Peeler v. State

• Decision Date: 10 May 1988
• Docket Number: Nos. 53136,53179,s. 53136
• Parties: Samuel PEELER and Dennis Peeler, Appellants, v. STATE of Missouri, Respondents.
• Court: Missouri Court of Appeals

Page 687

750 S.W.2d 687

86 A.L.R.4th 687

Samuel PEELER and Dennis Peeler, Appellants, v. STATE of Missouri, Respondents.

Nos. 53136, 53179.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 10, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 14, 1988.

Application to Transfer Denied July 26, 1988.

Holly G. Simons, Asst. Public Defender, Dave Hemingway, St. Louis, for appellants.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for respondents.

PUDLOWSKI, Judge.

Movants appeal the denial of their Rule 27.26 motion after an evidentiary hearing. We reverse the conviction of Samuel Peeler and remand for a new trial.

Movants, Samuel and Dennis Peeler, father and son, were convicted on November 3, 1978 after a joint jury trial in the Circuit Court of the City of St. Louis of second degree murder and common assault. Movants' convictions were affirmed on direct appeal in State v. Peeler, 604 S.W.2d 662 (Mo.App.1980) which contains a detailed description of the events leading to conviction.

On August 23, 1984 movants filed a pro se petition for Rule 27.26 relief and counsel was appointed. A joint evidentiary hearing was held on movants' amended Rule 27.26 motions in the Circuit Court of the City of St. Louis. The hearing court issued findings of facts and conclusions of law denying the movants the relief requested.

Several of movants' points on appeal challenge the finding of the hearing court regarding the effectiveness of trial counsel. In order to establish ineffectiveness of counsel, the movants must show that their attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances and that they were prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986). The movant must overcome the strong presumption that his attorney's conduct fell within the wide range of reasonableness and that the actions of the attorney are considered sound trial strategy. Potter v. State, 742 S.W.2d 231 (Mo.App.1987).

On appeal our review is limited to determining whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 27.26(j). The findings of the court are clearly erroneous only if a review of the entire record leaves this court with a definite and firm impression that a mistake has been made. Richardson, 719 S.W.2d at 915.

In their first point on appeal movants argue that the hearing court's conclusion that counsel was not ineffective for failing to request a severance was clearly erroneous. Samuel argues that he did not consent to a joint trial and was entitled to severance as a matter of right. Dennis argues that he was prejudiced by the joint trial in that Samuel's belligerence on the stand and inability to accurately understand and reply to questions tended to incriminate him. The hearing court found that Rule 25.07, in effect at the time of the trial, provided that jointly charged defendants shall be tried jointly or separately in the discretion of the court. Since Judge Stubbs testified at the evidentiary hearing that he would have denied any motion to sever, the hearing court concluded that counsel was not ineffective in failing to file a motion to sever. This conclusion is based on an erroneous interpretation of the law in effect at the time of trial.

Rule 25.07(a), in effect at the time, provided:

[W]hen two or more defendants are jointly charged with the commission of a felony, any one defendant, before announcing himself ready for trial at any term of the court, if he require it, shall be tried separately. In other cases defendants jointly indicted or informed against shall be tried separately or jointly in the discretion of the court.

Severance, in the case of the Peelers, was not a matter for trial court discretion. Had counsel requested it, severance would have been granted as a matter of right.

The Peelers were together at the time of the murder. Although we do not have the benefit of trial counsel's testimony at the evidentiary hearing, it appears from Dennis' testimony that counsel told him that a jury was unlikely to convict a father and son if tried jointly. The hearing court found that decision to be a matter of trial strategy. We find that the hearing court's judgment on this issue was not clearly erroneous.

