Morrow, v. State

• Citation: 21 S.W.3d 819
• Parties: (Mo.banc 2000) . Andre Morrow, Appellant, v. State of Missouri, Respondent. Case Number: SC82009 Supreme Court of Missouri Handdown Date: 0
• Decision Date: 13 June 2000
• Court: United States State Supreme Court of Missouri

21 S.W.3d 819 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Andre Morrow, Appellant, v. State of Missouri, Respondent.

Case Number: SC82009

Supreme Court of Missouri

Handdown Date: 06/13/2000

Appeal From: Circuit Court of St. Louis County, Hon. James R. Hartenbach

Counsel for Appellant: William J. Swift

Counsel for Respondent: Breck Burgess

Opinion Summary:

Andrew Morrow was convicted of first-degree murder, among other crimes, and sentenced to death. This Court affirmed his conviction and sentence. He now appeals denial of Rule 29.15 post-conviction relief.

AFFIRMED.

Court en banc holds:

(1) Counsel was not ineffective in failing to investigate certain allegedly mitigating factors about Morrow's life. Morrow did not allege any witness was available to testify, that the witness would have testified, what in particular the witness would have testified to, or whether trial counsel was informed of the witnesses' existence. Contrary to Morrow's claim, the record reflects that trial counsel provided Morrow's penalty phase experts with information, including that related to Morrow's childhood. Morrow's motion for reconsideration filed nearly eight months after the amended motion and judgment was not properly before the motion court or, consequently, this Court.

(2) Counsel was not ineffective for failing to investigate Morrow's assertion that the prosecutor sought the death penalty for racially discriminatory reasons. Trial counsel filed a pre-trial motion to preclude the prosecutor from seeking death because of alleged racial motivation. Morrow failed to allege facts that demonstrate the prosecutor's decision to seek the death penalty was based on anything other than the strength of the case.

(3) Counsel was not ineffective in preparing an expert for the penalty phase. The record reflects trial counsel provided the expert with information on Morrow's drug use and relevant records.

(4) Appellate counsel was not ineffective in not appealing the court's ruling that the state need not disclose certain arrest records of two state witnesses and a victim. First, Morrow did not plead that the records exist. Second, none of the exceptions to the general rule that one may not attempt to impeach a witness' credibility with an arrest, investigation, or charge that has not resulted in a conviction, exist. Therefore, Morrow could not have used the arrest records to discredit witness testimony.

(5)(a) Counsel was not ineffective for failing to strike a venireperson who worked where Morrow murdered the victim. That the juror, who served as an alternate, could have influenced others is mere speculation.

(b) Counsel was not ineffective for failing to make gender-based Batson challenges to the state's strike of nine female jurors. Morrow could not demonstrate prejudice.

(c) Contrary to Morrow's claim, the venirepersons were asked whether they could consider evidence of mitigation despite other pending murder charges, albeit in two separate questions.

(6) The court did not err in rejecting Morrow's allegation that the lethal injection method is inhumane and unconstitutional. Morrow failed to allege facts to show an administration problem that is likely to recur in Missouri. He cannot meet his burden by claiming there are no assurances that future executions will be humane and constitutional and citing to examples from other jurisdictions.

(7) The MAI penalty phase instructions withstood numerous constitutional challenges. Counsel was not ineffective in failing to challenge them. Claims of instructional error are matters for direct appeal, not Rule 29.15.

(8) In reviewing Morrow's appeal, this Court has not considered the statements Morrow made in the Rule 29.07 examination. It is not necessary to address his claim that the examination violated his rights.

(9) This Court's proportionality review is not constitutionally mandated. The claim that it is not meaningful and is unconstitutional has been repeatedly rejected.

Opinion Author: Ann K. Covington, Judge

Opinion Vote: AFFIRMED. All concur.

