Ringo v. State

• Decision Date: 04 November 2003
• Docket Number: No. SC 84987.,SC 84987.
• Citation: Ringo v. State, 120 S.W.3d 743 (Mo. 2003)
• Parties: Earl RINGO, Jr., Appellant. v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

120 S.W.3d 743

Earl RINGO, Jr., Appellant. v.STATE of Missouri, Respondent.

No. SC 84987.

Supreme Court of Missouri, En Banc.

November 4, 2003.

Rehearing Denied December 23, 2003.

Melinda K. Pendergraph, Office of Public Defender, Columbia, for Appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Stephanie M. Morrell, Asst. Atty. Gen., Jefferson City, for Respondent.

RONNIE L. WHITE, Chief Justice.

I.

After granting defense counsel's motion for a change of venue, a jury in Cape Girardeau County convicted Appellant, Earl Ringo, Jr., of two counts of first-degree murder and imposed two death sentences.This Court upheld Appellant's conviction on direct appeal.¹Appellant, pro se, moved for post-conviction relief under Rule 29.15 alleging constitutionally ineffective assistance of counsel on fifteen grounds.

Appointed counsel filed an amended Rule 29.15 motion raising only five claims.The motion court denied three of the claims without hearing.The first was a claim that trial counsel failed to secure Appellant's right to a fair, representative and impartial jury.The second claim asserted trial counsel failed to object to the trial court's alleged improper response to the jury's question regarding sentencing, and the third was trial counsel's failure to object to alleged prosecutorial misconduct.Motion counsel presented no evidence on the fourth claim alleging the death penalty was unconstitutional, and it too was denied.Finally, the motion court denied relief on the fifth claim alleging that trial counsel failed to present necessary expert testimony in both the guilt and penalty phases of his trial.

Appellant raises four of these five points of error on appeal and adds a fifth claim alleging Eighth and Fourteenth Amendment violations for motion counsel's failure to raise all fifteen points that were originally raised by Appellant in his pro se motion in the amended 29.15 motion.²This Court has jurisdiction pursuant to Mo. Const. art. V, sec. 10; order of June 16, 1988.Affirmed.

II.

Reviewing points on appeal from the denial of post-conviction relief is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.³"The findings and conclusions of the motion court`are clearly erroneous only if, after review of the entire record, the appellate court is left with the definite impression that a mistake has been made.'"⁴

An evidentiary hearing on a Rule 29.15 post-conviction relief motion is only required if: (1) the motion alleges facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the case files and the records; and (3) the matters of which the movant complains have resulted in prejudice.⁵To obtain an evidentiary hearing for claims related to 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.⁶"To demonstrate prejudice, Appellant must allege facts showing a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different."⁷"A reasonable probability is a probability sufficient to undermine confidence in the outcome."⁸"An evidentiary hearing may only be denied when the record conclusively shows that the movant is not entitled to relief."⁹

III.

This Court has already resolved the issue surrounding Appellant's newly added claim of ineffective assistance for motion counsel's alleged failure to raise all fifteen points originally raised by Appellant in his pro se motion.The so-called "materially incomplete action" claim does not fall under the limited scope of an abandonment analysis and is not cognizable under an ineffective assistance argument because there is no recognized constitutional right to counsel in a post-conviction proceeding.¹⁰

IV.

Appellant claims Fifth, Sixth, Eighth and Fourteenth Amendment violations in association with the three points denied by the motion court without hearing.The trial court had ruled that Appellant was not entitled to a hearing on these issues because the record conclusively showed that he was not entitled to relief.

The first of these three points, trial counsel's alleged failure to object and request appropriate supplemental jury instruction, was raised for plain error and denied on direct appeal.¹¹Appellant is correct that the denial of a plain error claim on direct appeal is not dispositive of the question whether counsel was ineffective in failing to preserve the issue as to which plain error was not found.¹²However, on direct appeal this Court found no error, plain or otherwise, with the trial court's decision to restrict jury instructions to those already given.¹³Defense counsel cannot be found to be ineffective for failing to object to the trial court's response to the jury when the response not to supplement the jury instructions was not in error.This point, having already been determined on direct appeal cannot be raised again in a post-conviction relief motion.¹⁴

Appellant's second point, concerning prosecutorial misconduct, was not raised on direct appeal as the motion court had erroneously determined when it denied a hearing on this issue.¹⁵However, even assuming, arguendo, that the prosecutor behaved as alleged, Appellant still failed to meet the standard for requiring an evidentiary hearing because Appellant only offers conclusory statements, not facts, that could demonstrate how these remarks and gestures could have prejudiced the outcome of the trial."[C]ourts will not draw factual inferences or implications in a Rule 29.15 motion from bare conclusions or from a prayer for relief."¹⁶

Appellant's third point denied without evidentiary hearing contends that defense counsel was ineffective for agreeing to a transfer of venue to Cape Girardeau County, because this county had a history of under-representing African Americans in violation of fair cross-section requirements.Appellant also claims defense counsel was ineffective for failing to object to his petit jury panel, which was allegedly under-represented African-Americans.Appellant claims prejudice because he was tried by an "all-white jury" and "was more likely to be sentenced to death and convicted for the killing of the white victims."¹⁷

"A criminal defendant does have a constitutional right to the unbiased selection of a jury drawn from a cross-section of the community."¹⁸"To establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process."¹⁹"Unless it is shown that the difference between the percentage of the individuals in the identifiable group and those within the venires as a whole is greater than 10%, a prima facie case has not been made."²⁰

Appellant failed to demonstrate a competent statistical analysis of the venires in Cape Girardeau County establishing systematic-underrepresentation.Appellant's motion not only failed to examine all of the venires assembled near the time of his trial, but simply selected a few cases tried by the public defender's office that had no statistical correlation or validity.Without alleging facts showing what the venires' makeup was in the appropriate time period, and over time, Appellant cannot show that there was in fact, a history of underrepresentation.Even if his individual panel was underrepresented by the African-American community, "a single panel that fails to mirror the make-up of the community is insufficient to establish a prima facie case of systematic exclusion."²¹

Appellant's fair cross-section claim is meritless.Trial counsel cannot be found to have been ineffective for failing to object to the transfer of venue and Appellant's petit jury panel, because "[c]ounsel cannot be deemed ineffective for failing to raise a nonmeritorious claim."²²

V.

Finally, Appellant claims Sixth, Eighth and Fourteenth Amendment violations for trial counsel's alleged failure: (1) to adequately investigate and present expert testimony during the guilt phase of the trial establishing diminished mental capacity to deliberate, negating this element of first degree murder; and (2) to adequately investigate and present mitigating evidence during the penalty phase of the trial regarding childhood abuse and Appellant's mental state, which could have resulted in delivery of a life sentence as opposed to the death penalty.Appellant seeks a new trial on the basis of the first claim and/or a new penalty phase on the basis of the second claim.

To establish ineffective assistance of counsel, Appellant bears a heavy burden to overcome the strong presumption that counsel provided competent assistance.²³Appellant must identify specific acts or omissions of counsel falling below an objective standard of reasonableness, and the "court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance."²⁴

In terms of an attorney's duty to investigate, an investigation need only be adequate under the circumstances, and "the reasonableness of a decision not to investigate depends upon the strategic choices and information provided by the defendant."²⁵"When counsel knows generally the facts that support a potential defense, `the need for further investigation may be considerably diminished or eliminated altogether.'"²⁶

"The selection of witnesses and the introduction of evidence are questions of trial strategy and...