Mathenia v. State, 53254

• Court: Missouri Court of Appeals
• Writing for the Court: CARL R. GAERTNER; SATZ, C.J., and SIMEONE
• Citation: Mathenia v. State, 752 S.W.2d 873 (Mo. App. 1988)
• Decision Date: 03 May 1988
• Docket Number: No. 53254,53254
• Parties: Chuck Lee MATHENIA, Appellant, v. STATE of Missouri, Respondent.

Page 873

752 S.W.2d 873

Chuck Lee MATHENIA, Appellant, v. STATE of Missouri, Respondent.

No. 53254.

Missouri Court of Appeals,

Eastern District,

Division Five.

May 3, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 1, 1988.

Application to Transfer Denied July 26, 1988.

Donald J. Hager, Public Defender, Farmington, for appellant.

John W. Reid, II, Pros. Atty., Madison County, Fredericktown, for respondent.

CARL R. GAERTNER, Judge.

Defendant was convicted on two counts of capital murder, § 565.001 RSMo.1979 (repealed L.1983, S.B. 276, p. 922), and received two death sentences. The Missouri Supreme Court denied the direct appeal of these convictions and sentences. State v. Mathenia, 702 S.W.2d 840 (Mo.banc 1986). Defendant then filed a pro se 27.26 motion. Appointed counsel later filed an amended and a second amended 27.26 motion which incorporated the pro se motion and set forth additional allegations of error. The state moved for summary judgment and this motion was granted. Defendant appeals, claiming that the motion court erred because: (1) Defendant's claim of ineffective assistance of counsel based on counsel's failure to attempt to suppress defendant's videotaped confession required an evidentiary hearing; (2) Defendant's claim of ineffective assistance of counsel based on counsel's failure to properly investigate and present evidence of defendant's mental capacity required an evidentiary hearing; (3) The trial court applied an unconstitutional interpretation of the death penalty statute; (4) Defendant's claim of ineffective assistance of counsel based on counsel's failure to object to use of an allegedly unwarranted statutory aggravating circumstance required an evidentiary hearing. We affirm.

The third and fourth points which defendant asserts in this appeal relate to the aggravating circumstances instruction submitted to the jury during the penalty phase of the trial. The Supreme Court approved this instruction on defendant's direct appeal. Mathenia, 702 S.W.2d at 844-45. An issue considered on direct appeal cannot be re-litigated in a post-conviction proceeding under Rule 27.26, even though a different theory is suggested. Bannister v. State, 726 S.W.2d 821, 830 (Mo.App.1987). Moreover, since the Supreme Court found no fault with the instruction, we can scarcely fault counsel for failing to make a non-meritorious objection. Shaw v. State, 686 S.W.2d 513, 516 (Mo.App.1985).

In his first point, defendant claims he was entitled to an evidentiary hearing on his claim of ineffective assistance of counsel based upon the failure of his trial attorney to file a motion to suppress defendant's statements. In reviewing a claim of ineffective assistance, we are instructed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Sanders v. State, 738 S.W.2d 856, 857 (Mo.banc 1987), to deny the claim if defendant fails to plead and prove either deficient performance of counsel or resultant prejudice. In discussing the proof required to establish prejudice, "[t]he defendant must show that there is 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, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. We find no such probability regarding the failure of defendant's trial counsel to file a motion to suppress his statements.

In ruling upon the state's motion for summary judgment, the motion court had before it the original and amended Rule 27.26 motions sworn to by defendant, the transcript of the trial and pre-trial proceedings, and reports of psychiatric examinations. The evidence considered in the light most favorable to the defendant fails "to undermine confidence in the outcome." In order to show prejudice, as defined in Strickland, from failure to file a motion to suppress, defendant would have to establish that such a motion would have at least a possibility of success and that the exclusion of his statements from evidence would have a reasonable probability of altering the outcome of the trial.

Defendant was arrested on April 25, 1984, and given Miranda warnings. He made no statement at that time. On Saturday, May 5, 1984, he advised a deputy sheriff he wished to talk to him. Because a lawyer had been appointed to represent defendant, the sheriff refused to permit him to make a statement at that time. On Monday, May 7, defendant spoke with his attorney by telephone, then told the sheriff his lawyer had advised him not to make a statement but he wanted to do so anyway. Only then did the sheriff take the videotaped confession. This evidence, that defendant initiated the subject, persisted over a two-day period in his wish to make a statement, and insisted upon doing so against the advice of counsel, stands in contrast to the purely conclusory allegations that the confession was "forced out of me" and resulted from "inherently coercive surroundings." Such allegations of mere conclusions, unsupported by any facts, do not merit an evidentiary hearing. Thomas v. State, 736 S.W.2d 518, 519 (Mo.App.1987); Seltzer v. State, 714 S.W.2d 727, 728-29 (Mo.App.1986). Equally insufficient is defendant's allegation that his confession was forced by "things done to me" by a fellow inmate. "Coercive police activity" is the necessary predicate to finding that a confession is not voluntary, Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 484 (1986), not "pressures to confess emanating from sources other than official coercion," Oregon v. Elstad, 470 U.S. 298, 304-305, 105 S.Ct. 1285, 1290, 84 L.Ed.2d 222, 229 (1985).

Moreover, in addition to defendant's videotaped confession, the evidence established that defendant had admitted to four persons not connected with law enforcement that he had committed both murders. Physical evidence, bloodstained clothing and bloody shoe prints, also implicated defendant. The videotaped confession is cumulative to and corroborative of this evidence, of the photographic evidence of the murder scenes, and of the medical testimony describing the victims' injuries. Review of the record in its entirety reveals no reasonable probability that the outcome of the trial would have been different had counsel suppressed the videotaped confession.

Defendant's remaining point on appeal asserts error in granting the state's motion for summary judgment and denying an evidentiary hearing with regard to three charges of ineffective assistance of counsel:

A) Counsel was ineffective in not requesting that appellant's competency be tested and in not investigating possible defenses based on mental disease or defect;

B) Counsel was ineffective for failing to present evidence which would support a finding that appellant lacked the requisite mental state to commit first degree murder;

C) Counsel was ineffective for failing to present an adequate defense during the penalty phase in that he failed to interview or call as witnesses, Gary Brinkley, Dorothy Stevens, or Harold Mathenia.

The pertinent allegations of defendant's pro se motion are:

9(a) My attorney did not call as witnesses my aunt, Dot Stephens, or my brother, Harold Mathenia, who would have testified to my problems growing up and my problems until I was put in jail. He did not call Preacher Gary Brinkley, who would have testified to my problems and to my character.

9(c) My attorney did not ask that my mental competency be tested before trial, or that the judge find me incompetent.

These allegations are incorporated by reference in the amended 27.26 motions which appointed counsel filed, however nothing was added to the pro se allegations, except a suggestion that Gary Brinkley would testify "to child abuse" and to "special problems of the petitioner."

Absent a recitation of the anticipated testimony of the alleged defense witnesses and their availability to be called as witnesses at the trial, the charge of ineffective assistance of counsel based upon a failure to call witnesses does not merit an evidentiary hearing. Sprous v. State, 726 S.W.2d 427, 428 (Mo.App.1987). Moreover, during the penalty phase of the trial, counsel produced detailed evidence regarding physical and psychological abuse which defendant's aunt, Dot Stephens, inflicted upon him and concerning his learning disability...