State v. Gilpin
| Decision Date | 30 September 1997 |
| Docket Number | Nos. WD,s. WD |
| Citation | 954 S.W.2d 570 |
| Parties | STATE of Missouri, Respondent, v. Jerry D. GILPIN, Appellant. 50358, WD 53319. |
| Court | Missouri Court of Appeals |
Douglas P. Wilson, Platte City, for Appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for Respondent.
Before EDWIN H. SMITH, P.J., and BERREY and ELLIS, JJ.
Jerry D. Gilpin was convicted on October 6, 1994, by a jury in the Circuit Court of Cooper County of assault in the first degree, § 565.050 1, and armed criminal action, § 571.015. On November 14, 1994, he was sentenced to consecutive terms of seventeen and three years imprisonment, respectively. Appellant appeals the judgment of convictions and sentences and the order denying his Rule 29.15 motion. His appeals have been consolidated pursuant to Rule 29.15(l ).
On appeal, appellant raises eight points. The first six deal with the denial of his Rule 29.15 motion, wherein he claims ineffective assistance of counsel. The remaining two points concern his direct appeal. In his first six points, appellant claims that he received ineffective assistance of counsel in that his trial counsel: (1) failed to properly prepare his case for trial; (2) improvidently stipulated that certain illegal substances found on the victim would not be presented at trial; (3) failed to impeach the victim; (4) failed to call certain witnesses concerning the victim's alleged acts of and reputation for violence; (5) failed to present evidence regarding his medical conditions; (6) failed to properly investigate allegations and information concerning juror misconduct. In his direct appeal, appellant claims in Point VII that there was insufficient evidence to convict him of assault in that the evidence demonstrated he was acting in self-defense. Likewise, in Point VIII, appellant claims that there was insufficient evidence to convict him of armed criminal action in that the evidence demonstrated he was acting in self-defense.
We affirm.
On February 3, 1994, Gary Henke went to appellant's residence in Marshall, Missouri, because Melissa Miller, Henke's fiancee, had been there the prior night and had yet to return home. Henke arrived at the appellant's home around five or six a.m. and stayed approximately three hours while talking and drinking beer. Henke had no problems with the appellant and went home for awhile. Henke later returned to appellant's house in the middle of the afternoon to speak to Miller. Again, Henke had no problems with the appellant.
Henke continued to drink throughout the afternoon. Early in the evening, he and two friends, Vickie Agapeau and Ed Garner, drove to the appellant's residence. Henke went inside and asked Miller whether she was going to come with them. They argued and she refused to accompany him.
About one hour later, Henke returned to appellant's house to see whether Miller was ready to leave with him. Appellant told Henke that Miller was no longer there, but had left with her sister. After appellant informed him that Miller was no longer at the house, he started to leave. Henke testified that at this time appellant began slashing him with a carpet or utility knife. Henke testified that he turned to get away, but that appellant kept grabbing him.
The knife cut Henke's throat from ear to ear, transecting his voice box so completely that one could see his vocal cords and the lower portion of his voice box. It also caused a partial transection of his external jugular vein. Henke also received a deep laceration to his ear, which was partly transected, narrowly missing the carotid artery; a vertical laceration to his face, which just missed his left eye; and several other slash wounds to his left arm, back, and hip. When he finally broke free of appellant's grasp, Henke returned to Garner's truck. Garner and Agapeau drove Henke to the hospital, where he was hospitalized for seven days, five of which were in intensive care.
At trial, appellant testified that he was acting in self-defense when he cut Henke. He also testified that he was fearful of being struck because he was disabled in a car accident as a result of a spinal fusion in his neck and damaged nerves in his arms and hands. Appellant testified that when Henke returned to his house in the early evening of February 3rd, Henke argued with Miller, knocked her off a bench, and dragged her across the floor. According to appellant, Henke threatened to kill him. Appellant testified that when he went to pick up his telephone, Miller told Henke that appellant was calling the police. Henke then grabbed the telephone, threw it on the floor and pushed appellant into a wall. Once Henke left, Miller called her sister to come and get her. Appellant testified that he telephoned Henke's father and informed him that Henke had damaged his home and had threatened to kill him. He also testified that he told Henke's father that if Henke returned, he would have to "take care of it [him]self." Appellant further testified that he was frightened because he had heard that Henke was a troublemaker and had been involved in several fights with Miller.
