Honeycutt v. State, WD58306

• Decision Date: 17 July 2001
• Docket Number: WD58306
• Citation: Honeycutt v. State, 54 S.W.3d 633 (Mo. App. 2001)
• Parties: Paul Maxwell Honeycutt, Appellant v. State of Missouri, Respondent. WD58306 Missouri Court of Appeals Western District 0
• Court: Missouri Court of Appeals

Paul Maxwell Honeycutt, Appellant v State of Missouri, Respondent

WD58306

Missouri Court of Appeals Western District

07/17/2001

Appeal From: Circuit Court of Platte County, Hon. Abe Shafer, IV

Counsel for Appellant: Andrew Schroeder

Counsel for Respondent: Philip M. Koppe

Opinion Summary: Paul Honeycutt appeals the denial of his Rule 29.15 motion for postconviction relief. He contends that his defense trial attorney was constitutionally ineffective in failing to call an expert witness who would have established a "diminished capacity" partial defense. He also contends that his defense appellate attorney was ineffective in failing to raise on appeal an argument that the trial court committed plain error in failing to inquire into and rule upon Honeycutt's pro se motion to dismiss his trial attorney.

Division holds: (1) Counsel's overall performance was not constitutionally defective. Counsel understood, from talking to Dr. Logan, that in order to establish a diminished capacity partial defense, he would need to locate several witnesses who could substantiate the notion that Honeycutt believed Ms. Bolsenga was trying to poison him. Counsel was unable to locate the witnesses in question. Counsel also made the strategic decision not to present Dr. Logan to testify as to Honeycutt's mental illness because he believed that would provoke the admission of evidence by two psychologists who believed Honeycutt was adept at feigning mental illness. Counsel's strategy was not unreasonable.

(2) Defense appellate counsel was not constitutionally ineffective in failing to argue that the trial court committed plain error in failing to inquire into and rule upon Honeycutt's pro se motion to dismiss his trial attorney because there was nothing in the record to support a claim of an irreconcilable conflict of Honeycutt with his attorney, and because appellate counsel could not have prevailed on that issue.

Smart, Jr., P.J., Spinden, C.J., and Breckenridge, J.

PER CURIAM

Paul Honeycutt appeals the hearing court's January 26, 2000, denial of his Rule 29.15 Motion for Postconviction Relief following an evidentiary hearing. Honeycutt was convicted after a jury trial of one count of murder in the first degree, pursuant to Section 565.020, RSMo 1994, and one count of armed criminal action, pursuant to Section 571.015. On October 3, 1996, Honeycutt was sentenced to consecutive terms of life imprisonment without the possibility of probation or parole on the murder charge and to one thousand years' imprisonment on the armed criminal action charge. Honeycutt appeals on the grounds that he was denied his right to effective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 1, Sections 10 and 18(a) of the Missouri Constitution. The judgment is affirmed.

Factual Background

In April of 1995, Honeycutt and Cheryl Bolsenga were living in a second-floor apartment in Parkville, Missouri. Around 9:30 p.m., on the evening of April 7, 1995, the neighbors heard loud voices and sounds of arguing coming from the couple's apartment. Eventually, the apartment manager went to Honeycutt's door and told them to quiet down. As the apartment manager was leaving the apartment, the manager heard the sound of a pump-action shotgun and the first of several gunshots. While the manager was at the apartment, a neighbor had positioned himself to look into the window of the apartment and saw a man fire a gun twice. As a police officer arrived, Honeycutt stood in the window with a shotgun. After receiving an order to put down the weapon, he did so, and voluntarily came out. When the police entered the apartment they found the body of Ms. Bolsenga lying on a bed next to the wall; she had been shot three times. Honeycutt told police as he was getting into the patrol car, "She was messin' around with guys around here and I got tired of it and I did it. I just got mad."