In movants' second point they argue that the hearing court's conclusion that counsel was not ineffective for failing to request an interpreter for Samuel Peeler was clearly erroneous. Samuel argues that the lack of an interpreter or other means of transcription at trial deprived him of his right to confront witnesses and due process. Dennis argues that the absence of an interpreter hampered his ability to focus his attention solely on the proceedings and to bring out exculpatory evidence to the jury through Samuel, his co-defendant. The state, in response, argues that the testimony of the presiding judge and prosecuting attorneys at the evidentiary hearing indicated that Samuel understood the proceedings and that Dennis' effort to interpret the proceedings for his father protected Samuel's constitutional rights. The hearing court found that while Samuel was hard of hearing, he nonetheless understood the proceedings. The court concluded that Samuel was able to clearly relate the events of January 8, 1978, the night of the murder, and that any problems Samuel had in understanding the proceedings were cured by Dennis' assistance in transcribing the proceedings. We disagree.

The movants presented the only evidence as to Samuel's auditory capacity at the time of trial. Dr. Margaret Peak, an audioligist at the Veterans Administration Hospital in St. Louis, examined Samuel in 1973. At the time of that examination, Peak concluded that Samuel suffered severe to profound bilateral hearing loss. He was unable to understand spoken English except under ideal conditions, i.e., while facing the speaker directly from a reasonable distance, in a room with very little background noise, and while using a very powerful hearing aid. Further, even under ideal conditions, Peeler would have to rely on nonverbal cues from the speaker such as gesturing, intonation and lip reading. Interferences such as distance, obstruction of his line of vision or the face of the speaker would hamper Peeler's already limited ability to lip read. Unfamiliarity with the speaker as well as emphasized speech would also present problems in comprehension. Peak examined Samuel again in 1986 and found that his hearing had deteriorated. Based on her observations, Peak opined that Samuel was not feigning his hearing impairment.

Susan P. Russell, certified interpreter for the deaf also testified on behalf of the movants. She first contacted Samuel two weeks before the evidentiary hearing while he was in prison. She stated that Samuel had good spoken abilities but was unable to read lips well or understand sign language. Written means of communication were felt to be the most effective. Russell had interpreted courtroom proceedings in the past and was able to point out some of the special needs of the hearing impaired in such a situation. In order for a hearing impaired person, who was able to lip read, to understand courtroom proceedings without the aid of an interpreter, he would have to be able to clearly see the face of the speaker at all times. In addition he must be able to follow and direct his attention to the speaker during rapid exchanges of questions and answers. In typical courtroom settings, Russell felt that it would be difficult, if not impossible, for Samuel to understand the proceedings without an interpreter due to the movement of the actors at trial and the rapid exchange of conversation between them. Samuel was unable to lip read well when Russell examined him and doubted that his ability was any better in 1978.

Trial counsel was aware that Samuel had a hearing problem. No effort was made to secure the services of an interpreter. At trial Dennis sat next to Samuel and attempted to summarize the proceedings for his father by writing notes. Dennis, however, was unable to keep up with the testimony and gave up at some point. Thereafter, he would relate witness testimony to Peeler during the breaks. Samuel Peeler testified that he understood none of voir dire or the witness' testimony and relied on Dennis to keep him abreast of the proceedings

The judge who presided over movants' trial testified at the evidentiary hearing. He was made aware of Samuel's hearing problem but felt there was no need to appoint an interpreter. The judge observed Samuel throughout trial, particularly his testimony while on the stand, and felt that he understood the proceedings. However, this statement is refuted by the record. At sentencing the movants were asked to approach the bench. After sentence was pronounced upon Samuel, the judge turned to Dennis and stated, "Mr. Peeler, I'm not sure that your father understood everything I told him because of his hearing loss. I will not necessarily for the record repeat everything that I told him because it applies equally to you." (Emphasis added).

The attorney who represented the state observed Samuel's demeanor and participation at trial and felt that he was able to understand the proceedings. He felt that Samuel was using his hearing problem as an excuse to avoid answering troublesome questions. The assistant prosecuting attorney, who sat second chair at Peelers' trial was of the opinion that Samuel understood the proceedings. He based his opinion on observations he made of Samuel during trial.

Our research has revealed no Missouri cases that address this issue. However, this situation is not unlike cases that involve a defendant who is unable to speak English. In Negron v. State of New York, 434 F.2d 386 (2d Cir.1970) a...