Schaal v. State

• Decision Date: 30 December 2005
• Docket Number: No. 26798.,26798.
• Citation: 179 S.W.3d 907
• Parties: Larry SCHAAL, Movant-Respondent, v. STATE of Missouri, Respondent-Appellant.
• Court: Missouri Supreme Court

179 S.W.3d 907

Larry SCHAAL, Movant-Respondent, v. STATE of Missouri, Respondent-Appellant.

No. 26798.

Missouri Court of Appeals, Southern District, Division Two.

December 30, 2005.

Dean G. Dankelson, Prosecuting Attorney, Nathaniel D. Dally, Assistant Prosecuting Attorney, Joplin, for appellant.

Mark A. Grothoff, Columbia, for respondent.

KENNETH W. SHRUM, Presiding Judge.

Larry Schaal ("Movant") sought post-conviction relief via a Rule 29.15 motion after he was convicted of rape (§ 566.030.3).¹ After an evidentiary hearing, the motion court made findings of fact and reached conclusions of law that reproduced essentially what Movant's post-conviction lawyer alleged in an amended Rule 29.15 motion. With that as its basis, the motion court vacated Movant's conviction and sentence and ordered a new trial. The State appeals. This court reverses and remands in part.

FACTS

Movant was convicted of raping a child ("Victim") when she was seven years old. He was first convicted of this crime in October 1987 and sentenced to a thirty-year prison term. The first case was affirmed in State v. Schaal, 806 S.W.2d 659, 669 (Mo.banc 1991), as was the denial of his initial post-conviction motion.

Movant then sought habeas corpus relief in federal district court. The district court held that the State's use of a videotaped interview of Victim in Movant's 1987 trial violated his Confrontation Clause rights and ordered a new trial. This decision was affirmed in Schaal v. Gammon, 233 F.3d 1103 (8th Cir.2000).²

Movant's new trial began in June 2001, nearly fifteen years after Movant was first charged. By then, Victim was twenty-two years old. She testified that in 1986, Movant was dating Victim's mother ("Mother"). Initially, Movant was friendly toward Victim and acted as a "father figure," but Victim ultimately began to feel uncomfortable with Movant and was afraid of him. Because of this, Victim objected when Mother proposed leaving her with Movant at his house on the day of the rape. She was left there, however, and after she bathed, she went to the living room to get her pajamas. She had wrapped herself in a towel and when she would not remove the towel as Movant instructed, he (Movant) took away the towel and raped her.

In the June 2001 trial, defense counsels' efforts were to plant reasonable doubt in the jurors' minds about the crime's occurrence. This was done in two ways. First, they focused on inconsistencies in Victim's testimony, namely, discrepancies between her at-trial testimony in 2001, her 1986 and 1987 statements to Mother and DFS workers, and her 2001 deposition testimony. Second, they adduced evidence that Victim and Mother became angry and upset with Movant when, shortly before the rape allegation surfaced, Movant ended the relationship between Mother and him. Via the latter, the defense implicitly suggested there was a revenge motive and that Victim made up the rape story, either acting on her own or at Mother's suggestion. As one defense lawyer explained it, "My strategy . . . [was] to get an acquittal[ ]" by showing "fabrication."

The jury convicted Movant and he was sentenced as a persistent sexual offender to thirty years' imprisonment. The resultant judgment was affirmed in State v. Schaal, 83 S.W.3d 659 (Mo.App.2002).

Movant then filed a timely motion per Rule 29.15 seeking post-conviction relief. A court-appointed lawyer filed an amended motion, alleging Movant's criminal lawyers were ineffective for failing to call certain witnesses and use their testimony to impeach Victim's credibility. The motion also alleged that his defense lawyers were constitutionally ineffective in their cross-examination of Victim; they did not adequately demonstrate the inconsistencies in her several accounts of the rape. Finally, Movant's post-conviction lawyer incorporated part of Movant's pro se motion in the amended motion.

After an evidentiary hearing, the motion court ruled favorably to Movant, vacated the sentence and judgment, and ordered a new trial. In doing so, the motion court purported to fulfill its duty to make findings and conclusions on Movant's "failure to impeach" allegations by essentially reproducing what Movant had alleged in his amended Rule 29.15 motion (at least as to all but one of those claims). As to Movant's other allegations, the court disposed of them thusly: "[M]ovant asserts other grounds which this court finds are meritorious. Given the Court's findings above, these paragraphs are not discussed at length."

