Myszka v. State

• Citation: 16 S.W.3d 652
• Parties: (Mo.App. W.D. 2000) . David H. Myszka, Appellant, v. State of Missouri, Respondent. WD56589 Missouri Court of Appeals Western District Handdown Date: 0
• Decision Date: 22 February 2000
• Court: Missouri Court of Appeals

16 S.W.3d 652 (Mo.App. W.D. 2000)

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

David H. Myszka, Appellant, v. State of Missouri, Respondent.

WD56589

Missouri Court of Appeals Western District

Handdown Date: 02/22/2000

Appeal From: Circuit Court of Platte County, Hon. Ward B. Stuckey

Counsel for Appellant: Andrew Allen Schroeder

Counsel for Respondent: Attorney General's Office

Opinion Summary:

David H. Myszka was convicted of second degree murder and armed criminal action, and those convictions were affirmed on direct appeal. Myszka then filed a motion under Rule 29.15 for post-conviction relief, in which he alleged that his trial counsel was ineffective. After a hearing, the motion was denied.

AFFIRMED.

Division I holds:

Counsel cannot be held ineffective in failing to file a speedy trial motion since all of the delay following appointment of counsel could be attributed to Myszka or to valid reasons why counsel needed a continuance in order to prepare his defense. Prior to the appointment of counsel, in December 1995, Myszka opted to represent himself and, therefore, cannot attribute the delay of his trial to counsel before counsel was appointed. In addition, counsel's first request to continue the trial until April 1996 was reasonable in that after his December 1995 appointment, he was not adequately prepared for the trial originally set in January 1996. Moreover, Myszka admitted to agreeing to the request for a second continuance from April to June 1996. In light of his claim that the delay caused him anxiety which rendered him unable to testify, the trial judge could well find based on this evidence alone that, had the pressure and anxiety caused by his incarceration during the initial continuance been so trying on his ability to testify as to his innocence, he would not have agreed to the April 1, 1996, continuance, or would have raised this issue at trial, when waiving his right to testify, or when questioned after trial as to whether he was satisfied with counsel's representation. Thus, even were the filing of a request for speedy trial made in December 1995, such filing would not have had any appreciable effect.

The statements Myszka objects to are not improper opinion testimony. By stating that, "I feel partially responsible for this. I gave him the gun. And it is really hard for me to think about this," Mr. Eubank simply expressed his deep regret that he supplied the gun that admittedly was used to cause the death of Ms. Rodriguez. His words would have been appropriate regardless they went to the fact that he had supplied the instrumentality for her death, not as to how it had been used or by whom. Also, by not finding that manifest injustice resulted from the admission of this testimony on direct appeal, the court cannot now find prejudice under the test for ineffective assistance of counsel

Lastly, Myszka's appellate counsel was not ineffective for failing to challenge hearsay testimony admitted at trial since similar evidence was admitted without objection. Accordingly, he suffered no prejudice.

Opinion Author: Laura Denvir Stith, Presiding Judge

Opinion Vote: AFFIRMED. Howard and Turnage, JJ., concur.

Opinion:

David H. Myszka was convicted of second degree murder and armed criminal action, and those convictions were affirmed on direct appeal in State v. Myszka, 963 S.W.2d 19 (Mo. App. W.D. 1998). Mr. Myszka then filed a motion under Rule 29.15 for post-conviction relief, in which he alleged that his trial counsel was ineffective for failing to file a motion requesting a speedy trial and for failing to object to allegedly improper opinion testimony. He also alleged that his appellate counsel was ineffective for failing to raise on direct appeal the trial court's allegedly erroneous admission of hearsay testimony. Because we find no error in any of the respects alleged, we affirm denial of Mr. Myszka's motion for post-conviction relief.

I. STATEMENT OF FACTS

Mr. Myszka was sentenced by Judge Ward B. Stuckey to consecutive terms of life imprisonment on his conviction of second degree murder, and 50 years on his conviction of armed criminal action. The facts giving rise to his convictions, considered in the light most favorable to the verdict, are as follows:

On the evening of April 28, 1995, Janice Rodriguez ("decedent") and her 14-year old son, J. D. were out shopping. After returning home, they watched movies until midnight. At that time, Ms. Rodriguez went to her bedroom and her son rested on the couch, where he intended to sleep, listening to music through his headphones. Movant, decedent's boyfriend, was already in Ms. Rodriguez's bedroom.

