Smith v. State
| Decision Date | 19 November 2013 |
| Docket Number | No. ED 99547.,ED 99547. |
| Citation | 413 S.W.3d 709 |
| Parties | Mark A. SMITH, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Ellen H. Flottman, Columbia, MO, for Movant/Appellant.
Jennifer A. Rodewald, Jefferson City, MO, for Respondent/Respondent.
Mark A. Smith (Movant) appeals from the motion court's judgment denying his amended Motion to Vacate, Set Aside or Correct Judgment and Sentence filed pursuant to Rule 24.0351 (post-conviction motion) following an evidentiary hearing. We affirm.
For events occurring on August 18, 2007, the State charged Movant with one count of first-degree (reckless) involuntary manslaughter and one count of leaving the scene of an accident. On March 16, 2009, Movant appeared before court with his counsel, James Pennoyer (counsel or Pennoyer), and pled guilty to the charges. At the plea hearing, Movant was advised of his trial rights and that he was giving up these rights by pleading guilty. Movant indicated he understood. Movant stated he understood the range of punishment and that he was entering an open plea. Movant stated no one had coerced him or made any threats or promises in order to get him to plead guilty. The court read the charges to Movant and Movant stated he understood the charges against him.
The State then set forth the factual basis for the plea. On August 18, 2007, Movant and the victim, Kevin Fenwick (Fenwick), were at two different parties. Movant was at his residence playing a drinking game called Beer Pong before proceeding to another location where witnesses saw Movant “acting like he was intoxicated, stumbling, [and smelling] of beer.” Movant then got into his vehicle and chased his ex-girlfriend to another location where the two argued. At approximately 1:30 a.m., Movant and his passenger, Michael Kearns, left this location in Movant's truck. Around this time, Fenwick left the party he attended and began walking home on New Diggins Road.
At approximately 2:00 a.m., Movant, who was operating the motor vehicle at approximately 60 to 73 miles per hour (mph), came upon Fenwick in the roadway. Movantclaimed Fenwick was sitting in the middle of the roadway but then stood up, turned around and waved his arms at Movant. Movant “took no evasive action and struck [Fenwick] at approximately 63 miles per hour, throwing [Fenwick] approximately 217 feet further down the road and causing reasonably close to immediate death[.]” The prosecutor stated the evidence would show Movant “never braked, never took evasive action, never did anything to avoid that accident.” The prosecutor stated the evidence would have shown that Movant had crossed the center line or failed to maintain the right half of the roadway with sufficient width.
Movant did not stop after the collision but instead drove home and hid the vehicle where it could not be seen from the roadway. Movant's neighbor reported seeing Movant carrying pieces of the truck and hiding them in the woods near his home. Upon executing a search warrant of Movant's home, police discovered Movant had packed his suitcases. The prosecutor stated that in an interview with police, Movant admitted consuming alcohol the day of the accident, to striking Fenwick while traveling approximately 60 mph, and failing to stop after the accident to determine whether Fenwick was alive.
Movant confirmed that the factual basis for the charges against him, as set forth by the prosecutor, was true. Movant stated he was pleading guilty because he was actually guilty.
The plea court's examination included the following:
Q. [Movant], you have been represented in this case by James Pennoyer. Was there anything you asked him to do as your attorney that he failed to do?
A. No, sir.
Q. Was there anything you asked him not to do in this case, and that might be not contacting certain witnesses that you didn't want to bother, or something like that, that he did anyway?
A. No, sir.
...
Q. [Movant], it that true? Have you had a chance to look at whatever reports the State has prepared and provided Mr. Pennoyer, along with any other evidence that the State might have provided him?
A. Yes, sir. I have.
Q. Do you feel you have had enough time to read and consider all of that information?
A. Yes, sir.
The court accepted Movant's pleas of guilty as knowingly, intelligently, and voluntarily made and found Movant had the effective assistance of counsel.
