McDonald v. State, 52757

• Decision Date: 26 July 1988
• Docket Number: No. 52757,52757
• Citation: 758 S.W.2d 101
• Parties: Samuel McDONALD, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 101

758 S.W.2d 101

Samuel McDONALD, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.

No. 52757.

Missouri Court of Appeals,

Eastern District,

Division Two.

July 26, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 31, 1988.

Application to Transfer Denied Oct. 18, 1988.

Daniel Louis Seiden, Richard H. Sindel, Clayton, for plaintiff-appellant.

William L. Webster, Atty. Gen., Scott L. Templeton, Asst. Atty. Gen., Jefferson City, for defendant-respondent.

STEPHAN, Presiding Judge.

This is an appeal of denial of post-conviction relief after an evidentiary hearing. Supreme Court Rule 27.26. Movant was convicted of capital murder in the Circuit Court of the City of St. Louis and sentenced to death. The conviction was affirmed by the Missouri Supreme Court in State v. McDonald, 661 S.W.2d 497 (Mo. banc 1983), cert. denied 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985).

Movant filed a pro se motion under Rule 27.26 on May 2, 1985. In this motion, he alleged 28 different claims of ineffective assistance of counsel and 13 trial court errors. Counsel was appointed and an amended motion was filed which alleged 4 new claims of ineffective assistance of counsel and 4 new claims of trial error. The motion was further amended by counsel on October 22, 1986.

An evidentiary hearing which spanned four days was held in October 1986. On January 20, 1987, the motion court issued Findings of Fact and Conclusions of Law denying the motion. Movant appeals that decision; we affirm.

After movant's attorney filed his brief, this Court allowed movant to file a pro se supplemental brief which contains eight points, all of which claim that the motion court erred in holding that trial counsel rendered effective assistance in various respects. We will first address those points raised in movant's attorney's brief and then those raised in movant's pro se brief.

The first point is that the hearing court committed reversible error by failing to make findings of fact and conclusions of law on all issues presented in movant's 27.26 motion. Specifically, movant claims that the following federal constitutional claims were placed before the hearing court, but were not ruled on: (1) the jury that convicted and sentenced movant was not representative of the community; (2) the exclusion of evidence at the sentencing phase of the trial violated movant's Eighth and Fourteenth Amendment rights by undermining the heightened reliability required in capital cases; (3) the prosecutor's closing argument violated movant's Eighth and Fourteenth Amendment rights by impermissibly permitting a death sentence to rest on a decision made by a jury who had been led to believe the responsibility for their decision rested elsewhere; and, (4) the denial of movant's request for a psychiatric examination to develop mitigating evidence at the penalty phase was contrary to the intent of the Missouri Legislature and violated movant's constitutional right to equal protection and due process under the Fifth and Fourteenth Amendments. ¹

In ruling on a 27.26 motion, the court must make findings of fact and conclusions of law on all issues presented. Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978). This standard is satisfied if the findings and conclusions are adequate to provide meaningful review on appeal. Gill v. State, 712 S.W.2d 732, 733 (Mo.App.1986). No error will result, however, for failure to make findings of fact and conclusions of law on claims that are unsupported by substantive evidence or on claims not cognizable in a 27.26 proceeding. Gawne v. State, 729 S.W.2d 497, 501 (Mo.App.1987); Haynes v. State, 561 S.W.2d 450, 451 (Mo.App.1978).

As to the first claim, we are unable to fault the hearing court since there was no evidence presented on this claim. There is no indication regarding the make-up of the jury, or in what manner it failed to be representative of the community.

The second claim was also properly omitted. The trial court's exclusion of evidence in the sentencing phase of the trial was properly a matter to be raised on direct appeal and is not cognizable in a proceeding under Rule 27.26. Haynes v. State, supra.

Both the third and fourth claims which relate to the prosecutor's closing argument and the denial of defendant's request for a psychiatric examination were addressed by the Supreme Court on direct appeal. State v. McDonald, 661 S.W.2d 497, at 501, 506. An issue that has been determined on direct appeal cannot be relitigated in a post-conviction proceeding even if the movant asserts a new theory to support it. Bannister v. State, 726 S.W.2d 821, 830 (Mo.App.1987); Wilhite v. State, 615 S.W.2d 506, 507 (Mo.App.1981).

