State v. Leisure

• Court: Missouri Court of Appeals
• Writing for the Court: CARL R. GAERTNER; GRIMM, P.J., and CRANDALL
• Citation: State v. Leisure, 838 S.W.2d 49 (Mo. App. 1992)
• Decision Date: 04 August 1992
• Docket Number: 60476,Nos. 57006,s. 57006
• Parties: STATE of Missouri, Respondent, v. David LEISURE, Appellant. David LEISURE, Appellant, v. STATE of Missouri, Respondent.

Page 49

838 S.W.2d 49

STATE of Missouri, Respondent, v. David LEISURE, Appellant.

David LEISURE, Appellant, v. STATE of Missouri, Respondent.

Nos. 57006, 60476.

Missouri Court of Appeals,

Eastern District,

Division Two.

Aug. 4, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Sept. 14, 1992.

Application to Transfer Denied Oct. 27, 1992.

Richard H. Sindel, Cheryl Rafert, St. Louis, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

CARL R. GAERTNER, Judge.

Defendant appeals from his conviction in the Circuit Court of the City of St. Louis for capital murder. Defendant also appeals from the denial of his Rule 29.15 motion.

Among his many claims, defendant argues that the evidence was insufficient to convict him of capital murder. We view the evidence in the light most favorable to the verdict and disregard all contradictory evidence and inferences. State v. Nelson, 818 S.W.2d 285, 288 (Mo.App.1991).

I. FACTS

Defendant, his cousins Paul and Anthony Leisure, and Fred Prater owned LN & P Towing in St. Louis. The Leisures were involved in crime activities in St. Louis. In the late 1970's, the Leisures and their associates struggled with another organized crime faction, led by James Michaels, Sr., to control management positions in two labor unions in St. Louis. The Leisures bombed the car of James Michaels, Sr., killing Michaels and intimidating the Michaels faction out of the unions. Defendant was convicted and sentenced to death in that bombing in a separate trial. State v. Leisure, 749 S.W.2d 366 (Mo. banc 1988).

On August 11, 1981, Paul Leisure was seriously injured by a bomb that exploded in his automobile. Shortly thereafter, defendant, Anthony Leisure, Ronald "Joe" Broderick, Fred Prater, John Ramo, and Charles "Obie" Loewe met and agreed to avenge the bombing of Paul Leisure. The Leisures eventually determined that members of the Michaels organization, including George Faheen, were responsible for the bombing of Paul Leisure. Members of the Leisure organization started looking for the responsible individuals so as to carry out their plan.

First, members of the Leisure organization drove to a farmhouse owned by the Michaels in Fredericktown, Missouri, where they planned to surprise and kill the inhabitants. However, the farmhouse was unoccupied. The Leisures next stalked Robert Peters at his place of work, but called off their plan to kill him. The Leisures' next plan was to shoot John Michaels at a restaurant Michaels frequented. This plan succeeded when, on September 11, 1981, defendant and Anthony Leisure shot John Michaels and a companion outside a restaurant. Defendant played a role in all of these plans except the Fredericktown incident.

The Leisures' next step in the plan to avenge the bombing of Paul Leisure was to find and kill George "Sonny" Faheen. Faheen was the nephew of James Michaels, Sr. and believed by the Leisures to be personally responsible for bombing Paul Leisure's car. Defendant and other members of the organization began to follow George Faheen. Through their surveillance, they learned Faheen lived at the Mansion House Apartments, worked at the Civil Courts Building, and drove a red Volkswagen. Defendant and Michael Kornhardt experimented with the wiring of a Volkswagen similar to Faheen's at LN & P Towing. Defendant enlisted the assistance of Fred Prater to find a wire in the car's electrical system which could be used to set off a dynamite cap. Defendant asked Prater whether the gas tank had an electrical current which would set off a bomb when he tried to hook it up. Defendant and Kornhardt also looked for ways to unlock the doors on the vehicle.

On October 15, 1981, defendant and John Ramo went to the Mansion House to see if they could get into Faheen's car. Ramo served as a lookout and was told to shoot a guard if one came by. Defendant could not get into the car. Defendant and Ramo then left to meet Anthony Leisure, Broderick, and Raymond Flynn at a local restaurant. Flynn took two bags of dynamite from the trunk of his car and gave it to defendant. Flynn told defendant that it was enough dynamite to do two jobs. Defendant took the dynamite to LN & P Towing where he told Fred Prater to use ten sticks of the dynamite on Faheen and to keep the other ten.

