Kenley v. State, s. 15022

• Decision Date: 07 September 1988
• Docket Number: Nos. 15022,15024,s. 15022
• Citation: 759 S.W.2d 340
• Parties: Kenneth KENLEY, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
• Court: Missouri Court of Appeals

Page 340

759 S.W.2d 340

Kenneth KENLEY, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.

Nos. 15022, 15024.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 7, 1988.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 27, 1988.

Application to Transfer Denied Nov. 15, 1988.

Henry B. Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Jeffrey Philip Dix, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PER CURIAM:

Following jury trial appellant was convicted of capital murder and received the death penalty. The conviction and sentence were affirmed on appeal. State v. Kenley, 693 S.W.2d 79 (Mo. banc 1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). In a separate trial appellant was convicted of three counts of robbery in the first degree, two counts of kidnapping, two counts of assault in the first degree and one count of stealing. These convictions were also affirmed on appeal. State v. Kenley, 701 S.W.2d 185 (Mo.App.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986).

Appellant thereafter sought post-conviction relief by filing two Rule 27.26 motions. They were consolidated for hearing and after the hearing the trial court made findings of facts, conclusions of law and entered judgment denying the motions. This appeal is still governed by Rule 27.26 as the sentences were pronounced and the motions filed before January 1, 1988. Rule 29.15(m). This court has jurisdiction of the appeal. Mercer v. State, 666 S.W.2d 942,944 (Mo.App.1984).

Appellant has briefed seven assignments of error, all alleging the ineffective assistance of counsel both at the capital murder trial and at the robbery, kidnapping, stealing and assault trial (hereinafter the "non-capital trial"). Our primary inquiry is whether the record reveals that (1) trial counsel failed to exercise that degree of skill, care and diligence to be expected of a reasonably competent attorney under similar circumstances, and (2) appellant was prejudiced by trial counsel's performance. Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984), rehearing denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979); Bannister v. State, 726 S.W.2d 821, 824 (Mo.App.1987), cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987). The required prejudice is shown if the record reflects a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. With this in mind, we shall examine appellant's contentions and review the facts of record as the need arises.

Appellant first assigns error to the hearing court in finding there was no ineffective assistance of counsel because of counsel's alleged failure to investigate and present psychiatric evidence which appellant contends could have resulted in life imprisonment. He claims the court's finding that there was a viable "strategic decision" not to seek out this mitigating evidence was clearly erroneous. The evidence which appellant proclaims could reasonably have persuaded a jury to impose a life sentence instead of the death penalty consists of the testimony of two persons: Dr. Maria Manion, a medical doctor specializing in child psychiatry, and Lois Crownover, a retired school social worker at the Poplar Bluff public school system where appellant attended school until he was 15 or 16 years old. Appellant asserts that these witnesses could have provided testimony and evidence concerning his genetic background, turbulent and abused family history, and psychiatric record including evidence that his condition was capable of improvement.

Ms. Crownover first became acquainted with appellant when he was eleven years old when his school principal had asked her to intervene. At that time appellant was having "great difficulty getting along" and was "overly aggressive, hostile, and was not functioning in the classroom." Upon those observations, she made her initial referral to the diagnostic regional center in Poplar Bluff, Missouri. Thereafter, appellant was hospitalized twice in Farmington State Hospital and once in Lutheran Hospital, upon the basis of Ms. Crownover's referral.

Appellant had been living with his father and grandmother. He was "extremely overly active" and his father described episodes of his fainting. After being evaluated at the diagnostic clinic initially, though not seen by a psychiatrist, appellant returned to school and Ms. Crownover was given instructions as to how to work with him. Ms. Crownover described some of appellant's problems: he was, at age eleven, still enuretic (a bed wetter), he was not achieving to the full potential revealed by his intelligence scores, and he would go into "wild rages", screaming, crying and kicking. Finally, at age fifteen, the school principal asked the Farmington Hospital to declare that appellant required homebound teaching because he was fearful for the safety of the teachers and other children. A homebound teacher was assigned to him. Thereafter, appellant was placed in a school for severely behavioral disordered children, but that alternative was unsuccessful and Ms. Crownover eventually referred him to Dr. Maria Marion who hospitalized him at the age of sixteen in the Lutheran Hospital in St. Louis.

