Johns v. State, 52487

• Decision Date: 03 November 1987
• Docket Number: No. 52487,52487
• Citation: 741 S.W.2d 771
• Parties: Stephen JOHNS, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 771

741 S.W.2d 771

Stephen JOHNS, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.

No. 52487.

Missouri Court of Appeals,

Eastern District,

Division Two.

Nov. 3, 1987.

Motion for Rehearing and/or Transfer Denied Dec. 10, 1987.

Application to Transfer Denied Jan. 20, 1988.

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

William L. Webster, Atty. Gen., Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, for defendant-respondent.

PUDLOWSKI, Judge.

Movant was convicted of capital murder after a jury trial and sentenced to death. His conviction was affirmed on direct appeal by the Missouri Supreme Court in State v. Johns, 679 S.W.2d 253 (Mo. banc 1984) which contains a detailed discussion of the murder. Movant subsequently filed a pro se Rule 27.26 motion and counsel was appointed. An evidentiary hearing on the allegations in movant's petition was held in the Circuit Court in the City of St. Louis on June 13, 1986. On November 20, 1986 the court issued "Findings of Fact and Conclusions of Law" denying movant's petition for relief. Movant, on appeal, raises twelve points of error with sub-points which can be grouped into two broad categories. First, he contends that the hearing court erred in concluding he was not denied effective assistance of both trial and appellate counsel. Second, he challenges the procedure followed by the hearing court and his attorney in conducting the evidentiary hearing.

Our review in this case is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). The trial court's findings and conclusions are clearly erroneous only if a review of the entire record leaves the court with a definite and firm impression that a mistake has been made. Stokes v. State, 688 S.W.2d 19, 21 (Mo.App.1985).

Since the majority of movant's points on appeal allege ineffective assistance of counsel, the guidelines enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Seales v. State, 580 S.W.2d 733 (Mo. banc 1979) must govern our decision. In order for a convicted defendant to succeed on a claim of ineffective assistance of counsel entitling him to a reversal of a death sentence he must show, first, that counsel's performance fell below the standard of reasonable effectiveness. Id. 466 U.S. at 687 104 S.Ct. at 2064. In assessing the performance of counsel the courts recognize the wide latitude given to counsel in making tactical decisions and must be highly deferential. Further, the movant must overcome the strong presumption that his attorney's conduct fell within the wide range of reasonableness, and that the actions of the attorney are considered sound trial strategy. Id. at 689, 104 S.Ct. at 2065. Second, the movant must show that he was prejudiced by the alleged deficient performance. Id. at 692, 104 S.Ct. at 2067. The pivotal inquiry when the movant challenges a death sentence is whether there is a reasonable probability that absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Id. at 695, 104 S.Ct. at 2069.

In his first point on appeal movant argues that the trial court erred when it failed to find that movant's counsel was ineffective when he failed to present certain pieces of mitigating evidence at the penalty phase of the trial. At the evidentiary hearing, counsel testified that he had considered presenting the testimony of several witnesses at the penalty phase. One of those was John Johns, movant's father or brother, ¹ who would have testified as to movant's relatively trouble-free and unremarkable background. His mother would have presented similar testimony. Counsel felt that her testimony would appeal to the maternal instincts of the female jurors. Counsel had also endorsed three expert witnesses who would have testified that the death penalty is an ineffective deterrent. After he had endorsed the experts, he consulted with the public defender regarding the effectiveness of the proposed expert testimony and as a result, concluded that this testimony was marginal at best and could possibly be detrimental to movant's case. Counsel also consulted with movant regarding the proposed testimony and movant was vehemently opposed to having his mother testify and asked counsel not to present any evidence in mitigation of the death penalty. In framing his strategy counsel respected movant's wishes and at the penalty phase of trial did not present the proposed testimony.

