Leisure v. State, 73693

CourtUnited States State Supreme Court of Missouri
Citation828 S.W.2d 872
Docket NumberNo. 73693,73693
PartiesDavid LEISURE, Appellant, v. STATE of Missouri, Respondent.
Decision Date24 March 1992

Cheryl Rafert, Richard Sindel, Clayton, for appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

BENTON, Judge.

David Leisure was convicted of murder in the bombing death of James Michaels, Sr., and sentenced to death. His conviction was affirmed in State v. Leisure, 749 S.W.2d 366 (Mo. banc 1988). Leisure filed for post-conviction relief seeking to vacate his sentence. An evidentiary hearing was held and thereafter, the 29.15 motion was denied. The judgment of the motion court is affirmed.

Leisure timely filed a pro se Rule 29.15 motion on May 18, 1988. An amended motion was timely filed by counsel on July 18, 1988. The trial judge dismissed the motion without an evidentiary hearing. On May 16, 1989, this Court vacated the judgment of dismissal and remanded with instructions to hold an evidentiary hearing.

On remand, Leisure's counsel attempted to file a second amended motion, which was dismissed by the motion court as untimely. On May 29, 1990, Leisure's current counsel entered his appearance and requested an additional 30 days to file a second amended motion. The motion court denied leave to file the additional amended motion and granted a protective order limiting all testimony and evidence to matters raised in the original pro se and the first amended Rule 29.15 motion.

An evidentiary hearing was held and evidence was presented by both parties. Leisure's testimony was received by deposition pursuant to Rule 29.15(h). The motion judge issued a lengthy memorandum opinion and order denying the motion to vacate sentence.

I.

This Court's review of the denial of Leisure's motion is limited to determining whether the findings and conclusions are clearly erroneous. Rule 29.15(j). The findings and conclusions are clearly erroneous only if, after review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. State v. Vinson, 800 S.W.2d 444, 448 (Mo. banc 1990); Amrine v. State, 785 S.W.2d 531, 533 (Mo. banc 1990), cert. denied, 498 U.S. 881, 111 S.Ct. 227, 112 L.Ed.2d 181 (1990).

Four of Leisure's points relate to issues raised on direct appeal. Leisure claims his counsel was ineffective in the following respects: (1) failure to adequately substantiate a motion to strike venireperson Zewiski; (2) failure to file a timely motion for change of venue; and (3) failure to object adequately to the prosecutor's cross-examination of the defense psychologists. Leisure also maintains that (4) capital punishment should not be imposed on a mentally immature person because it violates his right to due process, equal protection, and freedom from cruel and unusual punishment.

In O'Neal v. State, 766 S.W.2d 91, 92 (Mo. banc 1989), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989), the fact that issues were presented on direct appeal as trial errors and ruled against the defendant was characterized as an "insurmountable obstacle". This Court specifically rejected attempts to convert trial errors into viable theories of ineffective assistance of counsel in the post-conviction proceeding. Id. at 93. Issues decided upon direct appeal cannot be relitigated on a theory of ineffective assistance of counsel in a post-conviction proceeding. Amrine v. State, 785 S.W.2d at 536.

Leisure asks this Court to reconsider the law as to the cognizability, in the post-conviction proceeding, of issues raised on direct appeal. This Court declines to do so. Issues decided on direct appeal will not be reconsidered.

II.

The remaining points on appeal primarily involve allegations of ineffective assistance of counsel. In order to prevail on such claims, the movant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and second, movant must show that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). There is a strong presumption that the attorney's conduct was proper. Id. at 858.

Leisure first alleges ineffective assistance of counsel for refusal to present alibi witnesses and for proceeding with a diminished capacity defense contrary to Leisure's wishes and instructions. The motion court denied this point based on its finding that trial counsel's decision was reasonable trial strategy.

Leisure claims that his trial counsel failed to call alibi witnesses, Elmer Lawson and Sandra Bradford (Leisure's sister-in-law). Both witnesses testified at the evidentiary hearing, relating that they were with Leisure on the day of the bombing. The essence of Lawson's testimony was that he was with Leisure from approximately 9:30 or 10:00 a.m. until Leisure left to go help Sandra Bradford with her car sometime after 12:30 p.m. Sandra Bradford testified at the evidentiary hearing that she called Leisure around 12:00 to 12:30 p.m. but was unable to reach him. She called back an hour later and asked him to meet her after work to look at her car. Bradford testified that Leisure was waiting for her in the parking lot when she got off work at 4:00 p.m.

