State v. Owsley

• Decision Date: 23 December 1997
• Docket Number: No. 77688,77688
• Citation: 959 S.W.2d 789
• Parties: STATE of Missouri, Respondent, v. Michael I. OWSLEY, Appellant.
• Court: Missouri Supreme Court

Page 789

959 S.W.2d 789

STATE of Missouri, Respondent, v. Michael I. OWSLEY, Appellant.

No. 77688.

Supreme Court of Missouri,

En Banc.

Dec. 23, 1997.

Rehearing Denied Jan. 27, 1998.

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

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

LIMBAUGH, Judge.

A Jackson County jury convicted Michael Owsley of first degree murder, kidnapping, and two counts of armed criminal action for which he was sentenced to death and consecutive terms of life, fifteen years, and fifteen years, respectively. Owsley's motion for post-conviction relief was dismissed for noncompliance with Criminal Procedure Form No. 40 as required in Rule 29.15. Because the death sentence was imposed, this Court has jurisdiction of the appeal. Mo. Const. art. V, sec. 3. We affirm the conviction and sentence on all counts as well as the dismissal of the post-conviction relief motion.

I. FACTS

The evidence at trial, which we review in the light most favorable to the verdict, State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995), reveals the following:

On April 18, 1993, Elvin Iverson, the murder victim in this case, drove from Kansas City, Missouri, to Junction City, Kansas, to sell drugs. Iverson was accompanied by Ellen Cole. When the two returned to the house in Kansas City where Iverson was staying, defendant Owsley and a codefendant named Hamilton confronted them and ordered them to lie on the ground. Both Iverson and Cole complied on observing that Hamilton carried a Tech-9 semi-automatic weapon with a silencer and Owsley carried a 12-gauge sawed-off shotgun.

Hamilton then demanded to be told "where the [drug] money was." Iverson pleaded that he did not have the money and that he had given it to another person who had accompanied him to Junction City. After Hamilton pressed unsuccessfully for more information, Owsley spoke directly to Iverson, calling him "a thorough nigger" and saying that "you're [Iverson] begging for your life now, nigger." Owsley backed up his malicious comments by punching and kicking Iverson and, at times, beating his face with the sawed-off shotgun. When Iverson continued to deny that he had any money, Owsley then took a bag from Hamilton and began smothering Iverson. At that point, Hamilton asked Cole about the money, and in response, she lied by offering to take them to a key. Hamilton then tied Cole and Iverson together by their feet with an electrical extension cord, and either he or Owsley covered them with a blanket. Owsley stood over them, hitting them with the barrel of the shotgun and said, "One of you live; one of you die." He put the gun to Iverson's head, but before he could fire, Hamilton instructed him to place a pillow over Iverson's head. After putting the pillow in place, Owsley pulled the trigger, killing him instantly.

In making their getaway, the two gunmen untied Cole and took her along. Owsley forced her into Hamilton's car, and as Hamilton drove away, Owsley followed in another car. A short time later, Cole managed to escape from Hamilton's car and notify the police.

II. ALLEGATIONS OF PRETRIAL ERROR

A. Irreconcilable Conflict with Counsel

Owsley first claims that the trial court erred in denying his several motions to dismiss counsel and substitute new counsel. The motions were based on alleged irreconcilable conflict between Owsley and his lawyer. Denial of the motions, Owsley explains, deprived him of his constitutional right to effective assistance of counsel. Alternatively, Owsley claims that at minimum, substitute counsel should have been appointed for the October 17, 1994, hearing on the motion to dismiss counsel because Owsley's counsel actively opposed some of the factual allegations in the motion.