Appellant testified that he was on the telephone with his mother around 7 p.m. when Garner's truck pulled up outside. Appellant told his mother that Henke had returned and to call 911. He said he went to his front door in an effort to keep Henke from entering his home. Appellant told Henke that Miller was no longer at the house. According to the appellant, Henke did not believe appellant and appellant stated that Henke pulled open the door, forced his way into the house, swinging his fists. Appellant said that Henke then struck him in the jaw.
Appellant also testified that as Henke continued to swing at him, appellant saw a carpet knife lying on top of a room divider, which he used to cut carpet. He testified he opened the knife and began slashing Henke on his back to get him off of him. Appellant stated he feared that someone would easily paralyze him, because of his pre-existing spinal injury. Henke continued punching appellant. Appellant started slashing at the front of Henke. Appellant stated he finally escaped Henke's grasp and Henke left his home. Appellant testified he then called the police and told them that he had been assaulted and needed help.
On March 24, 1994, the State charged appellant by indictment in the Circuit Court of Saline County with one count of assault in the first degree and one count of armed criminal action. The jury returned verdicts of guilty on both counts on October 6, 1994. On November 14, 1994, he was sentenced to consecutive terms of seventeen and three years imprisonment, respectively.
On August 23, 1995, appellant filed a Rule 29.15 motion for postconviction relief alleging three grounds of ineffective assistance of counsel: (1) movant's attorney failed to adequately prepare his case for trial; (2) movant's attorney failed to call requested defense witnesses that would have testified to the victim's prior acts of and reputation for violence; and, (3) movant's counsel failed to cross examine the victim as to his prior acts of violence, inconsistent statements, and motive to lie. On June 27, 1996, appellant filed a motion for leave to file an amended Rule 29.15 motion. The amended motion, which included ten additional grounds of ineffective assistance of counsel not raised in appellant's original motion, was filed on the following day.
On June 28, 1996, an evidentiary hearing was held on appellant's Rule 29.15 motion. On August 5, 1996, the motion court entered its findings of fact and conclusions of law denying appellant's motion. This consolidated appeal follows.
Appellate review of the motion court's denial of postconviction relief motion is not a de novo review; rather, the findings of fact and conclusions of law of the motion court are presumptively correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). Appellate review of a motion court's actions is limited to a determination of whether its findings and conclusions are clearly erroneous. Rule 29.15; State v. Driver, 912 S.W.2d 52, 54 (Mo. banc 1995). Findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Wilson, 813 S.W.2d at 835.
In his first point, appellant claims that he received ineffective assistance of counsel in that his trial counsel failed to properly prepare his case for trial by: (A) not obtaining and serving subpoenas of necessary witnesses concerning the victim's alleged prior acts of and reputation for violence; (B) not investigating and ascertaining the victim's alleged prior acts of and reputation for violence; and, (C) not investigating a certain fact witness. In Point IV, appellant claims his trial counsel was ineffective for failing to call certain witnesses to testify concerning the victim's alleged prior acts of and reputation for violence. Since appellant's claim in Point IV is essentially the same as that raised in his Point I(B), we will discuss them together.
To prove ineffective assistance of counsel, the movant must show that: (1) trial counsel did not demonstrate the customary skill and diligence that a reasonably competent attorney would display rendering similar services under the existing circumstances; and that (2) he or she was prejudiced by such conduct or lack thereof. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To demonstrate prejudice, the movant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994), cert. denied, 513 U.S. 953, 115...
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