Smulls v. State

• Citation: 71 S.W.3d 138
• Decision Date: 26 February 2002
• Docket Number: No. SC 83179.,SC 83179.
• Parties: Herbert SMULLS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

71 S.W.3d 138

Herbert SMULLS, Appellant, v. STATE of Missouri, Respondent.

No. SC 83179.

Supreme Court of Missouri, En Banc.

February 26, 2002.

Rehearing Denied April 23, 2002.

William J. Swift, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Mr. Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for Respondent.

Robert Popper, Burnele V. Powell, Kansas City, MO, Christine B. Hickman, San Diego, CA, for Amicus Curiae.

LIMBAUGH, Chief Justice.

Herbert Smulls was convicted in the Circuit Court of St. Louis County of first-degree murder and other crimes and was sentenced to death. On appeal, his convictions and sentence were affirmed, but the judgment on his Rule 29.15 post-conviction motion was reversed. State v. Smulls, 935 S.W.2d 9 (Mo. banc 1996), cert. denied, 520 U.S. 1254, 117 S.Ct. 2415, 138 L.Ed.2d 180 (1997). On remand, his post-conviction motion was overruled, but again the judgment was reversed on appeal. Smulls v. State, 10 S.W.3d 497 (Mo. banc 2000). On the latest remand, the post-conviction motion was again overruled. This Court has jurisdiction. Mo. Const. art. V, sec. 10. The judgment is affirmed.

I. Background

In 1991, Smulls was charged with first-degree murder, first-degree assault, two counts of first-degree robbery, and two counts of armed criminal action. The jury convicted Smulls of robbery but could not come to a verdict on the other charges. On retrial, Smulls was convicted on all the remaining counts. Judge William Corrigan presided at both trials. The facts surrounding the offenses, as reported in this Court's original opinion, are as follows:

Stephen and Florence Honickman owned and operated a jewelry business. Typically, customers wold make an appointment to examine the jewelry for sale. In early July 1991, a person identifying himself as "Jeffrey Taylor" called the Honickmans and made an appointment to buy a diamond. "Jeffrey Taylor" was later identified as defendant. On July 22, 1991, defendant and Norman Brown went to the Honickmans' store. After viewing several diamonds, defendant and Brown left the store without making a purchase.

On the afternoon of July 27, 1991, defendant and Norman Brown followed another customer into the store. Florence Honickman was unable to show them any jewelry at that time but suggested she might be able to help them later. Defendant and Brown returned to the store that evening. After viewing some diamonds, defendant and Brown went into a hallway, purportedly to discuss the diamond prices. A short time later, Florence Honickman looked up and saw defendant aiming a pistol at her. She then ran and hid behind a door. Defendant fired three shots at her, striking her arm and side. Defendant then fired several shots at Stephen Honickman, who was struck three times. Defendant and Brown stole jewelry worn by Florence Honickman and other items in the store. After the two men left the store, Florence Honickman contacted the police. Stephen Honickman died from his wounds, and Florence Honickman suffered permanent injuries from the attack.

A short time after the robbery, police stopped defendant and Brown for speeding. While defendant was standing at the rear of his car, the police officer heard a radio broadcast describing the men who robbed the Honickmans' store. Defendant and Brown fit the descriptions. The officer ordered defendant to lie on the ground. Defendant then ran from his car but was apprehended while hiding near a service road. The police found jewelry and other stolen items from the store in the car and in Brown's possession. The following morning police found a pistol on the shoulder of the road on which defendant drove prior to being stopped for speeding. Bullets test fired from the pistol matched bullets recovered from the store and Stephen Honickman.

State v. Smulls, 935 S.W.2d at 13. In penalty phase, the jury found the existence of three statutory aggravating factors:

[T]he murder of Stephen Honickman was committed while defendant was engaged in the attempted unlawful homicide of Florence Honickman; the defendant murdered Stephen Honickman for the purpose of defendant receiving money or any other thing of monetary value from Stephen Honickman; and, the murder of Stephen Honickman was committed while defendant was engaged in the perpetration of a robbery.

Id. at 24. Additionally, the state introduced evidence of non-statutory aggravating circumstances including Smulls' eleven prior felony convictions. In affirming the judgment imposing the death sentence, this Court determined 1) that the sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor, 2) that the jury's finding of the statutory aggravating circumstance was supported by the record, and 3) that the sentence was not excessive or disproportionate to similar cases.

