Sanders v. State

• Decision Date: 13 October 1987
• Docket Number: No. 69024,69024
• Citation: 738 S.W.2d 856
• Parties: Robert SANDERS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 856

738 S.W.2d 856

Robert SANDERS, Appellant, v. STATE of Missouri, Respondent.

No. 69024.

Supreme Court of Missouri En Banc.

Oct. 13, 1987.

Rehearing Denied Nov. 17, 1987.

Dave Hemingway, St. Louis, for appellant.

William L. Webster, Atty. Gen., Timothy W. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.

BILLINGS, Chief Justice.

Robert Sanders was denied post-conviction relief under Rule 27.26 from his first degree robbery conviction and sentence, as a persistent offender, to life imprisonment. The trial court conducted an evidentiary hearing on Sanders' multiple averments of ineffective assistance of counsel and made findings of fact and conclusions of law rejecting the claims. The Missouri Court of Appeals--Eastern District, reached an opposite view on one of the ineffective assistance charges and reversed the judgment and ordered a new trial. This Court granted transfer and affirms the judgment of the trial court.

The Sixth Amendment guarantees the right to effective assistance of counsel. And, while this allegation is commonly found in proceedings attacking both guilty pleas and trial convictions, a movant is faced with what has often been called a "heavy burden". Jones v. State, 598 S.W.2d 595, 597 (Mo.App.1980). Not only must the movant prove his allegation by a preponderance of the evidence, but the "heavier burden" arises from a presumption that counsel is competent. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979). In determining the issue of ineffective assistance of counsel, the trial court is free to believe or disbelieve evidence--contradicted or undisputed. See Jones, 598 S.W.2d at 597. And, appellate review of the trial court's decision in ruling a Rule 27.26 proceeding is expressly "limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous." (Emphasis added.) Rule 27.26(j); Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984). Such findings and conclusions are deemed clearly erroneous only if, after a review of the entire record, the appellate court is left with the "definite and firm impression that a mistake has been made." Stokes v. State, 688 S.W.2d 19, 21 (Mo.App.1985).

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Seales, 580 S.W.2d at 736. A criminal defendant must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim. In reviewing such a claim, courts are not required to consider both prongs; if a defendant fails to satisfy one prong, the court need not consider the other. And, a court need not determine the performance component before examining for prejudice. If it is easier to dispose of the claim on the ground of lack of sufficient prejudice, the reviewing court is free to do so. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 (emphasis added).

Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

Id.

Before Sanders' trial, Denise Irona was identified as the woman involved in the armed robbery of the jewelry store and she was also charged with the crime. Evidence at Sanders' trial was that a black man and a black woman committed the armed robbery of the jewelry store. Two witnesses, store employees, identified Sanders as the gunman. Sanders presented an alibi defense but did not testify. After Sanders' trial and conviction Irona entered a plea of guilty to the robbery. ¹ Sanders contends the trial court erred in concluding that his trial counsel had not been ineffective in failing to adequately investigate Irona, his co-defendant.

While the right to counsel is the right to effective assistance of counsel, Strickland, 466 U.S. at 686, 104 S.Ct. at 2063, it is not the right to acquittal. The Strickland court described the issue of ineffective assistance of counsel:

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on having produced a just result.

Id. This benchmark has two components: (1) the performance by trial counsel and, (2) the prejudice resulting from the attorney's breach of duty. See id. at 687, 104 S.Ct. at 2064.

The Supreme Court has described the performance component. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Id. The defense attorney must act reasonably within prevailing professional norms under all the circumstances. See id. at 688, 104 S.Ct. at 2064. A reasonableness standard is used by the court to avoid specific rules that could not apply in all situations. See id. at 688-89, 104 S.Ct. at 2064-65. Reasonably effective assistance may be defined as "the skill and diligence that a reasonably competent attorney would exercise under similar circumstances." 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 added).

When examining the reasonableness of a defense attorney's actions, it is necessary to be deferential to his decisions.

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The court must act "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. For these reasons, there is a strong presumption that the attorney's conduct was proper.

Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." (Emphasis added.)

Id. See Jackson v. State, 672 S.W.2d 367 (Mo.App.1984); Wallace v. Lockhart, 701 F.2d 719, 726 (8th Cir.), cert. denied, 464 U.S. 934, 104 S.Ct. 340, 78 L.Ed.2d 308 (1983).

In describing the defense attorney's duty to investigate, the Strickland court said:

[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to cousel's judgment. (Emphasis added)

466 U.S. at 691, 104 S.Ct. at 2066; See also Beans v. Black, 757 F.2d 933, 936 (8th Cir.), cert. denied, 474 U.S. 979, 106 S.Ct. 381, 88 L.Ed.2d 334 (1985). Investigation need only be adequate under the circumstances. See Abrams v. State, 698 S.W.2d 15, 18 (Mo.App.1985). In particular, the reasonableness of a decision not to investigate depends upon the strategic choices and information provided by the defendant. When counsel knows generally the facts that support a potential defense, "the need for further investigation may be considerably diminished or eliminated altogether." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. The selection of witnesses and the introduction of evidence are questions of trial strategy and the mere choice of trial strategy is not a foundation for finding ineffective assistance of counsel. Franklin v. State, 655 S.W.2d 561, 565 (Mo.App.1983). Only rarely does a court find that failure to interview witnesses is sufficient to justify the finding of ineffective assistance of counsel. Plant v. Wyrick, 636 F.2d 188, 189 (8th Cir.1980).

Even before the Strickland decision, Missouri courts recognized that in some cases it is reasonable for defense counsel not to conduct investigations of and interviews with witnesses and that each case is to be judged under its own specific circumstances. See, e.g., Aikens v. State, 549 S.W.2d 117, 121 (Mo.App.1977). Moreover, in some circumstances, a defense counsel's decision not to interview some witnesses suggested by the defendant is a matter of trial strategy and within the counsel's professional judgment. See, e.g., Sweazea v. State, 588 S.W.2d 244, 246 (Mo.App.1979).

Here, Sanders' retained counsel received her license to practice law in 1979. She had served as an assistant prosecuting attorney from 1979 through 1981. Since 1981 she has been in private practice and at least one-third of her practice was in the criminal area. At the evidentiary hearing in this post-conviction proceeding counsel testified that in defending Sanders she considered it important not to connect Sanders and Irona in any way. A link had been established between Sanders and Irona through a reference to Irona in an address book seized from Sanders after his arrest, but defense counsel was successful in suppressing the address book from evidence.

Sanders testified that he asked his counsel to interview Irona. He stated that he was not acquainted with her and that he believed she would testify that he did not participate in the robbery. After being asked to interview Irona, defense counsel did talk to her by telephone. ² Evidently no information beneficial to Sanders was...