Opinion:

Andre Morrow, appellant, was convicted of murder in the first degree, section 565.020, RSMo 1994, for the murder of John Koprowski; one count of robbery in the first degree, section 569.020, RSMo 1994; one count of robbery in the second degree, section 569.030, RSMo 1994; two counts of armed criminal action, section 571.015, RSMo 1994; and two counts of felony stealing, section 570.030, RSMo 1994. The trial court sentenced appellant to death and ordered him to serve a total of 170 years plus life for the other offenses. This Court affirmed appellant's conviction and sentence. State v. Morrow, 968 S.W.2d 100 (Mo. banc 1998). Appellant filed a Rule 29.15 motion for post-conviction relief, which the motion court denied without an evidentiary hearing. Affirmed.

I.

Appellant appeals the motion court's denial of his motion for post-conviction relief without an evidentiary hearing. The motion court denied a hearing after making thorough findings of fact and conclusions of law based upon appellant's post-conviction motion. This Court will uphold the findings and conclusions of the motion court unless they are clearly erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made. State v. Johnson, 901 S.W.2d 60, 62 (Mo. banc 1995).

An evidentiary hearing is not required where "the motion and the files and records of the case conclusively show that movant is entitled to no relief." Rule 29.15(h). As distinguished from other civil pleadings, courts will not draw factual inferences or implications in a Rule 29.15 motion from bare conclusions or from a prayer for relief. White v. State, 939 S.W.2d 887, 893 (Mo. banc 1997). Appellant is entitled to an evidentiary hearing only if his motion meets three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters of which movant complains must have resulted in prejudice. State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997). To obtain an evidentiary hearing for claims related to the ineffective assistance of counsel, the movant must allege facts, not refuted by the record, showing that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney and that the movant was thereby prejudiced. Id., citing Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Williams v. Taylor, 120 S. Ct. 1495, 1511-12 (2000). To demonstrate prejudice, the facts alleged must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Carter, 955 S.W.2d 548, 554 (Mo. banc 1997).

II.

Appellant contends that the motion court clearly erred in denying without an evidentiary hearing his claim that trial counsel were ineffective in failing to investigate certain allegedly mitigating factors about appellant's life. Appellant provided the motion court with a narrative of appellant's "biographical background" in which appellant described incidents of physical abuse and violence that he claimed to have experienced throughout his life. He asserted that trial counsel should have investigated and presented this biographical information to the jury as mitigation evidence in the penalty phase. Appellant then listed as "evidentiary support" the names and, in some cases, addresses, of twenty-four individuals, two of whom were "to be named later." Appellant also listed five sets of records. He repeated this general format in presenting two additional claims, one in which he focuses on instances of childhood trauma and another where he emphasizes the prevalence of violence in his neighborhood. Appellant asserts on appeal that the failure to investigate and present this allegedly mitigating evidence violated his "rights to due process, to be free from cruel and unusual punishment, a full and fair determination of his claims, and the opportunity to prove his claims that counsel was ineffective, as guaranteed by the 6th, 8th, and 14th Amendments to the United States Constitution and article I, [section] 10, 18, and 21 of the Missouri Constitution."¹

Under the performance prong in Strickland, trial counsel is ineffective only if appellant shows that counsel's representation "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687. To obtain a hearing based on counsel's failure to investigate, appellant must specifically identify who the witnesses were, what their testimony would have been, whether or not counsel was informed of their existence, and whether or not they were available to testify. State v. Jones, 979 S.W.2d 171, 186-87 (Mo. banc 1998).

Appellant's Rule 29.15 motion did not allege sufficient facts to meet the standards described in State v. Jones and Strickland. Appellant did not allege that any listed witness was available to testify or that the witness would have testified if he or she been called to do so. Appellant did not connect a specific portion of appellant's narrative to a particular witness. It is impossible, therefore, to determine whether any of the individual witnesses would have provided mitigating evidence through their testimony. See Leisure v. State, 828 S.W.2d 872, 878 (Mo. banc 1992). Appellant's motion, therefore, did not state facts demonstrating ineffective assistance of counsel. Jones, 979 S.W.2d at 187.

Appellant's pleading was deficient in other respects. To obtain an evidentiary hearing on the claim, a movant must also allege that he provided trial counsel with pertinent and sufficient information regarding how to contact potential witnesses, or that such information was readily available. Jones v. State, 767 S.W.2d 41,...