Placke v. State

• Decision Date: 25 May 2011
• Docket Number: No. SD 30679.,SD 30679.
• Citation: 341 S.W.3d 812
• Parties: Richard PLACKE, Appellant,v.STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

341 S.W.3d 812

Richard PLACKE, Appellant,

v.STATE of Missouri, Respondent.

No. SD 30679.

Missouri Court of Appeals, Southern District, Division One.

May 25, 2011.

Kyle L. Warren, Poplar Bluff, MO, for Appellant.Chris Koster, Atty. Gen. and James B. Farnsworth, Asst. Atty. Gen., Jefferson City, MO, for Respondent.ROBERT S. BARNEY, Presiding Judge.

Appellant Richard Placke (“Movant”) appeals the motion court's denial following an evidentiary hearing of his “SECOND AMENDED MOTION UNDER RULE 29.15.” ¹ In his two points relied on, Appellant asserts the motion court erred in denying his request for postconviction relief because he received ineffective assistance of counsel due to his trial counsel's failure to interview certain witnesses and his failure to object to evidence of “uncharged crimes, wrongs and bad acts....”

The record reveals Movant was charged via “INFORMATION” with one count of the unclassified felony of statutory sodomy in the first degree, a violation of section 566.062, and one count of the unclassified felony of attempted statutory rape in the first degree, a violation of section 566.032.² The testimony below revealed that Movant was charged with engaging in deviant sexual intercourse on several occasions with B.K. (“Victim”), who was the niece of Movant's live-in girlfriend. Following a jury trial, Movant was sentenced to ten years on the statutory sodomy charge and seven years on the attempted statutory rape charge with the sentences to run concurrently. Movant appealed these convictions to this Court in State v. Placke, 290 S.W.3d 145 (Mo.App.2009). This Court affirmed the convictions on the merits, but remanded the matter for re-sentencing due to plain error in sentencing Movant to a term of imprisonment greater than recommended by the jury. Id. at 156–57. Upon re-sentencing, he was apparently sentenced to seven years imprisonment on the statutory sodomy charge and ten years imprisonment on the attempted statutory rape charge.

On October 20, 2008, Movant timely filed his pro se Rule 29.15 motion seeking postconviction relief. Movant was thereafter appointed counsel and an amended motion was filed on January 11, 2010. Following an evidentiary hearing on April 12, 2010, the motion court denied Movant's request for relief in a “JUDGMENT” and “FINDINGS OF FACT AND ... CONCLUSIONS OF LAW” entered on June 30, 2010. This appeal by Movant followed.

Appellate review of a motion court's ruling on a Rule 29.15 motion for postconviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law issued in support thereof are clearly erroneous. Rule 29.15(k); see Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). “The findings of the motion court are presumptively valid.” Fry v. State, 244 S.W.3d 284, 285 (Mo.App.2008). “Findings and conclusions are clearly erroneous if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made.” State v. Taylor, 944 S.W.2d 925, 938 (Mo. banc 1997).

A movant bears the burden of proving, by a preponderance of the evidence, that he received ineffective assistance of counsel. Rule 29.15(f). To establish ineffective assistance of counsel, a movant must show that: (1) “counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney;” and (2) counsel's poor performance prejudiced the defense. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998); see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first prong, a movant must demonstrate that “counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Movant bears the heavy burden of overcoming the motion court's presumption that trial counsel's conduct was reasonable and effective. Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001). The second prong of the Strickland test is met when a movant shows that his attorney's errors affected the judgment. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A movant can prove that the judgment was affected when there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Movant must prove each portion of this two-pronged performance and prejudice test in order to prevail on his ineffective assistance of counsel claim. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