We need not address the issue of whether counsel's actions were deficient since it is clear that movant suffered no prejudice as a result of his attorney's conduct. The proposed testimony of the expert witnesses was irrelevant and inadmissible at the penalty phase of the trial. State v. Gilmore, 681 S.W.2d 934, 941 (Mo. banc 1984). Applying the Strickland test to the proposed testimony of movant's relatives we find no prejudice. When a defendant challenges a death sentence, the issue is whether a reasonable probability exists, absent the alleged errors, the sentence would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Strickland, 104 S.Ct. at 2069. Here, movant's attorney's reason for using the testimony of defendant's mother was "there were a number of women on the jury, (and the mother's testimony would be) "to bring out the maternalistic instincts" of the jurors. Any supplication to sympathy from the jury alone is improper at the sentencing portion of the litigation. Mitigating evidence ought to be facts pertaining to the crime which would alleviate or soften the ultimate judgment. None of the proposed evidence fell within these parameters. To the contrary, the state's potent evidence clearly revealed that the movant had planned the robbery for several weeks prior to committing it. The victim, a seventeen year old high school student was found face down in a storeroom with three bullet holes in the back of his head. One of the bullets was fired from a distance of less than 6 inches. The gas station was robbed of $248 and after the murder movant bragged to acquaintances that he "never left any witnesses." Johns, 679 S.W.2d at 257. Balancing the questionable proposed testimony to the evidence in this case, there is no reasonable probability that the omission of the evidence prejudiced the movant. Movant's claim fails under Strickland.

Next movant argues that the hearing court erred when it failed to find movant's counsel ineffective for failing to request an instruction submitting first degree murder. The court in Johns found that first degree murder is not a lesser included offense of capital murder. Id. at 260. Movant's counsel cannot be faulted for his failure to request or submit an erroneous jury instruction. Movant further contends that his counsel was ineffective for failing to request a second degree felony murder instruction. The proper lesser included offense to be submitted in a capital case is second degree murder. State v. Clark, 652 S.W.2d 123, 127 (Mo. banc 1983). Second degree felony murder is not a separate and substantive offense. Williams v. State, 712 S.W.2d 404, 406 (Mo.App.1986). Second degree murder was submitted to the jury in Instruction 6. Counsel's performance in this respect fell well within the bounds of reasonable performance and movant's claim of ineffective assistance of counsel fails under Strickland.

In his third point on appeal movant contends that the trial court erred when it failed to find trial counsel ineffective for failing to object to two statements made by the prosecutor in his closing argument. It is well established that the trial court has broad discretion to control closing argument and counsel has wide latitude in arguing the matter of punishment in the penalty phase of a capital murder case. Arguments on the deterrence of crime, the necessity of law enforcement and the need for society to protect itself need not have any support in the evidence and such statements may call upon common experience. State v. McDonald, 661 S.W.2d 497, 506 (Mo. banc 1983). The prosecutor's statement to the jury that "[w]e're in a society where our murders have doubled in the last ten years," was made in the context of demonstrating the aptness of the death penalty as a deterrent. In this setting, we find the statement was permissible and as such, trial counsel was not ineffective for failing to object.

The second "objectionable" statement made by the prosecutor was a reference made to the victim's family. The prosecution, in the course of arguing for the death penalty, asked the jury to consider the feelings of the victim's family. Taking the remark in context it would appear that such a remark was made to emphasize the senselessness and brutality of the murder which indicated the depravity that would justify the imposition of the death penalty. State v. Newlon, 627 S.W.2d 606, 619 (Mo. banc 1982). The making of such a statement, when viewed in light of prosecution's entire argument, could add little, if anything, to the effect on the jury of the state's substantial evidence showing the aggravated nature of the crime committed by the defendant. State v. Jackson, 499 S.W.2d 467, 471 (Mo.1973). We conclude that the finding of the hearing court was not clearly erroneous.

Fourth, movant contends that the hearing court was clearly erroneous in failing to find that the movant's trial counsel was ineffective when he mistakenly referred to the night of the murder as January 18, 1982 instead of February 18, 1982, the correct date. The mistake occurred once during trial counsel's opening statement and once on direct examination of the movant. At all other times during the trial the correct date was used. The hearing court found the error to be harmless.

When taken in context and viewed in light of the...