Rousan v. State

• Decision Date: 15 May 2001
• Citation: 48 S.W.3d 576
• Parties: (Mo.App. S.D. 2001) William L. Rousan, Appellant v. State of Missouri, Respondent. SC82406 0
• Court: Missouri Court of Appeals

48 S.W.3d 576 (Mo.App. S.D. 2001)

William L. Rousan, Appellant v. State of Missouri, Respondent.

SC82406

Supreme Court of Missouri

05/15/2001

Appeal From: Circuit Court of St. Francois County, Hon. Timothy J. Wilson

Counsel for Appellant: Laura G. Martin

Counsel for Respondent: Stacy L. Anderson and John M. Morris

Opinion Summary: A jury found William Rousan guilty of two first-degree murders for killing Charles and Grace Lewis in September 1993. He was sentenced to life without parole and to death. The Court affirmed his sentences on appeal. He now appeals denial of post-conviction relief.

Court en banc holds: Rousan failed to show his counsel provided ineffective assistance.

(1) Counsel were not ineffective for failing to present Rousan's past prison and other records. The records contained misconduct evidence that could have been prejudicial. Defense counsel called six witnesses for mitigation evidence.

(2) Counsel were not ineffective for failing to call a former employer to testify to Rousan's work ethic. Counsel contacted the witness. The witness would testify to Rousan's temper when fired. Rousan's good work right after the murders could weigh against him. No logical inference exists that equates working well with adjusting to prison life.

(3) Counsel were not ineffective in failing to make a meritless objection to the prosecutor's argument. The prosecutor may say prison workers will have contact with Rousan to rebut Rousan's argument that life imprisonment would protect society.

(4) The court did not clearly err in determining that Rousan, on counsel's advice, decided not to testify. The court is entitled to believe counsel's testimony. There is no reasonable probability that Rousan's testimony would have changed the result. It was subject to impeachment for its inconsistency with his confession.

(5) Rousan did not establish that his son (who also murdered the victims) would have testified, that counsels' failure to call his son was other than reasonable trial strategy, or that his son's testimony would have provided a viable defense. The son contradicted earlier statements, was not believable, and gave statements damaging to the defense.

(6) Rousan failed to present credible evidence that an attorney request form was filled out. The record shows Rousan was repeatedly advised of his rights, and there was no evidence at the suppression hearing that he requested an attorney. None of Rousan's counsel could find the form, and Rousan could not produce it at his post-conviction hearing.

(7) Highway patrol officers' personnel records did not contain information about their action in this case and did not relate to Rousan's guilt or innocence. The records could not impeach the officers, as the records did not relate to truth and veracity.

(8) Rousan was not prejudiced by counsel's failure to redact Rousan's prior convictions from his confession. He interjected them on his own to tell a unique story, which would be incomplete without them. His convictions had already been brought up to the jury in voir dire, and the court had told the jurors that his convictions could not be used to find him guilty.

(9) Counsel were not ineffective in failing to call the cellmate of another relative involved with the murders. Rousan failed to show prejudice or a reasonable probability of a different result, especially since one cellmate testified and was impeached.

(10) Counsel was not ineffective for failing to object that an aggravator was cumulative, which objection Missouri law has consistently rejected.

(11) The aggravating circumstance was sufficient to uphold the death sentence.

(12) Contrary to Rousan's contention, the record shows counsel cross-examined a witness about a statement he made.

(13) Rousan's work records were not presented because they did not preclude him from casing the farm.

(14) Rousan's contention that a witness's testimony was improperly obtained by inducement of leniency is misplaced on an overruled federal court decision.

(15) The evidence was sufficient for reasonable people to find Rousan guilty.

Price, C.J., Limbaugh, White, Holstein and Benton, JJ., and Crahan, Sp.J., concur. Stith, J., not participating.

Michael A. Wolff, Judge

A jury found William L. Rousan guilty of two counts of first degree murder for the deaths of Charles and Grace Lewis. Section 565.020.1. He was sentenced to life without parole for Mr. Lewis' murder and death for Mrs. Lewis' murder. He appealed, and this Court affirmed. State v. Rousan (Rousan I), 961 S.W.2d 831 (Mo. banc 1998). Rousan's Rule 29.15 motion for post-conviction relief claiming ineffective assistance of counsel was overruled. He appeals the denial of his Rule 29.15 motion to this Court and raises fifteen points of error. This Court has jurisdiction. Mo. Const. art. V, section 10. We affirm.