This appeal by the State followed.

STANDARD OF REVIEW

In a post-conviction case, an appellate court must affirm the rulings of the motion court unless it appears that its findings, conclusions, and judgment are "clearly erroneous." Rule 29.15(k); Johnson v. State, 102 S.W.3d 535, 537[1] (Mo.banc 2003). A motion court's findings and conclusions are clearly erroneous if, after a review of the entire record, the reviewing court is left with the definite and firm impression that a mistake has been made. Id. at 537-38[2]. These standards apply whether the movant or the state appeals. Laney v. State, 584 S.W.2d 411, 413 (Mo.App.1979).

To prevail on a claim of ineffective assistance of counsel, a movant must show: First, that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). This prejudice is shown where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.

If a movant fails to satisfy either the performance or the prejudice prong of the Strickland test, then an appellate court need not consider the other, and the movant's claim must fail. Vogel v. State, 31 S.W.3d 130, 135[3] (Mo.App.2000). Review of the motion court's judgment focuses upon whether the alleged error caused Movant to suffer a genuine deprivation of his right to effective assistance of counsel, such that our confidence in the fairness of the trial is undermined. Wolfe v. State, 96 S.W.3d 90, 93[6] (Mo.banc 2003).

DISCUSSION AND DECISION

The State's first point relied on maintains the motion court clearly erred when it ruled Movant's trial lawyers were constitutionally ineffective for not calling certain witnesses and by not adequately cross-examining Victim. The essence of the State's argument is that Movant's lawyers clearly made acceptable trial strategy choices regarding these matters and that, in any event, Movant was not prejudiced by the alleged deficient conduct.³

We start our review mindful that "the findings of fact and conclusions of law of the motion court are presumptively correct." State v. Gilpin, 954 S.W.2d 570, 575[1] (Mo.App.1997) (citing Wilson v. State, 813 S.W.2d 833, 835 (Mo.banc 1991)). On the other hand, the presumption of "correctness" is offset here by the motion court's questionable practice of making findings of fact and conclusions of law by merely repeating whatever Movant alleged in his Rule 29.15 motion.

In pertinent part, Rule 29.15(j) mandates that a motion court "issue findings of fact and conclusions of law on all issues presented." Early on, the Supreme Court of Missouri made it clear that "[s]pecific findings and conclusions are contemplated and required" in post-conviction cases, and only "if that is done can the appellate court make the kind of review contemplated" for post-conviction cases. Fields v. State, 572 S.W.2d 477, 483 (Mo.banc 1978). An order that purports to comply with Rule 29.15(j) by merely referencing one of the parties' pleadings, although not per se clearly erroneous, is of doubtful utility. Leady v. State, 714 S.W.2d 221, 222[1] (Mo.App.1986).

In another context where the propriety of a court using a party's proposed findings and conclusions was addressed, it has been said that so "long as the court thoughtfully and carefully considers the parties' proposed findings and agrees with the content, there is no constitutional problem with the court adopting in whole . . . the findings of fact and conclusions of law drafted by one of the parties." State v. Kenley, 952 S.W.2d 250, 261[4] (Mo.banc 1997). It is axiomatic, however, that the findings and conclusions must be supported by the evidence. Id.

Point I: Failure to Call Witness Brennfoerder

The State maintains, inter alia, that the motion court clearly erred when it found Movant's criminal lawyers ineffective for failing to call Bonnie Brennfoerder as a witness. On that issue, Movant alleged and the motion court essentially found that

"Bonnie Brennfoerder would have testified if called that she and her husband visited movant and [Mother] with Kevin Kline [a preacher at a church attended by these persons] prior to the allegations being made in this case. Kevin recommended to them that they not marry, and Bonnie agreed. Movant also agreed that marriage was not a good idea. [Mother] became upset and stated she did not want the relationship to end. [Mother] expressed hurt and anger at movant and stated she was going to make movant `pay' for not marrying her; Ms. Brennfoerder's testimony would have supported movant's desired defense theory that the alleged victim had been led to fabricate her allegations by her mother because movant had ended any marriage plans. Movant provided Bonnie Brennfoerder's name to counsel as a possible witness prior to movant's trial, and Mrs. Brennfoerder was willing and able to testify to the foregoing. No reasonable trial strategy could account for the failure to call Mrs. Brennfoerder. Reasonably competent counsel would have called Mrs. Brennfoerder to testify at movant's trial. Had she done so, a reasonable probability...