Despite the fact that Smulls' convictions and death sentence were affirmed, this Court held that certain comments Judge Corrigan made during a Batson hearing at voir dire provided "an objective basis upon which a reasonable person could base a doubt about the racial impartiality of the trial court." Id. at 26. These comments, coupled with allegations of pre-trial out-of-court misconduct and Judge Corrigan's status as a potential witness on those allegations, required his disqualification from Smulls' Rule 29.15 hearing. Id. at 27. Accordingly, Judge Corrigan's denial of Rule 29.15 relief was reversed, and the case was remanded for a new hearing. On remand, Judge Emmett O'Brien, another member of the St. Louis County Circuit Court, was assigned to hear the motion. Smulls filed motions to voir dire and disqualify Judge O'Brien and all other past and present St. Louis County judges. Judge O'Brien overruled those motions and denied the Rule 29.15 motion on the merits. On appeal, this Court held that statements in a deposition taken of Judge Corrigan indicated that prior to taking the case, Judge O'Brien may have discussed the case with Judge Corrigan and should possibly have recused himself from the 29.15 hearing. Smulls v. State, 10 S.W.3d at 504. This Court remanded for determination of the recusal issue, but with the following proviso:

[I]f ... the hearing court finds no basis for disqualification of Judge O'Brien, the Rule 29 proceedings may be reassigned to Judge O'Brien for re-entry of his judgment.

Id. at 505.

On remand, the case was assigned to Judge James Hartenbach, yet another member of the St. Louis County Circuit Court, who, after an evidentiary hearing, determined that the motion to disqualify Judge O'Brien was properly overruled. Pursuant to this Court's directive, Judge Hartenbach ordered the case reassigned to Judge O'Brien, and Judge O'Brien then re-entered his judgment overruling Smulls' Rule 29.15 motion. Smulls now appeals the determination that Judge O'Brien could properly hear the motion as well as Judge O'Brien's denial on the merits of his Rule 29.15 motion.

II. Smulls' Motion to Disqualify All St. Louis County Judges

After the 1996 remand, Smulls filed a motion to disqualify all current and former judges of the St. Louis County Circuit. That motion was overruled. The issue was briefed on the second appeal to this Court and denied. Smulls v. State, 10 S.W.3d at 499-500. Smulls now attempts to raise the issue again. However, this Court's earlier resolution of the issue on the merits is the law of the case and the issue may not be raised again. Williams v. Kimes, 25 S.W.3d 150, 153-54 (Mo. banc 2000).

III. Motion to Disqualify Judge O'Brien

A. Exclusion of Evidence

Smulls first claims that Judge Hartenbach erred in excluding certain evidence from the hearing that pertained to Judge O'Brien's alleged bias: (1) the testimony of two judges from St. Louis City expressing concern that a campaign was being waged by other judges in favor of Judge Corrigan and against the author of this Court's first opinion; (2) letters sent to this Court by other judges on Judge Corrigan's behalf asking this Court to rehear Smulls' case; and (3) certain newspaper articles from the St. Louis Post-Dispatch harshly critical of Judge Corrigan.

Smulls contends the evidence is relevant because it would engender sympathy for Judge Corrigan and pressure Judge O'Brien to vindicate his fellow judge. Additionally, Smulls points to this evidence to establish that Judge O'Brien was influenced by extra-judicial factors, giving rise to an appearance of impropriety. See State v. Hunter, 840 S.W.2d 850, 866 (Mo. banc 1992).

Judge Hartenbach rejected this evidence because it was irrelevant. This Court agrees. Smulls did not show that Judge O'Brien had been exposed to any of the specific evidence in question, nor did Smulls attempt to ask Judge O'Brien about it during O'Brien's testimony at the hearing before Judge Hartenbach. Although Judge O'Brien testified that he was generally aware of newspaper articles on the issue, he could not recall the content of any of them. As for the concern from the two St. Louis City judges and the letters to this Court, Judge O'Brien testified that he was not aware of any effort by the legal community to influence this Court's opinion. Because he had no knowledge of the rejected testimony, letters, and articles, they could not have influenced him. Even if Judge O'Brien had been aware of the evidence, this alone would not require his disqualification because judges are presumed to be able to set such evidence aside in deciding a case. See State v. Taylor, 929 S.W.2d 209, 220 (Mo. banc 1996).

B. Judge O'Brien's Impartiality

Smulls next claims Judge Hartenbach erred in his determination that Judge O'Brien could impartially hear Smulls' Rule 29.15 motion on remand. The basis of the claim, from Smulls' point relied on, is that "O'Brien was with Corrigan when Corrigan condemned this Court's calling him `a racist' and O'Brien may have participated in criticizing language that produced lobbying against this Court...