In his first point relied on, Movant asserts the motion court erred in denying his Rule 29.15 motion because his trial counsel “was ineffective for failing to investigate and interview potential witnesses prior to trial....” He maintains that had his counsel conducted these interviews it would “have provided [Movant] with a viable defense ...” to both charged counts. His argument asserts that trial counsel, Steven Lynxwiler (“Attorney Lynxwiler”), was ineffective for failing to interview and locate Marian Lincoln (“Ms. Lincoln”), Russ Lincoln (“Mr. Lincoln”), Bill Wahlberg (“Mr. Wahlberg”) and Carol Wahlberg (“Ms. Wahlberg”). He maintains that had these witnesses been called they would have testified that, contrary to Victim's assertions that Movant tried to rape her in his above-ground swimming pool “somewhere right around the 4th of July holiday of 2006,” the swimming pool at Movant's home was, instead, “in an unswimable condition” when the potential witnesses visited the home for a barbeque on July 4, 2006. He asserts that such testimony would have refuted Victim's testimony and given additional credence to the defense theory that Victim fabricated her allegations against Movant.

At the evidentiary hearing on this matter, Attorney Lynxwiler testified that Movant discussed the aforementioned potential witnesses with him during trial preparations, but their discussions about them “were related to more collateral-type issues.” He stated he talked to Movant and his girlfriend about their relationships with the four potential witnesses and “talked about how those witnesses could be used as character witnesses.” He also related that at some point they discussed the potential witnesses in relation to “some other things to do with the case.” He recalled that during Movant's trial Ms. Lincoln spoke with him about having seen the condition of the pool at Movant's home, but he did not recall the conversation specifically or even where the conversation occurred. He related that “[a]t some point [Ms. Lincoln] told ...” him that the pool was “dirty” and “scummy” “in July” of 2006. He additionally stated Ms. Lincoln did testify during the penalty phase of Movant's trial as a character witness. Furthermore, he related he did not attempt to contact the other three potential witnesses because it was his understanding that “their information was substantially the same as what Ms. Lincoln was telling [him].”

Attorney Lynxwiler related that the swimming pool issue was one that he “didn't want to bring up [because] with the allegations as they were and the depositions that [had been] conducted, [Victim] was kind of bouncing back and forth about when certain things had happened.” He recited that

[t]o the best of [his] recollection at d[epositions], there w[ere] actually three incidents that had c[o]me out; one of which was an incident that happened in the pool, another of which was an incident that had happened in a barn, and ... there was also another incident ... on a vehicle. And it was one of those things where [he] was a little bit afraid of ... what that would do. [He] was afraid it would ... muddy the waters.

He recalled telling Ms. Lincoln that he

was worried about her testimony, that [he] didn't ... feel that [he] needed to [go into the condition of the pool] at that time. You know, [there was] some different testimony at d[epositions] that [he] could ... use to show that [Victim] ... was lying. And it was one of those issues where [he] felt that it would ... cause more confusion to the jury than what it would do good. [He] didn't want the jury to think [they] were just trying to throw everything at the wall that [they] could and make something stick.

He related that the “basic overall [defense] strategy was to show that [V]ictim was lying” and that while testimony as to the condition of the pool “could have” played into that strategy, he felt “that it'd be one of those things where the jury would believe—because of that close relationship that [Movant] had with ... the witnesses, that they would think it was an excuse that it was ... potentially made up, and that was [his] judgment call then.” Attorney Lynxwiler maintained that his decision not to explore the issue of the pool's condition by calling Ms. Lincoln to testify or by interviewing Mr. Lincoln and the Wahlbergs was a matter of trial strategy.

Ms. Lincoln testified at the evidentiary hearing that she attended a barbeque at Movant's home on July 4, 2006, and she observed that no one was swimming in the pool because “[t]he water was pretty scummy.” She related when she returned to the home “within that week” she observed Movant and his girlfriend “cleaning” the pool. She related that she spoke with Attorney Lynxwiler on two occasions—one time prior to trial and one time during trial, but just prior to the jury's adjournment for deliberations. She stated that she spoke with him about her availability as a witness, but she never spoke with him about what her testimony would entail and she never discussed the condition of the pool with him. She related she would have testified as to the condition of the pool had she been called to do so.

Mr. Lincoln testified that he also attended the barbeque at Movant's home on July 4, 2006, and that at that time the swimming pool “was full of algae and it looked real scummy.” He related when he returned with his wife the following Saturday,...