Royal v. State

• Decision Date: 21 January 1994
• Docket Number: No. 18731,18731
• Parties: Phillip ROYAL, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 552

868 S.W.2d 552

Phillip ROYAL, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.

No. 18731.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 21, 1994.

Pete Carter, Rolla, for plaintiff-appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen. and Traci J. Sanders, Asst. Atty. Gen., Jefferson City, for defendant-respondent.

PARRISH, Chief Judge.

Phillip Royal (movant) was convicted of capital murder. § 565.001, RSMo Supp.1977. After an appeal of that conviction, see State v. Royal, 610 S.W.2d 946 (Mo. banc 1981), movant filed a motion for post-conviction relief pursuant to Rule 27.26 (repealed). Counsel was appointed and filed an amended motion. Following an evidentiary hearing, the motion court filed written findings of fact and conclusions of law and denied the motion. This court affirms.

The attorneys who represented movant in the underlying criminal case (trial counsel) filed a motion to suppress evidence that sought to preclude statements made by movant from being admitted in evidence at his trial. After an evidentiary hearing on the motion to suppress evidence, the motion was granted "as to any question asked the defendant and reply of defendant to response thereof prior to the giving to him the Miranda Warnings." The motion was denied with respect to other statements. Testimony was admitted in evidence of various statements movant made to law enforcement officers after his arrest, including statements he made while incarcerated at the Butler County jail.

No evidence was presented at the suppression hearing of any beatings or mistreatment by law enforcement officers. However, at the Rule 27.26 hearing, movant testified that he was involved in a car accident immediately prior to his arrest; that law enforcement officers pulled him from the vehicle he was driving "by the hair of the head." Movant testified that he was not taken to a hospital after the accident; that he did not see a doctor. He testified, "I just had a little bruise up by my eye and I think I had a little scratch on my forehead."

Movant testified that he was arrested January 13, 1978. He was taken to the Butler County jail. He testified that he was handcuffed from the time of his confinement January 13, "all that day and all that night." According to movant, the handcuffs were removed the next day, January 14. He testified that when he first arrived at the jail, "[T]hey put me in a juvenile tank for a few minutes until they cleared out the cell they called the hole, it's a dungeon cell. Anyway, they put me, they put me in this room and that's where the room I was, you know, for a good while."

Movant testified that he did not sleep the night following his arrest "because officers was coming around kicking on the door, calling me names and I was beaten." Movant was asked the following questions and gave the following answers:

Q. Did, on the 13th and the 14th before you made any statements, did they, did anybody strike you?

A. Yes, sir, I got struck. I got beat.

Q. And do you know who it was that beat you?

A. Larry Woods, Sheriff Junior Stout, another deputy sheriff, I think named Howard DeCourley and other, several other unknown officers.

Q. What injuries did you receive?

A. I got a tooth knocked out up there, up there in the front and I got a, I got, they sprayed me down with mace and, and like I say, I had bruises all over me and my, you know, scratches and, you know, had real bad headaches and I tried to go see a doctor, and I explained this to Mr. Crider [movant's attorney] and on Mr. Crider's preliminary hearing, he went to the Judge and explained to the Judge if they didn't get me up out of there it might have been a problem and that's when I was transferred to Phelps County that the Judge, he was going to get a court order and plus, they took me over to the hospital at that time right after the preliminary hearing was over.

Movant testified that he made statements January 14, 1978, and that his statements were written down. He testified that he was beaten and that a pistol was put to his head and he was told, "[Y]ou said this, said this." He stated, "I just got tired of the beating and stuff and I said, I agree, yeah, I said that, you know."

Movant was represented by appointed counsel in the criminal case. His first appointed counsel was Paul Crider. After preliminary hearing, he was represented by Terry Daley. ¹ Both attorneys were employees of the state public defender's office. Movant testified that he told both of them he had been beaten, but that they did not ask him about being beaten at the suppression hearing in the criminal case.

The only witnesses, other than movant, who testified at the Rule 27.26 hearing were Blaine Brower, formerly an investigator for the Missouri Public Defender's office, and Terry Daley Schwartze.

