time that the murder could have been committed. (2) Trial counsel was not ineffective in failing to adduce additional evidence that Helmig's father had the motive or opportunity to commit the crime because a) none of the cited evidence directly connected the father to the crime and thus would not have been admissible and b) even though such evidence was inadmissible, counsel was successful in getting much of it admitted. (3) Trial counsel was not ineffective for failing to call witnesses who would attest to Helmig's past good relationship with the victim where additional evidence would have strengthened the state's theory that the murder occurred when Helmig's close, economically dependent relationship with victim was threatened. (4) Trial counsel was not ineffective for failure to rebut evidence of Helmig's guilty knowledge where Helmig did not show that there were not reasonable strategic reasons for not calling the identified witnesses. (5) Trial counsel was not ineffective for failing to object to evidence of Helmig's arrest where Helmig did not show that failure to object was not strategic. (6) The motion court did not clearly err in finding that Helmig did not prove a conflict of interest and did not prove that counsel acted detrimentally to his interests as a result of any conflict. (7) An issue not raised in the 29.15 motion is waived on appeal. (8) Trial counsel was not ineffective for failing to object to hearsay evidence where Helmig did not show that failure to object was not strategic. (9) Appellate counsel was not ineffective for failing to brief an unpreserved issue on appeal where counsel used the 100-page brief allowance to brief preserved issues. (10) The issue of prejudicial publicity, which was litigated and decided on motion for new trial and raised on direct appeal, cannot be relitigated in a 29.15 motion. (11) The record supports the motion court's findings that trial counsel did not give Helmig medication that impaired his ability to participate in his defense.

Kathianne Knaup Crane, Presiding Judge

Movant, Dale Helmig, appeals from the judgment of the circuit court denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We affirm.

A jury found movant guilty of one count of murder in the first degree, in violation of Section 565.020.1 RSMo (Cum. Supp. 1992), for the murder of his mother, Norma Helmig (victim). Victim's death had occurred in the early morning hours of July 29, 1993 and her nightgown-clad body was found in the Osage River on August 1, 1993, bound with a nylon cord which was attached to a concrete block. The prosecution's case was based on circumstantial evidence that movant had the means and opportunity to commit the crime and engaged in conduct and made statements after the crime which showed a consciousness of guilt, a desire to conceal his role in the offense, and unique knowledge of the details of the crime.

The trial court sentenced movant to life imprisonment without possibility of parole. Movant filed a direct appeal claiming insufficiency of the evidence. We affirmed movant's conviction without published opinion. State v. Helmig, 950 S.W.2d 649 (Mo. App. 1997). Movant then filed a pro se Rule 29.15 motion and appointed counsel filed an amended motion. Following an evidentiary hearing, at which movant did not testify, the motion court issued its findings of fact and conclusions of law denying relief.

Our review of the denial of a post-conviction motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996), cert. denied, 519 U.S. 1152, 117 S.Ct. 1088, 137 L.Ed.2d 222 (1997). Findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with a definite and firm impression that a mistake has been made. Id.

On appeal, movant challenges the denial of his post-conviction motion and claims that 1) trial counsel was ineffective in five different respects in failing to conduct a reasonable investigation and present evidence or object at trial; 2) trial counsel had an undisclosed conflict of interest which adversely affected his ability to represent defendant; 3) the prosecution suppressed material evidence; 4) trial counsel was ineffective in failing to object to prejudicial hearsay evidence and appellate counsel was ineffective for failing to brief on appeal the introduction over objection of other hearsay evidence which, taken together, constitute the only evidence of movant's motive; 5) trial counsel was ineffective for failing to request a continuance, change of venue, mistrial or other appropriate relief and for failing to present to the court the fact that jurors were exposed to media interviews of witnesses outside the courtroom; and 6) movant was deprived of his right to assist in his own defense, confront witnesses, and make informed, knowing and voluntary waivers of his rights because defense counsel instructed him to take and provided him with muscle relaxing medications prior to trial.

Rule 84.04(e) limits the argument portion of the brief to those errors included in the "Points Relied On." We determine only those questions stated in the points relied on. Boatmen's Bank v. Foster, 878 S.W.2d 506, 509 n4 (Mo. App. 1994). Accordingly, in addressing movant's points on appeal, we consider all arguments encompassed by each point relied on, but we do not consider arguments and issues raised in the argument portion of the brief which are not encompassed by the points relied on. Chancellor Development Co. v. Brand, 896 S.W.2d 672, 678 (Mo. App. 1995).

I. Ineffective Assistance of Counsel: Failure to Conduct a Reasonable Investigation and Present Evidence and Failure to Object

For his first point, movant asserts "that the motion court clearly erred in denying [movant's] motion under Rule 29.15 because trial counsel was ineffective . . . in that" A) he failed to conduct a reasonable investigation and present evidence undermining the state's case and supporting movant's alibi defense, B) he failed to conduct a reasonable investigation and present evidence implicating others in victim's death, C) he failed to conduct a reasonable investigation and present evidence to rebut the state's claim that movant and victim had a quarrelsome relationship, and D) he failed to conduct a reasonable investigation and present evidence to rebut the state's claim that movant "knew too much too soon" and made "suspicious statements and was therefore guilty of killing [victim], and E) that trial counsel failed to object to the state's evidence that movant was considered "armed and dangerous" and "could be violent" when arrested.¹

In order to prove ineffective assistance of counsel, movant must show that: 1) counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney; and 2) movant's defense was prejudiced by his counsel's poor performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998), cert. denied, 526 U.S. 1151, 119 S.Ct. 2034, 143 L.Ed.2d 1043 (1999). Movant must show both elements in order for the court to find the conviction "resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687.

Actions that constitute sound trial strategy are not grounds for ineffective assistance claims. Hall, 982 S.W.2d at 680. In order to satisfy the first prong, movant must overcome the presumption that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment. Id. The prejudice prong of the Strickland test is not presumed from a showing of deficient performance, but also must be affirmatively proved. Strickland, 466 U.S. at 693. Prejudice is not established by showing that trial counsel's errors had some conceivable effect on the outcome of the proceedings; rather movant must show a reasonable probability that the result would have been different but for the errors of counsel. Id. at 694, 104 S. Ct. at 2068.

"Ordinarily, the choice of witnesses is a matter of trial strategy and will support no claim of ineffective assistance of counsel." State v. Harris, 870 S.W.2d 798, 816 (Mo. banc), cert. denied, 513 U.S. 953, 115 S. Ct. 371, 130 L.Ed.2d 323 (1994). "This is because 'strategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.'" Id. at 816-17 (quoting Strickland, 466 U.S. at 690). Trial counsel may be ineffective for failure to locate and call witnesses, if the movant can establish 1) trial counsel knew or should have known of the existence of those witnesses, 2) that the witnesses could have been located through reasonable investigation, 3) that the witnesses would have testified if called, and 4) that their testimony would have provided a viable defense. Harris, 870 S.W.2d at 817.

Before we address the specific claims of ineffective assistance, we will set out counsel's strategies in order...