While appellant was under Ms. Crownover's counselling, he was taking medication, prescribed by the Farmington Hospital, which restored some measure of self-control. Ms. Crownover described the relationship between appellant and his father as "angry" and the only way his father could control him (as a child) was through creating fear in him, but this became unsuccessful as appellant grew older. Appellant's father was an extremely nervous man who was illiterate, and suffered a severe speech impediment. Movant's grandmother, in her seventies, "adored Kenneth" and "did everything that she could in her power for him", though Ms. Crownover suspected appellant abused her as well as his father.

The office of appellant's criminal trial counsel requested from Ms. Crownover documentation of her involvement with appellant. These documents described appellant's behavior, his social history, the referrals made, and his various problems. Ms. Crownover sent the documents to the attorney's office, along with Dr. Manion's address. Thereafter, trial counsel contacted her, relating that he had received the documents, that the information gave him insight into his client, and that he appreciated her cooperation. She was not contacted by the attorney or his office again. At the time of trial Ms. Crownover's reports were at least six years old. Ms. Crownover also sent documentation of her involvement with appellant to the Fulton State Mental Hospital when Dr. Parwitaker was performing a psychiatric evaluation of appellant to determine mental defect per Chapter 552, RSMo, 1986.

Dr. Maria Manion admitted appellant to Lutheran Hospital on November 24, 1975, and discharged him on February 23, 1976. Throughout this time Dr. Manion was involved in psychiatric-psychological studies of appellant. She prescribed an antidepressant drug for appellant, commonly used in the treatment of mentally ill patients, and he responded favorably to it. During his hospitalization appellant was subjected to a variety of tests, including an electroencephalograph (EEG) (a recording of the electricity the brain produces), the results of which were abnormal. Dr. Manion said that the brain pattern could be altered due to many factors and that an EEG is not conclusive as a diagnosis of brain abnormality. The abnormal EEG was consistent with appellant's developmental delays, such as his enuresis, and his "temper tantrums". In a medical report, the doctor cautioned that "the findings were not conclusive or correlated with a convulsive disorder".

Dr. Manion remarked on appellant's genetic background and noted that his father had a chronic mental illness for which he had been hospitalized several times. Predisposition (genetics), an abnormal EEG, enuresis, and a non-nurturing environment indicated the genesis of appellant's violent temperament. However, there was never an indication that appellant was abused at home. Dr. Manion's opinion was that appellant was unable to cope with frustration and stress. She expressed the opinion that, if he had continued treatment, appellant "would be improved". Dr. Manion was never contacted by appellant's criminal trial attorney or his office.

After receiving the documentation of appellant's psycho-social history from Ms. Crownover, the attorney requested the court to order a mental examination be conducted at Fulton State Mental Hospital. The examination was so ordered and subsequently performed. After he received the report from Dr. Parwitaker at Fulton, the attorney spoke with Dr. Maria Wiscowski for approximately six hours about different aspects of the case and appellant's behavior. From the second week in January until the trial in June, the attorney was in daily contact with appellant and was alert to any abnormalities which might signal the need for another mental examination.

The attorney testified that he did not utilize Ms. Crownover as a witness in the sentencing phase because he believed Dr. Parwitaker's report to be fairly conclusive and damaging to the case. If he had called Ms. Crownover to testify, her six-year-old information could be refuted based on the much more recent report of Dr. Parwitaker and the state "would try to cut that to ribbons". The attorney said he did not utilize Dr. Manion's testimony, for substantially the same reasons.

While working with appellant on the case, the...