State v. Hamilton, s. 62738

• Decision Date: 14 February 1995
• Docket Number: 65666,Nos. 62738,s. 62738
• Citation: 892 S.W.2d 371
• Parties: STATE of Missouri, Respondent, v. Charles S. HAMILTON, Appellant. Charles S. HAMILTON, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 371

892 S.W.2d 371

STATE of Missouri, Respondent, v. Charles S. HAMILTON, Appellant.

Charles S. HAMILTON, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 62738, 65666.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 14, 1995.

Ellen H. Flottman, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Traci J. Sanders, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

Defendant, Charles Hamilton, appeals convictions of one count of first-degree burglary, one count of kidnapping, one count of rape, four counts of sodomy, and seven counts of armed criminal action. Defendant also appeals the denial of his motion for post-conviction relief pursuant to Rule 29.15. This consolidated appeal follows. We affirm.

Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. On February 27, 1991, A.R. left his home at approximately 7:00 a.m. to go to work. His wife L.R. was awake when he left. Their two-year-old son was asleep in the back of the house. Shortly after A.R. left, defendant drove up to the house and parked in front. Defendant stared at the house for awhile. He finally approached the door and knocked. L.R. knew defendant. She allowed him to come in to use the bathroom.

After defendant came out of the bathroom, he came up behind L.R. and began to stroke her hair, while making suggestive remarks. L.R. ran to the door and opened it, gesturing for defendant to leave. Defendant slammed the door shut, punched L.R., threatened her and her son and forced her to disrobe. After brandishing scissors, he then committed acts that constituted rape and four counts of sodomies. Before he left, he told her about his use of drugs, his theft of some money, and a plan to kill himself.

L.R. reported the crimes to her husband. They reported them to the police. The police arrested defendant at his home less than a week later. Defendant was subsequently indicted for one count of burglary in the first degree, one count of attempted robbery in the first degree, one count of kidnapping, one count of rape, four counts of sodomy, and eight counts of armed criminal action.

At his trial, defendant testified he did not engage in any form of sexual conduct with L.R. on February 27, 1991. Defendant, who was college educated, testified he was stressed by his job responsibilities and problems at home. He discovered on February 26 that his wife was going to file for divorce. He claimed prior experiences with L.R. during which they had comforted each other, both emotionally and physically, over their various problems with their lives and their spouses. Defendant testified that on the morning of February 27, he was preparing to commit suicide. He called L.R. early in the morning and revealed his state of mind. She invited him over to talk about it as they had done in the past. She invited him to go downstairs to talk because the baby was sleeping. When he sat down on the couch, he was stuck by scissors he had put in his pocket earlier that day after cutting off a loose button. He put the scissors on the floor. L.R. wanted to have sex, but he declined, because he had become religious and was tired of fornication and adultery. L.R. was upset he would not have sex with her. When the child woke up, he took advantage of the distraction and left.

According to defendant, he spent the next few days primarily in a barn outside Kansas City plotting various suicide attempts. Finally, he returned to his house and took an overdose of medication. When he awoke, he was in the hospital. He was coming out of the coma when the police officers came and falsely accused him of assaulting L.R. Defendant denied being read his Miranda rights, could not remember any examination at Regional, and "most equivocally" denied having made the statements in the patrol car on the way to jail. Defendant said that day in court was the first time anybody ever asked his side of the story.

The jury convicted defendant of burglary, kidnapping, rape, four counts of sodomy, and the accompanying armed criminal action charges. The jury acquitted defendant of attempted robbery and the related armed criminal action count.

Defendant was sentenced as a prior offender on September 15, 1992, to five concurrent twenty-year terms of imprisonment for the sexual offenses to be served consecutively with nine concurrent five-year terms for the remaining offenses, for a total of twenty-five years. A notice of appeal was filed September 21, 1992.