On May 28, 2009, the plea court sentenced Movant to a seven-year term on the conviction for involuntary manslaughter and a consecutive two-year term on the conviction for leaving the scene of an accident. At the hearing, Movant stated he had sufficient time to discuss the case with counsel and that, aside from seeking a bond reduction, counsel had done everything he had asked him to do. When asked if he expected the State to recommend a particular sentence or whether any limit on sentences had been communicated to him, Movant stated, “No. I feel as if I was talked into pleading guilty, and the worst that would happen was presumptive.” Movant stated he did not know if he was satisfied with counsel's services. The court found there was no probable cause to believe Movant received ineffective assistance of counsel and found Movant had received effective assistance.
On November 23, 2009, Movant file his pro se post-conviction motion. Appointed counsel filed an amended motion alleging Movant's plea was not knowingly, intelligently and voluntarily made due to plea counsel's ineffectiveness. The amended motion alleged, in part, that counsel was ineffective for failing to investigate Movant's case by not hiring a expert accident reconstructionist.
On April 20, 2012, the motion court conducted an evidentiary hearing on Movant's amended post-conviction motion. The Missouri Highway Patrol's (Patrol) Reconstruction Report was admitted into evidence at the hearing. According to the report, Movant was driving north on New Diggins Road at approximately 1:30 a.m. New Diggins Road is a paved road, 18.4 feet in width with no painted center or outer edge lines. The roadway is wide enough for two cars to pass safely. There is no artificial light in the area and the speed limit is 60 mph. While the road curves approximately 1,000 feet south of the accident, the road is straight in the area of impact.
According to the Patrol's report, Movant told police he was traveling at approximately 60 mph when he drove around the curve and saw Fenwick sitting in the road. Movant stated Fenwick's back was facing him and as Movant approached, Fenwick stood up, turned around and raised his arms. Movant told police that in an attempt to avoid Fenwick, he oversteered and drove off the side of the road. Movant stated he was “reasonably sure” that he struck Fenwick but did not stop after the accident. Movant told police he had consumed alcohol prior to the crash.
The Patrol determined the area of impact based upon the location of the debris, body fluid, tissue, and a penny in the roadway. The penny was located approximately 12.7 feet from the outer edge of the northbound lane, placing it in the southbound lane. The next piece of evidence as to impact location was blood spray on the pavement 7.2 feet north of the penny and 10.2 feet from the outer edge of the northbound lane. Fenwick's body traveled approximately 169.8 feet north across the pavement and approximately 50.9 feet west across the dirt and grass terrain adjacent to the road, a total of 220.7 feet. The Patrol calculated that the impact speed needed to cause Fenwick's body to travel approximately 220.7 feet was 63 to 70 mph. The Patrol found the evidence indicated Movant, while traveling north, crossed the center portion of the roadway and struck Fenwick while he stood in the southbound lane.
The Patrol calculated that the total distance needed for a driver traveling at 60 mph at night to perceive, react, and then stop is 416.62 feet based on tests conducted by the Institute of Police Technology and Management.2 The Patrol's report opined that a driver's perception and reaction time would increase if he had been consuming intoxicants or was inattentive to his surroundings.
The Patrol found Movant had failed to take any evasive action to avoid colliding with Fenwick. The Patrol concluded the crash could have been avoided if Movant would have remained on the right half of the roadway or stopped the vehicle prior to striking Fenwick or if Fenwick would have moved out of the way as the vehicle approached.
Tom Morris (Morris), a traffic accident reconstructionist, reviewed and evaluated the evidence of the accident at the request of post-conviction counsel and testified at the evidentiary hearing on Movant's behalf. Morris testified his conclusion and evaluation differed from the Patrol's, as he was examining the likelihood that the vehicle would have been able to successfully avoid the victim.
Morris testified it is possible that a driver may operate at or near the center line on a narrow roadway. Morris stated there was some uncertainty as to where Fenwick was standing when struck, taking issue with the Patrol's consideration of the penny in the roadway because he did not believe there was any evidence that it was related to this particular incident. Morris opined that without a clear indication of Fenwick's precise location on the roadway at impact, there was insufficient evidence to establish the location of Movant's vehicle on the roadway upon impact.
At the time of the accident, Fenwick was wearing a brown shirt and yellow shorts. Morris stated the average recognition distance of a driver utilizing his “low beam”...
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