Morris v. State, 54537
| Citation | 763 S.W.2d 327 |
| Decision Date | 06 December 1988 |
| Docket Number | No. 54537,54537 |
| Parties | Anthony MORRIS, Appellant, v. STATE of Missouri, Respondent. |
| Court | Court of Appeal of Missouri (US) |
Janis C. Good, Dave Hemingway, St. Louis, for appellant.
John M. Morris, III, Jefferson City, for respondent.
Movant, Anthony Morris, appeals the denial of his Rule 27.26 motion. We affirm.
Movant was convicted by a jury of capital murder, § 565.001 RSMo 1978. He was sentenced to life imprisonment, without eligibility for probation or parole for fifty years. § 565.008 RSMo 1978. On direct appeal, his conviction and sentence were affirmed. State v. Morris, 639 S.W.2d 589 (Mo. banc 1982), cert. denied 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983).
At the hearing on the motion, the trial court took judicial notice of the record of movant's original trial. In State v. Morris, supra, our Supreme Court synopsized the facts established at that trial. We use that synopsis without further attribution.
On the evening of September 26, 1980, movant met Robert Hills, a cousin, at a bar. Hills and Edward Wallace, a neighbor who had accompanied Hills to the bar, drove movant home. Movant picked up a shotgun, returned to the car and found Hills and Wallace arguing over a woman.
Sometime later that evening, Pierce Bush, who lives across from Sherman Park, thought he heard a backfire or gunshot. He went out on his porch and saw two men, Hills and Wallace, fighting across the street, near the park. Bush saw Hills hit Wallace several times and saw movant step in and also hit Wallace. Movant held the shotgun in his hand during the entire incident. Wallace attempted to leave by climbing a hill into the Park. Movant and Hills followed Wallace, caught up with him and began hitting Wallace again. Hills then walked away to urinate. Bush could hear parts of the conversation between movant and Wallace. Bush heard movant say: "you think I'm bullshitting"; then, Bush saw movant shoot Wallace, reload the gun, nudge Wallace with his foot and order him to "get up."
Bush called the police. When they arrived, they saw movant and Hills standing over Wallace; movant was holding the shotgun. After a short chase, movant and Hills were apprehended. Wallace bled to death, and movant and Hills were charged with his murder.
Hills' charge was severed from movant's charge. Hills was tried before movant, convicted of second degree murder and sentenced to 25 years imprisonment. His conviction and sentence were affirmed on appeal. State v. Hills, 645 S.W.2d 57 (Mo.App.1982).
Movant contends his trial counsel's representation was ineffective on several different grounds. Movant first contends his trial counsel "denied" him his right to testify and "prevented" him from exercising that right. Movant admits he "was advised of his right to testify or remain silent", but he argues his trial counsel "refused to abide by [movant's] decision [to testify]" and this refusal "coerced [movant] to waive his right to testify." This contention is not supported by the record.
We take the record as we find it, and so must movant's counsel on appeal. 1 The motion court determines the credibility of the witnesses. Rule 73.01(c)(2); e.g. Gallimore v. State, 660 S.W.2d 458, 459 (Mo.App.1983). Movant's testimony at the hearing was contradicted by and was inconsistent with the testimony of his trial counsel. The trial court chose to credit the testimony of movant's trial counsel, and we defer to that determination. Rule 27.26(j).
Aside from movant's discredited testimony that his trial counsel "wouldn't put me on," there is no evidence that movant was "denied" his right to testify, "prevented" from exercising it or "coerced" into waiving it. All the evidence is to the contrary.
Movant's trial counsel was no unprepared neophyte. At the time of trial, movant's trial counsel had been an assistant public defender for about six years and had tried over one hundred felony cases. To prepare for trial, she discussed the case with movant on "numerous occasions," told him who the state's witnesses would be and explained the state's case against him. She, with another attorney from her office and her investigator, talked to Bush, the state's eyewitness, and to other people in the neighborhood of Sherman Park. They took photographs of the scene, marked locations in the park and paced off distances. Prior to trial, movant's trial counsel took Bush's deposition, and she talked with movant about possible witnesses for his defense.