Leisure's trial attorney, Alan Zvibleman, clearly investigated an alibi defense in the instant case. Both Sandra Bradford and Elmer Lawson testified at the evidentiary hearing that Zvibleman had contacted them. Jerry Bassett, then a non-attorney who assisted Zvibleman, also interviewed these potential witnesses.

At the evidentiary hearing, Zvibleman testified that he made a decision not to call Bradford or Lawson only weeks before the actual trial commenced. Zvibleman had received a psychological evaluation from Dr. Cuneo indicating Leisure was borderline mentally retarded. After Dr. Armour, head of forensic psychology at Malcolm Bliss Hospital, agreed with Dr. Cuneo's assessment of Leisure's mental capacity, Zvibleman decided that Leisure had a viable diminished capacity defense.

Counsel met with Leisure to discuss the options for defense. The record demonstrates Leisure's initial reluctance to drop the alibi defense. Zvibleman strongly advised pursuing diminished capacity (to the exclusion of alibi) based on his belief that the alibi witnesses were not credible and that it would be a tactical mistake to present both defenses--alibi and diminished capacity. See State v. Stepter, 794 S.W.2d 649, 657 (Mo.1990) (counsel not ineffective for failing to present defenses of alibi and self-defense since the defenses were inconsistent).

The motion court found that trial counsel's decision to pursue the diminished capacity defense was a reasonable trial strategy. This finding is not clearly erroneous. The selection of witnesses and the introduction of evidence are questions of trial strategy. Sanders v. State, 738 S.W.2d at 858. A decision not to call witnesses to testify, as a matter of trial strategy, is virtually unchallengeable. Brown v. State, 785 S.W.2d 759, 762 (Mo.App.1990).

Furthermore, Leisure did not establish that he was prejudiced by his counsel's failure to call Lawson or Bradford as witnesses. To demonstrate prejudice, a movant must establish that there is a reasonable probability that, but for counsel's actions, the result of the trial would have been different. Sloan v. State, 779 S.W.2d 580, 582 (Mo. banc 1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 776 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Stokes v. State, 688 S.W.2d 19, 23 (Mo.App.1985).

Both Zvibleman and Bassett testified at the evidentiary hearing that neither Bradford nor Lawson appeared credible. For example, Lawson insisted that he worked for Leisure prior to the bombing, but maintained that his employment commenced in 1985 or 1986. The record is clear that the bombing occurred in 1980.

Additionally, the testimony of Bradford and Lawson did not account for Leisure's whereabouts for a significant period of time on the day of the bombing. If a potential witness's testimony would not unqualifiedly support a defendant, the failure to call such a witness does not constitute ineffective assistance of counsel. Hamilton v. State, 770 S.W.2d 346, 348 (Mo.App.1989).

Based on the shortcomings inherent in the two witnesses' testimony and the viability of a diminished capacity defense in this particular case, it cannot be said that trial counsel was ineffective in his choice of trial strategy. The point is denied.

III.

Leisure argues that counsel was ineffective for failure to rebut the allegedly false testimony of jail superintendent L.T. Brown. During the penalty phase of Leisure's trial, Captain Daniel Gleiforst testified that Leisure had been an ideal prisoner while incarcerated at the city jail. On cross-examination, the state asked Gleiforst if he had been suspended two days for allowing Leisure to receive an unauthorized visitor. Gleiforst denied the suspension. The prosecutor called Gleiforst's supervisor, L.T. Brown, who testified that Gleiforst was suspended for allowing Leisure the favor of an unauthorized visitor.

Leisure claims that Zvibleman should have called Brown's supervisor, George Kinsey, to rebut Brown's testimony. An affidavit prepared by Kinsey indicated that he had complete authority over disciplinary actions and that Gleiforst had not been suspended for two days.

L.T. Brown was the last person to testify during the penalty phase of Leisure's trial, and there was no endorsement of Brown. Zvibleman testified that he did not even know of Kinsey's existence until the trial was over.

A court is not required to consider the performance component of Strickland...

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