We find no error in the fact that the hearing court did not address these issues, particularly since the court did address all the cognizable points with sufficient detail. Fields, 572 S.W.2d at 483.

Movant's second and third points claim he was denied due process and equal protection because he requested and was denied access to reasonably necessary expert assistance to present evidence in his favor at the sentencing hearing. Movant has failed to state wherein the motion court erred. Rule 84.04(d). Moreover, movant is attacking a trial court ruling that was presented on direct appeal. McDonald, 661 S.W.2d at 501. As we stated above, the issue cannot be relitigated. Points II and III are both denied.

The next point asserts that the trial court erred in refusing to consider evidence offered in mitigation during the sentencing phase of movant's trial. The evidence concerned "Vietnam Veteran's Stress Syndrome". Movant points out that the Eighth and Fourteenth Amendments require that the sentencing court should consider, as a mitigating factor, any aspect of the defendant's character or record and any circumstance of the offense that the defendant proffers as a basis for a sentence less than death. Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 989 (1978).

The mitigating evidence in question was irrelevant. The witness, Mr. Collins, testified that he was familiar with Post Traumatic Stress Disorder affecting Vietnam Veterans, but that he did not know movant. In order to be relevant, the evidence must have come within the sentencing statute, § 565.012, RSMo 1978 (Repealed October 1, 1984), which states in pertinent part:

3. Statutory mitigating circumstances shall include the following:

* * *

(2) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

This witness could not testify "that the defendant was under the influence of extreme mental or emotional disturbance," therefore, the testimony was irrelevant and the point is denied.

Movant's fifth point is that his trial counsel was ineffective in failing to timely and adequately investigate his mental defense. We disagree.

When trial counsel was first appointed she filed a motion for leave of court to file a "Late Notice of Intent to Rely on the Defense of Mental Disease or Defect". ² She also moved for the appointment of a psychiatrist, even though, at the time, she had no evidence to support a mental defense. This motion and request for psychiatric examination was denied because it was not in conformity with statutory provisions.

Counsel filed two renewed motions for appointment of a psychiatrist. These were supported by counsel's observations that the defendant was not as logical as he had been in the past, indications by family members that mental disease or defect was a possibility, and the fact that defendant was a habitual drug user and may have been under the influence of drugs at the time of the shooting. Once again, neither motion was founded on statutory provisions, therefore, both motions were denied.

In January 1982, movant showed counsel a magazine article dealing with Vietnam Veterans Stress Syndrome. Counsel researched the "syndrome" in the DSM-III, a diagnostic and statistical manual of mental disorders prepared by the American Psychiatric Association, sought movant's military medical records, and inserted allegations of movant's symptoms in a fourth motion for appointment of a psychiatrist. This motion was filed just before trial was to begin and was also denied.

In testing ineffective assistance claims, the United States Supreme Court has enunciated a two prong test. First, defendant must demonstrate that his trial counsel's assistance fell below an objective standard of reasonableness. Second, defendant must show he was prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Movant has failed to make a sufficient showing on either prong.

Counsel did all that was possible based on the known facts. Counsel need not be clairvoyant to be effective, she can only do what is reasonable under the circumstances. Boyet v. State, 671 S.W.2d 417, 418 (Mo.App.1984). Counsel asked for psychiatric examinations even though she had no evidence of mental disease or defect. Until January 1982 she had no solid evidence on which to base her allegations. After she learned about Vietnam Veteran's Stress Syndrome she made a fourth, carefully researched, attempt to acquire a psychiatric examination.

Movant suggests counsel's motions were ineffective because they did not comply with statutory provisions. He alleges, prompted by Judge Blackmar's dissent on the direct appeal, that filing a notice to rely on a mental defense would not have harmed movant. The notice could be withdrawn at any time, and, if so, could not have been used against movant in the subsequent trial. McDonald, 661 S.W.2d at 514 (Blackmar, J. dissenting). ³

We find that trial counsel made a conscious decision in not stating a notice of intent to rely on mental disease or defect in order to keep the results of any psychiatric examination from the Circuit Attorney's office. This decision was well-reasoned...