On October 16, 1981, defendant, Ramo and Loewe watched Faheen walk to the Civil Courts Building from his downtown apartment. The three men returned to LN & P, where Ramo left the group. Defendant made a phone call while at LN & P. Then he told Loewe to bring the bomb to him at a south St. Louis parking lot. Defendant left LN & P with Michael Kornhardt. After their departure, Anthony Leisure called Prater and told him to "tell David to hold up." Prater gave the message to defendant, but defendant said, "No. We are going to go ahead and do it," meaning the bombing of Faheen's car.

At 12:20 p.m. on October 16, 1981, a bomb exploded in George Faheen's car. The resulting explosion and fire killed Faheen and damaged nearby cars. Analysis of evidence from the scene indicated that an explosive consistent with dynamite was placed in the front of the Volkswagen. Scratches on the passenger door handle lock were consistent with the use of a pry-bar.

After the bombing, defendant and others took steps to conceal their role in the crime. Soon after placing the bomb on Faheen's car, defendant met with Anthony Leisure and Broderick at a restaurant near downtown. Defendant told them that he took Loewe and Michael Kornhardt with him. Anthony told defendant to get rid of his clothes and rub down with alcohol. Prater saw Kornhardt soon after the bomb exploded. Kornhardt told Prater that Loewe got away from the Mansion House "way early before the bomb went off." Kornhardt also said that he threw an electrical circuit tester and a wig in the river. The police soon issued warrants for Kornhardt's arrest and announced it to the media. Anthony Leisure had Prater ask defendant about Kornhardt, who was a friend of defendant's but otherwise an outsider to the Leisure organization. Defendant told Prater that he, Loewe, and Kornhardt placed the bomb on the car, but he had a wig on and the authorities could not have anything on them.

When Michael Kornhardt was arrested, defendant was concerned that he might also be arrested and briefly went into hiding. Defendant had Innes Anderson retrieve clothes for him. He told Anderson of his role in the Faheen bombing. Defendant explained that while he wired the car, Kornhardt served as a lookout.

Members of the Leisure organization posted bond for Kornhardt's release. Because of their fear that Kornhardt would turn and become a government witness, defendant, Paul and Anthony Leisure, and Fred Prater agreed that Kornhardt should be killed. Kornhardt was killed on July 30, 1982 by two Leisure associates.

Defendant was indicted for the murder of Faheen in a multiple count indictment in 1985. He was tried on the state charges following his trial and conviction on four federal counts. The other state charges and co-defendants were severed for trial. Defendant's trial for the Faheen murder began on April 24, 1989.

Prior to trial, defendant filed a motion in limine covering, among other things, references to other crimes, hearsay statements of co-conspirators, and government wiretaps. The court denied the motion in limine. Defendant was found guilty of capital murder on May 15, 1989. The jury was unable to agree on a punishment for the defendant, and the judge sentenced defendant to life imprisonment without probation and parole. Defendant's motion for new trial was denied. He appeals.

Defendant filed a motion to vacate his sentence or judgment pursuant to Rule 29.15. Defendant testified by deposition, and the court heard testimony from two witnesses and defendant's trial counsel. The motion court issued lengthy and detailed findings of fact and conclusions of law denying all of appellant's points. He appeals from this denial.

II. STANDARDS OF REVIEW ON APPEAL

Defendant raises fourteen points on appeal. These points contain arguments on direct appeal from his trial and his motion for post-conviction relief. Many of the points repeatedly raise issues of ineffective assistance of counsel and plain error. For brevity we will set out the applicable standards which guide our review.

Defendant asks us to review certain issues for plain error. Issues which are not preserved for appellate review may only be reviewed for plain error. State v. Tarkington, 794 S.W.2d 297, 299 (Mo.App.1990). Under the plain error standard, the error complained of must impact so substantially on the rights of defendant that manifest injustice or a miscarriage of justice will result if left uncorrected. Rule 29.12(b); State v. Driscoll, 711 S.W.2d 512, 515 (Mo. banc), cert. denied, 479 U.S. 922, 107 S.Ct. 329, 93 L.Ed.2d 301 (1986).

Defendant also claims that trial counsel was ineffective. A defendant claiming ineffective assistance of counsel has a two-part standard to meet. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). First, defendant must show that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Second, defendant must show that this deficiency prejudiced his defense. Id.

The motion court conducted a full evidentiary hearing on the claims in defendant's motion for post-conviction relief. The court issued its findings of fact and conclusions of law denying defendant's claims on all issues presented. On the appeal of a Rule 29.15 motion we are limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 29.15(j); State v. Vinson, 800 S.W.2d 444, 448 (Mo. banc 1990). They are clearly...