J.D. had been listening to music for approximately 15 minutes when he heard a noise that sounded like a person vomiting. When he went to check out the noise, he heard Movant warn the decedent that J.D. was approaching. Fearing that he would get into trouble, J.D. returned to his own bedroom. He then heard someone walking through the dining room and the rattling of what sounded like his mother's key ring. When J.D. looked out of the room he saw Mr. Myszka on the telephone with blood in his ear. J.D. twice demanded that Movant let him see his mother. When Movant did, J.D. saw that she was dead. Mr. Myszka claimed that she committed suicide.

J.D. called the Weston Police Department, spoke with Officer Terry Blanton, and informed him that his mother had committed suicide. When Officer Blanton arrived at the scene, he found the decedent lying on the floor in her bedroom with a .32 Derringer pistol in her left hand. The officer also noticed that Movant's breath had a strong odor of alcohol and his eyes were red and blurry. Movant was asked to perform a breathalyzer test, but refused.

The death of Ms. Rodriguez was not immediately thought to be a homicide. Later this same morning, however, the medical examiner's office reported to Chief Larry Winfrey of the Weston Police Department that the gunshot wound to the chest that caused Ms. Rodriguez's death was suspicious. At about the same time, Movant drove to the decedent's place of employment, Wadsworth Credit Union, to return her keys to the building. Other employees at the Union noticed that Mr. Myszka appeared drunk, had a scratch on his face, and had blood in his ear. Because of his apparent intoxication, Lloyd Nuggent and Rich Kowalczk, former colleagues of decedent, drove him back to Weston. When they arrived at Movant's home, police were at the scene and placed Movant under arrest. One of the arresting officers found a loaded .45 caliber handgun under Movant's shirt. He was also found with 6 rounds of .32 caliber ammunition in his pocket. A box of .45 caliber ammunition with a sales receipt dated April 28, 1995, was found in the van Movant drove.

When he was questioned later that day, Movant stated that 15 minutes after he and the decedent had gone to bed, she got out of bed, and suddenly hit the floor. When he turned on the light, he saw his girlfriend bleeding badly, and thought she would surely die. As he had said to others earlier that same day, Movant told the police that the decedent had committed suicide.

On April 29, 1995, the day following the arrest, Movant was charged by complaint with unlawful use of a weapon. That charge was dismissed, and, on June 21, 1995, Movant was charged by complaint with one count each of second degree murder, armed criminal action, and unlawful use of a weapon. These charges, too, were dismissed, but were reinstated by indictment on September 13, 1995.

Trial counsel, Gary Allen, was appointed to represent Movant and first met with him in December, 1995. Between the time of their first meeting and the trial, Mr. Allen requested two continuances. The case was tried on June 17, 1996. At trial, the State's firearm expert, Ralph Barney, testified that he test-fired the gun which killed Ms. Rodriquez and learned that if fired from a distance of 20 inches, the gun would leave gun powder residue on the shirt of the person at whom it was fired. Because he found no such residue, he concluded the gun must have been fired from a distance greater than 20 inches. Based on these tests, he was of the opinion that the gunshot wound in this case was inconsistent with suicide. Additionally, Dr. Thomas Young, medical examiner for Jackson, Platte, and Clay counties, stated that he believed that in light of the autopsy and ballistics reports, it would be nearly impossible for the decedent to have shot herself. Finally, the doctor who performed the autopsy, Dr. Bonita Peterson, testified that, considering that the decedent was right handed, it is unlikely she committed suicide by shooting herself with a gun in her left hand.

Other testimony revealed that, because of Movant's drinking problem, the decedent had threatened to kick him out of her home. Additionally, Larry Eubank testified that several months prior to the shooting, as partial payment for painting his car, Mr. Eubank had given Movant the .32 Derringer. Finally, Mr. Eubank stated that, when Movant took the gun he said, "You could make it look like somebody committed suicide with a gun," and told Mr. Eubank of a friend who killed his wife and made it look like a suicide.

Movant was convicted by the jury on the charges of second degree murder and armed criminal action, and that conviction was affirmed. State v. Myszka, 963 S.W.2d 19 (Mo. App. W.D. 1998). He timely filed a pro se and an amended motion for post-conviction relief under Rule 29.15. The amended motion alleged that Movant's trial counsel was ineffective for failing, upon Movant's request, to assert his statutory and constitutional rights to a speedy trial, and that this failure caused Movant to be confined during most of the approximately thirteen and one-half months between the murder and his trial, which in turn caused him to become so anxious that he was unable to testify in his own...