Defendant filed a pro se motion for post-conviction relief on October 21, 1992. An amended motion was filed May 5, 1993, in which defendant made several claims of ineffective assistance of counsel. Defendant subsequently sought to depose Karen Trail, Custodian of Records of Christian Hospital Northeast, and subpoenaed all of the victim's medical records. Counsel for the hospital filed a motion to quash the subpoena. After a hearing, the court sustained the motion. Defendant's deposition was taken on July 8, 1993. The evidentiary hearing was held on November 12, 1993, and consisted of testimony by defendant's trial counsel and a friend of defendant.

The motion court entered "Findings of Fact and Conclusions of Law" denying relief on January 19, 1994. A notice of appeal from the denial of post-conviction relief was filed February 8, 1994. Defendant presents five points in this consolidated appeal. Points I, IV, and V involve defendant's claim of ineffective assistance of counsel. For clarity, we address them together.

In Point I, defendant argues the motion court clearly erred in denying his motion for post-conviction relief pursuant to Rule 29.15, because trial counsel, Stanford Richardson, had represented state's witness Leroy Bonner, as well as potential defense witness Craig Morton. Defendant argues these representations constituted an actual conflict of interest that adversely affected Richardson's performance. Specifically, defendant claims Richardson failed to investigate and present a defense for defendant that would implicate Bonner or Morton in a crime, and Richardson failed to cross-examine Bonner at all at trial. Defendant states this conflict was neither disclosed to the trial court nor knowingly and intelligently waived by defendant.

Review of the motion court's decision is limited to a determination of whether the judgment of such court is clearly erroneous. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). The judgment is presumed correct and deemed clearly erroneous only if, after a review of the entire record, we are left with a definite and firm impression that a mistake has been made. Antwine v. State, 791 S.W.2d 403, 406 (Mo. banc 1990).

To establish ineffective assistance of counsel, a movant must establish two separate elements: (1) his attorney failed to conform his representation to the degree of skill, care, and diligence of a reasonably competent attorney under similar circumstances, and (2) he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 689-692, 104 S.Ct. 2052, 2065-67, 80 L.Ed.2d 674 (1984). To satisfy the second prong, defendant must establish a reasonable probability that, but for the alleged errors of counsel, the result of his trial would have been different. Id. at 697, 104 S.Ct. at 2069-70.

Defendant states his trial attorney, Stanford Richardson, had represented both state's witness Bonner and potential defense witness Morton, in addition to representing defendant. Richardson, Bonner, Morton, and defendant were all fraternity brothers in college. Defendant claims these varying relationships prevented Richardson from exercising independent judgment in defending him. The motion court found as follows:

While there was evidence that Movant's trial counsel had represented Craig Martin [sic] prior to his representation of Movant and subsequently [sic] to his representation of Movant, there was no evidence that trial counsel had represented Craig Martin [sic] at the time he represented Movant on the charges in cause number 91CR-1506.

* * * * * *

There was no credible evidence that trial counsel represented the State's witness, Leroy Bonner, at the time trial counsel represented Movant nor that there was any conflict of interest.

Until a defendant shows his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). Defendant has failed to meet this burden with respect to both Bonner and Morton, and the motion court so found.

Defendant claimed in his motion the failure to cross-examine Bonner was the result of a conflict of interest based on Richardson's prior representation of Bonner. During his deposition, defendant stated Bonner went to see Richardson about drawing up a will while the case was pending. Defendant said Bonner dropped the matter of the will when Richardson refused to tell him anything about the status of defendant's case. Although defendant stated at his deposition he did not want Richardson to call Bonner as a witness, Bonner was called as a state's witness, and defendant claims he wanted him to be cross-examined about his knowledge of A.R. as a marijuana seller. According to defendant, Richardson did not want to interject the drug issue into the case.

Defendant has failed to meet his burden of proof there was an actual conflict of interest with regard to Bonner. As noted by the motion court, defendant did not present Bonner as a witness at the evidentiary hearing. Likewise, there was no credible evidence Richardson ever represented Bonner. Defendant had an opportunity to question Richardson on his relationship with Bonner, but never asked Richardson any questions regarding Bonner, much less whether he had previously represented him on any matters. The only evidence on these claims...