Before trial, mental evaluations were conducted by Richard Gowdy, Ph.D., and William Holcomb, Ph.D. Both found Honeycutt competent to stand trial, and found he was not entitled to assert the defense of mental disease or defect excluding responsibility. In August 1996, Honeycutt's defense counsel persuaded the court to order another examination, this time by a psychiatrist in private practice. Counsel hired William S. Logan, a diplomate of the American Board of Psychiatry and Neurology and also a diplomate of the American Board of Forensic Psychiatry. Dr. Logan was informed of Mr. Honeycutt's extensive mental health history. He requested all pertinent records. On August 26, 1996, Dr. Logan received some of the records related to Honeycutt's history and treatment, but other records were not forwarded by the state facility, except for summaries which had been prepared by Dr. Gowdy and Dr. Holcomb. Dr. Logan did not receive copies of investigative reports related to the homicide; and, because of time pressure to complete his report, again, relied on summaries provided by Dr. Gowdy. Dr. Logan interviewed Honeycutt on August 27 and prepared a twenty-seven page report, dated August 30, 1996. Dr. Logan concluded that Honeycutt suffered from schizoaffective disorder with borderline intellectual functioning. Dr. Logan agreed with the psychologists that Honeycutt was not so compromised by these conditions that he was unable to appreciate the nature, quality, and wrongfulness of his conduct. He believed Honeycutt may have been paranoid, labile, and explosive, but was not so mentally ill he could not control his conduct at the time of the shooting. Dr. Logan, however, unlike the psychologists, expressed doubt about Honeycutt's competence to stand trial at that time due to his emotional lability, despondency, low intelligence, and suspicions concerning his attorney. Dr. Logan criticized the opinions of Dr. Gowdy and Dr. Holcomb that Honeycutt was feigning mental illness, setting out in detail his reasons for disagreement. Although he had not been asked about diminished capacity with regard to the issue of deliberation, Dr. Logan indicated that if he had more information in the form of the investigative reports, he might be able to express an opinion on the issue of diminished capacity:

I would defer an opinion concerning any diminished capacity to premeditate or deliberate at the time of the offense until there has been an opportunity to review the investigative reports. From Mr. Honeycutt's description of his behavior he was not so mentally ill or intoxicated he could not control his behavior generally. He may have been paranoid, labile, and explosive, however.

Dr. Logan indicated to Honeycutt's counsel that Honeycutt had told the doctor that Honeycutt believed Cheryl Bolsenga was trying to poison him. Dr. Logan informed the attorney, Gary Allen, that if several other persons could verify that Honeycutt had made sufficient statements about the poisoning to them, it could help establish a defense. Otherwise, it would appear that Honeycutt was lying. Thereafter, Mr. Allen made attempts at contacting people who might be able to verify that Honeycutt had made statements about the alleged attempts at poisoning. He was unable to get an address for one of them. Mr. Allen was able to contact one other, Steve Bell, but, according to counsel, Mr. Bell was not able to substantiate that Honeycutt had made any such remarks. Counsel decided at that point it would not be fruitful to pursue the matter further.

On September 3, 1996, upon receipt of Dr. Logan's report, counsel sought a continuance because of Dr. Logan's doubts about Honeycutt's competence to stand trial at that time. On September 5, the court convened a hearing, reviewed Dr. Logan's conclusions, and heard testimony from Dr. Holcomb, who testified that in his opinion Honeycutt clearly understood the trial process and the charges against him and was competent to assist in his trial. Holcomb testified Honeycutt was adept at contriving symptoms of mental illness and was a "malingerer." After considering the evidence, the court denied the motion, and the case proceeded to trial on September 9.

At trial, the appellant took the stand against counsel's advice and testified that he shot his girlfriend, not because she was "messin' around," but because she admitted attempting to poison him, and at that point he "snapped" and "unloaded." He denied making any statements to police about shooting her because she was "messin' around." He also made some extraordinary statements and called his counsel a "son of a bitch" in front of the jurors. He was convicted of first degree murder and armed criminal action.

In his Rule 29.15 motion for postconviction relief, Honeycutt asserted that his trial counsel was ineffective for (1) failing to request expert witness Dr. Logan to render an opinion as to whether Honeycutt suffered from a diminished capacity on the date of the alleged offense; and (2) not presenting Dr. Logan's expert testimony at trial as evidence that Honeycutt was unable to deliberate when he shot and killed the victim.

Counsel testified at the 29.15 hearing that he was unable to locate one of the three witnesses who supposedly heard Honeycutt make such statements, despite working through an investigator. He was able to contact one of the other individuals, Steve Beck or Steve Bell, but that the witness told counsel he knew nothing about any such statements. At that point, with the time short before trial, and having only one other name to follow up on, and thus far having no witnesses who could testify that the appellant had mentioned the "alleged poisoning situation" to them, defense counsel made a decision that a defense of insanity would not be viable, because Dr. Logan's own parameters had not allowed it.

Dr. Logan testified at the Rule 29.15 hearing that he had recently, after additional study, reached the conclusion that Honeycutt, because of his schizoaffective...