Blaine Brower assisted the attorneys who represented movant in his criminal case. Mr. Brower accompanied Paul Crider to Butler County and was present on the first occasion Mr. Crider met with movant. He recalled that movant had either scratches or bruises on his head at the time of the initial meeting. He testified that movant told him, at some time, that movant had been beaten. He did not remember when movant gave him that information. He did not recall exactly what movant told him. He did not remember whether movant claimed the beatings were related to movant's statements. The procedures Mr. Brower followed in conducting investigations included maintaining notes on what a defendant told him and placing those notes in the public defender's files.

Mr. Brower continued assisting with the investigation after movant's preliminary hearing. He assisted Ms. Schwartze, the attorney who represented movant at trial, and consulted with her during trial.

Ms. Schwartze first met movant at the Phelps County jail a "couple of months or maybe three or four months" after he had been arrested. She did not recall movant saying anything to her about the condition of his cell at the time he gave statements to law enforcement officers. She did not recall movant ever telling her that statements had been obtained from him as a result of beatings. Ms. Schwartze did not recall movant telling her that statements had been obtained by law enforcement personnel failing to provide medical care or food or water. She had no recollection of any notes in the file she received from the attorney who first represented movant that dealt with beatings, coercions or physical threats.

Ineffective Assistance of Counsel

Movant presents five points on appeal. Two of those points allege the motion court erred in not finding that movant's trial counsel was ineffective. Point I asserts that movant's trial counsel provided ineffective assistance because his attorneys were aware movant "had been beaten to obtain his statements ... and counsel did not bring such evidence fourth [sic] at the motion to suppress or during trial."

Point III asserts that movant's trial counsel was ineffective because she failed to interview a witness, Jay Lucas, prior to trial. Movant contends the trial testimony of Jay Lucas was the only evidence that showed that movant's actions in killing the victim were premeditated.

The parameters of review for claims of ineffective assistance of counsel are explained in Driscoll v. State, 767 S.W.2d 5 (Mo. banc), cert. denied, 493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989).

Our review of the actions of the hearing court is limited to a determination of whether that court's findings, conclusions and judgment are clearly erroneous. Rule 27.26(j); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984).

In reviewing the determinations of the hearing court ..., the focus is on (1) counsel's performance, and, (2) if that performance is deficient, whether prejudice resulted from counsel's breach of duty. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1983); Sanders v. State, Id. at 857-58.

Counsel's performance is assessed by determining if counsel acted "reasonably within prevailing professional norms under all circumstances." See Sanders at 858. "Reasonably effective assistance may be defined as 'the skill and diligence that a reasonably competent attorney would exercise under similar circumstances.' " Sanders at 858, quoting Thomas v. Lockhart, 738 F.2d 304, 307 (8th Cir.1984), quoted in Kellogg v. Scurr, 741 F.2d 1099, 1100 (8th Cir.1984). (Emphasis in Sanders.)

Appellant bears the burden of proving his grounds for relief by a preponderance of evidence. Rule 27.26(f). That burden, with respect to an allegation of ineffective assistance of counsel, has been characterized as being "heavy" to bear. Stevens v. State, 560 S.W.2d 599 (Mo.App.1978); Pickens v. State, 549 S.W.2d 910 (Mo.App.1977); Lahmann v. State, 509 S.W.2d 791 (Mo.App.1974).

Id. at 7.

The motion court made the following findings with respect to the issue presented by movant's first point.

Movant testified ... as to how he was captured, beaten and then made to make incriminating statements. He states he only made the statements because he was beaten and that these statements that he made to the deputies were not true.

Terry Daley Schwartze testified that when she saw the Movant he didn't appear to be beaten up, but that she first saw him after he ha[d] been incarcerated for several months. Blane Brower, who was the public defender's investigator at the time that this case arose testified that Movant had several scratches on him which Movant stated to Brower came from the beatings. It also came out through cross-examination that at the time of his capture, Movant had been driving the victim's car and when he was pursued by law enforcement officials he wrecked the car.

Trial counsel[,] based on these allegations[,] filed and pursued a Motion to Suppress all of the statements and after a hearing by the [trial] Court some of...