With this as background, movant's trial counsel discussed the right to testify with movant prior to trial. Although she could not recall the specifics of these discussions which occurred some six years prior to the present hearing, she said her practice was to allow her clients to make the decision whether to testify. Her testimony about her discussions with movant is somewhat garbled in the record. According to the transcript, she said:
....
[A]lmost everything that [movant] was going to say was inconsistent with not only the other testimony in the case but with ... some of the exhibits.... [H]is testimony [would have been] basically totally different than every other piece of ... evidence in the case".
This evaluation is consistent with the fact that movant had given at least three different statements to the police. Although not explicitly stated in the record, movant's trial counsel apparently advised movant not to testify. The trial court found this advice acceptable trial strategy, rather than "coercion", and so do we.
Movant next contends his trial counsel was ineffective because she failed to request an instruction on voluntary intoxication. Movant's charge of capital murder required the state to prove that movant "unlawfully, willfully, knowingly, deliberately and with premeditation" killed another. § 565.001 RSMo 1978. Movant contends the evidence at trial supported a defense of voluntary intoxication, and, if that defense had been submitted to the jury, movant argues, the evidence would have "provided a reasonable basis for the jury to find that his intoxication negated a coolly deliberated, premeditated intent to kill." Had the jury been instructed on the "mitigating circumstances of voluntary intoxication", movant reasons, he "would have been convicted of a more accurate, lesser degree of homicide."
Movant's argument is defective for a number of reasons. We discuss only one.
In Missouri, the defense of voluntary intoxication was a valid defense to certain crimes from January 1, 1979, § 562.076 RSMo 1978, until October 1, 1984, § 562.076 RSMo Supp.1984. Under that statute, intoxication of sufficient degree "[n]egatives the existence of the mental states of purpose or knowledge when such mental states are elements of the offense charged...." § 562.076 RSMo 1978. The Comment to this statute explained the statute's limited application as well as the difficulty in raising the defense of intoxication:
The code section brings Missouri law on this point into line with that of nearly every other state and reaches a more logical result. The change will not be of any great benefit to drunks as it will be very difficult to establish that a person was so intoxicated as to not know something when his actions indicate that he did know. 2
This difficulty was reflected in the repeated holdings that an instruction on the defense of intoxication was proper only when the evidence of the defendant's "intoxication was so extreme he did not know what he was doing." Anderson v. State 747 S.W.2d 281, 284 (Mo.App.1988); e.g., State v. Bienkowski, 624 S.W.2d 107, 108 (Mo.App.1981).
Contrary to defendant's contention, the trial evidence of his drinking did not support this defense. The eyewitness Bush testified on direct examination that he saw the two attackers, defendant and Hill, try to follow the victim, Wallace, up a steep hill in Sherman Park, but they couldn't make it, they "kept sliding, slipping down". On cross-examination, with reference to this attempt to climb the hill, Bush said:
Q. ... Did you see them staggering.
A. He looked to be high.
Q. Who did?
A. All of them.
Q. They looked to be drunk.
A. Yeah, he was drunk.
Officer Jacobsmeyer also testified defendant told him that he had "several drinks ... [and] he had danced a couple of dances" at the bar.
Bush's characterization or description of movant, or of all the parties, is questionable at best. Bush saw movant from a distance, not up close. The slipping and sliding could just as easily have been caused by the slope of the hill as by intoxication. At best for movant, this would be only minimal evidence of intoxication, and certainly would not show movant was so drunk he did not know what he was doing. Thus, this evidence would not warrant an instruction on voluntary intoxication. See, e.g., Ingram v. State, 686 S.W.2d 36, 37 (Mo.App.1985).
Admittedly, at the hearing below, movant testified that he and Jessie Langston drank a pint of Canadian Mist, a fifth of Mogan David wine, and some beer. Movant's testimony, however, was not credited. The testimony of movant's trial counsel was credited. She said she recalled that either "one or all the parties [movant, Hill and Wallace] had been drinking", or only "[Hill] and Earl [Wallace]" had been drinking. In either event, s...
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