State v. Carter

Citation955 S.W.2d 548
Decision Date21 October 1997
Docket NumberNo. 78625,78625
PartiesSTATE of Missouri, Respondent, v. Lemoine CARTER, Appellant.
CourtUnited States State Supreme Court of Missouri

Laura G. Martin, Asst. Appellate Defender, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro, Asst. Atty. Gen., Jefferson City, for Respondent.


Lemoine Carter was convicted of two counts of first degree murder and two counts of armed criminal action. After the jury was unable to agree on sentencing, the circuit court imposed a sentence of death on each count of murder and life on each count of armed criminal action. Carter filed a motion for post-conviction relief pursuant to Rule 29.15. Without an evidentiary hearing, the circuit court denied post-conviction relief. This Court has jurisdiction of the appeals. Mo. Const. art. V, sec. 3.


Carter does not dispute the sufficiency of the evidence to sustain the convictions. Viewed in a light most favorable to the verdicts, the facts are as follows:

Carter lived in Kansas City with his wife, Laquitta. Carter was employed at Kenny's Newsroom, a restaurant and bar in Kansas City, Missouri. On April 17, 1994, Carter's wife drove him to Kenny's Newsroom to play pool. While there, a man Carter did not know challenged Carter to a game of pool. Carter accepted the challenge and placed $20 on the pool table. A bystander, Ralph Serrano, took the $20 and walked away. When Carter asked for his money back, Serrano pulled a knife on Carter. Carter retreated to the downstairs kitchen to retrieve a larger knife. On returning, Serrano still refused to give up the money. A bartender broke up the dispute, and Carter returned downstairs. A woman with Serrano, LeVonn Baker-Howard, returned the $20 to Carter. Carter then left Kenny's but returned shortly to retrieve keys and cigarettes he had left inside. While there, Carter had another drink. After the drink, Carter again left Kenny's with his brother-in-law, Rodney Temple.

Carter and Temple left in Temple's 1980 two-toned blue Pontiac station wagon. The two headed north on Broadway. Approximately three blocks from Kenny's, Carter told Temple to pull into an alley so Carter could urinate. Temple and Carter pulled into an alley just south of the intersection of Armour and Broadway. By this time, Carter had already taken a .40 caliber handgun from beneath the passenger seat in Temple's car and put it in his waistband. Once he was out of the car, Carter saw that Ralph Serrano and LeVonn Baker-Howard were also in the parking lot. Carter and the two victims argued. Carter then shot one of the victims, paused for four or five seconds, and then shot the other victim. One witness heard Baker-Howard scream out from the parking lot, "You dirty son-of-a-bitch" after the first shots were fired. A witness that lived on the first floor of an apartment building went to the window and saw Serrano and Baker-Howard lying in the parking lot with Carter standing over them. Other witnesses saw the same thing from across the street. From across the street, one of the witnesses saw Carter lean over and fire at one of the bodies on the ground. Carter then walked slowly away and got into the passenger side of Temple's station wagon, which then drove out of the parking lot without its lights on. Carter and Temple then headed east on Armour.

Kansas City police officer Henry Stivers was near the intersection of Armour and Broadway when he heard gunshots. An older model, two-tone blue station wagon passed Officer Stivers' car. Shortly thereafter, Stivers received information that a blue car was involved in the shooting. Officer Stivers immediately tried to find the station wagon that There he found Serrano and Baker-Howard. Serrano had suffered a gunshot wound to his left upper lip. This wound showed evidence of powder burns. The projectile fragmented in Serrano's face, causing extensive soft tissue injury to the face and the bony structures of the face and jaw. Although he was six feet tall, the trajectory of the wound was from the upper front right side of Serrano's face through the lower left back side of Serrano's head. Serrano also suffered a gunshot wound through the upper part of his right arm. The wound to Serrano's face caused extensive bleeding that seeped into his airways, causing him to die of suffocation.

had just passed but was unable to do so. He then returned to the location where he had heard the shots.

Carter shot Baker-Howard three times. One shot entered her right cheek and exited behind her left ear. Another shot grazed the left side of her head. The third shot went through her right shoulder. Baker-Howard died as a result of the wound to the right cheek, which partially transected her brain stem.