The Facts and Trial Court Judgment

The facts must be viewed in the light most favorable to the verdicts. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, 513 U.S. 837 (1994). Since the standard under which we view the facts is the same as for a direct appeal, the facts of Rousan I, are adopted and summarized in this opinion.

On September 21, 1993, Rousan, his son, Brent Rousan, and Rousan's brother, Robert Rousan, met and discussed stealing cattle from Charles and Grace Lewis. Charles Lewis, 67, and his wife, Grace, 62, lived near the farm where Rousan resided. Having devised a plan, the Rousans set out for the Lewis farm. On the way they discussed killing Mr. and Mrs. Lewis. They agreed that "if it had to be done it had to be done."

As Rousan, Robert, and Brent drove past the Lewis farm, Rousan pointed out the cattle that they would be stealing. Rousan parked his truck approximately two miles from the farm. He got out of the truck and removed a .22 caliber rifle that belonged to his girlfriend, Mary Lambing. He loaded the rifle for use in the crime "in case anyone was home. " Rousan and his son then argued over who would carry the gun. Brent said that he was "man enough to do whatever needed to be done and that he would use the weapon." Rousan at first stated that Brent was not man enough, but eventually gave him the gun. He warned Brent that if they were caught, they would "fry." The three men then hiked through the woods to the Lewis farm where they waited under cover behind a fallen tree.

Between 3 p.m. and 4 p.m. that afternoon, Mr. and Mrs. Lewis returned home. Mr. Lewis began to mow the lawn. Mrs. Lewis spoke on the phone to the couple's oldest daughter, who called at approximately 4 p.m.

Brent grew tired of waiting and exclaimed that he wanted to "do it." Rousan told Brent to wait until Rousan and Robert had secured the house. Rousan headed for the front door and Robert made his way to the back door. Before they got to the door, Mr. Lewis saw Brent and called out. Brent fired at least six shots from the rifle, all of which struck Mr. Lewis. Mr. Lewis died as a result of the multiple gunshot wounds.

Mrs. Lewis, speaking by telephone with her daughter, told her daughter that she heard gunfire and hung up the telephone. As Mrs. Lewis exited the house through the front door, Brent shot her several times. Although the bullets fractured both of Mrs. Lewis' arms, the wounds were not fatal. Mrs. Lewis ran back into the house. Rousan followed her, removed a garment bag from a coat rack, placed the bag over Mrs. Lewis' head and the upper part of her body, picked her up, and carried her outside. When Rousan placed Mrs. Lewis on the ground, she was alive. Rousan turned to Brent and instructed him to "finish her off." Brent fired one shot into the left side of Mrs. Lewis' head. The shot killed her.

The three men wrapped the bodies in a tarpaulin and tied it with a rope. Rousan instructed that they should pick up the shell casings and clean up the blood stains. After doing so, the men deposited the bodies near a shed and left, planning to return later to get the bodies and the cattle.

The three men, along with Jerry Rousan, another of Rousan's brothers, returned to the Lewis farm that night. There they loaded the bodies into Mr. Lewis' truck. They took two cows, a VCR, jewelry, soda, two gas cans, and a saddle. The four men then returned to Mary Lambing's farm, where Rousan lived. On the return trip, Brent bragged about the murders. At the Lambing farm, the men buried Mr. and Mrs. Lewis in a shallow grave by the barn. After digging the grave and placing the bodies in it, the men poured concrete over the bodies. They covered the grave with a pile of manure. They burned rags used to clean the blood from the Lewis house.

The men disposed of the Lewises' property in various ways. On the night of the murders, the men consumed the soda. The cows were later sold at auction. Robert Rousan gave the VCR to his sister and brother-in-law, Barbara and Bruce Williams, on the day following the murders. Mr. and Mrs. Williams sold the VCR to a local pawnbroker approximately eight months later. Rousan buried the couple's personal items. He gave the remainder of the jewelry to Mary Lambing on special occasions during the following year. The four men hid and later burned Mr. Lewis' truck.

Rousan, armed with a .22 caliber rifle, was arrested at the barn without incident. He was taken to the Washington County sheriff's department. There, the officers advised Rousan of his Miranda rights and questioned him.

Rousan provided information that implicated himself in the murders. He told the police that he had first met the victims in 1975. He saw them again in 1989 after he escaped from custody in the State of Washington and sought refuge at their farm. When Mr. Lewis discovered Rousan hiding in his barn, Mr. Lewis fed him, clothed him, and when Rousan left the farm two weeks later, Mr. Lewis gave him twenty dollars. Shortly after that time, Rousan was apprehended and returned to prison.

After release from prison in June of 1993, Rousan...