In the course of investigating the murders, the police learned of the April 17 altercation at Kenny's Newsroom. On April 18, 1994, the police interviewed Carter at police headquarters. At that time, Carter asserted that he walked home the night of April 17th and did not have anything to do with the murders. He did, however, admit to owning a .40 caliber Ruger handgun. He claimed it had been stolen, although he had never reported the theft.

On April 21, 1994, the police went to Temple's house and found his 1980 two-tone blue Pontiac station wagon. Someone had tried to strip the paint from the vehicle and had removed the luggage rack, wind screen and pinstriping from this car.

Police arrested Carter on April 22, 1994. At that time, Carter gave a videotaped confession to the murders. In his statement, Carter admitted to shooting Serrano and Baker-Howard but asserted that he did so in self-defense. He stated that after the shooting, he threw the .40 caliber handgun he used into the lake in Blue Valley Park.

The state charged Carter with two counts of first degree murder and two counts of armed criminal action. At trial, Carter testified that he did not shoot either victim. He testified that after he left Kenny's Newsroom on the night of the murders, he walked straight home. On September 21, 1995, the jury found Carter guilty of all counts. During the penalty phase, the state presented evidence of two aggravating circumstances as to Serrano's murder and three aggravating circumstances as to Baker-Howard's murder. Carter presented evidence of three mitigating circumstances as to each murder. On September 22, 1995, the jury announced that it was unable to decide upon punishment. On October 16, 1995, Carter filed a motion for new trial, which was overruled. On December 15, 1995, Carter appeared for sentencing. Among other evidence presented at that hearing was a letter from a sister of Serrano indicating the impact of Serrano's death on members of the family and also stating that members of the family desired that Carter be given the death penalty. Carter was sentenced to death for each murder. He thereafter filed a pro se Rule 29.15 motion. After appointment of counsel, an amended motion was filed. In August 1996, the circuit court overruled all of Carter's Rule 29.15 claims and dismissed the motion without granting a hearing on any of the issues raised. These appeals followed.


Carter argues that the circuit court erred in refusing to grant an evidentiary hearing on the numerous claims of ineffective assistance of counsel raised in his Rule 29.15 motion. No evidentiary hearing is required if "the motion and the file and records of the case conclusively show that the movant is entitled to no relief." Rule 29.15(h). Whether or not a hearing was held, the findings and conclusions of the post-conviction court cannot be overturned unless they are "clearly erroneous." Rule 29.15(k).

In order for this Court to order an evidentiary hearing, the motion must meet three requirements: (1) the motion must allege

                facts, not conclusions, warranting relief;  (2) the facts alleged must raise matters not refuted by the files and records in the case;  and (3) the matters complained of must have resulted in prejudice to the movant.  White v. State, 939 S.W.2d 887, 893 (Mo. banc 1997) (quoting State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993)).  Therefore, to obtain an evidentiary hearing on claims of ineffective assistance of counsel, the movant must allege facts, not refuted by the record, showing (1) that counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and (2) that he was thereby prejudiced.  White, 939 S.W.2d at 893.   To show the required prejudice, the facts alleged must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."  Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).  Because none of Carter's allegations satisfy this standard, his motion was properly overruled without an evidentiary hearing


Carter alleges in his brief that one of his two trial counsel was ineffective "because he was drinking and was drunk during trial preparation and the trial itself." However, Carter's Rule 29.15 motion alleges only the "consumption of alcohol" but never claims trial counsel was intoxicated. These allegations fall short of alleging intoxication at any time during or prior to trial. Moreover, Carter makes no specific factual allegations of how counsel's alleged alcohol consumption affected his performance. Carter only makes the sweeping conclusion that counsel's consumption of alcohol caused "every instance of ineffective assistance of counsel assertedd [sic] in this motion." A bare allegation that counsel was less than a teetotaler leading up to or during a trial without asserting specific facts amounting to incompetent representation asserts neither ineffective assistance of counsel nor prejudice.


Carter also alleges that instead of his primary trial counsel adequately preparing for trial, he relied on his...

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