A trial court's ruling on a motion to dismiss counsel is a legitimate exercise of its discretion and will not be disturbed on appeal unless there is clear abuse of discretion, State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989), and "the appellate court will indulge every intendment in favor of the trial court." Id. To "prevail on a claim of irreconcilable differences with counsel, the defendant must produce objective evidence of a 'total breakdown in communication.' " State v. Parker, 886 S.W.2d 908, 929 (Mo. banc 1994), citing Hornbuckle, 769 S.W.2d at 96. Proof of a total breakdown in communication is established, according to Owsley, not only by the interaction between the two, but also by counsel's statements to others and counsel's ineffective assistance throughout the proceedings. The colorable claims within the wide array of counsel's alleged misconduct includes: failing to furnish Owsley with copies of the police reports, to meet and consult with him, and to discuss his defense; failing to pursue all of the investigation that Owsley requested; speaking condescendingly to Owsley; breaching the attorney-client privilege by telling another client about Owsley's case and characterizing Mr. Owsley as a liar; calling Owsley a "pain in the ass;" commenting to a newspaper and on radio that death penalty cases are not processed as expeditiously as they should be; commenting in an objection to the prosecution's voir dire questions about prior criminal experiences that if he did the same, "we will be here for two weeks;" telling the venire panel that "[w]e're not drinking, playing cards and drinking rum, which we would rather being [sic] doing;" asking a venire panel member whether he could consider both life imprisonment and death if Owsley were found guilty; stating to the venire panel that "I don't like [experts] personally," even though he intended to rely on one.

None of Owsley's claims are well taken. To the extent that the "irreconcilable differences" were born of counsel's alleged misconduct at trial, Owsley's remedy was to present the claims in a properly filed Rule 29.15 motion. Obviously, the trial court should not be expected to discharge and replace counsel during the course of the trial itself. The one other claim cognizable in a post-conviction relief action is counsel's alleged failure to fully investigate the case. This matter was fully addressed by the trial court during one of the pretrial hearings on Owsley's motion to discharge counsel. After considering Owsley's position, the court concluded that the information Owsley sought to investigate was irrelevant to the issues in the case and then warned Owsley that he would waste his counsel's time for legitimate trial preparation if he continued to send him on "wild goose chases." From our review of the record, the court was correct in this determination.

The claims that relate more directly to a "breakdown in communication" are also insufficient to establish irreconcilable conflict. From the motion hearings before the court and on the face of the motions themselves, Owsley made it clear that he was in fact still communicating with his lawyer. The essence of his complaints, instead, was that he simply was not pleased with the tone and content of his lawyer's comments and criticism. As the court found after allowing Owsley to fully air his concerns, the comments and criticisms to which Owsley objected, and his resulting displeasure, was the product of Owsley's own uncooperativeness with his lawyer. Owsley is not permitted to generate an "irreconcilable conflict" through his own misconduct. See Hornbuckle, 769 S.W.2d at 97.

Even though Owsley himself was the cause of the problem, the court nonetheless took the exemplary step to alleviate the stress of the situation by appointing co-counsel to assist in Owsley's defense. Having provided Owsley co-counsel with whom Owsley could presumably communicate, the court did all and more than was required. The point is denied.

Owsley's alternative claim that he was effectively unrepresented at the October 17, 1994, hearing on his motion to discharge his lawyer, fares no better. During the hearing, Owsley presented his lengthy handwritten motion to his lawyer who read it to the court, after which Owsley himself addressed the court at length. When Owsley had finished, his lawyer contested some of the allegations Owsley had made about him and their interaction in preparing for trial. When a dispute of this sort arises, it is the court's responsibility to inquire into the matter, and the defendant's lack of legal training is immaterial. United States v. Blum, 65 F.3d 1436, 1441 (8th Cir.1995). Moreover, the defendant Owsley in this case has not shown how he was prejudiced. From our review of the record, it is clear that Owsley made all the points he sought to make on the question of irreconcilable conflict, and he does not claim otherwise. By conducting a full hearing on the matter to inquire about the allegations, Owsley's interests were sufficiently protected.

B. Speedy Trial Rights Violated

Owsley also claims that the trial court erred in denying his numerous motions to dismiss for lack of a speedy trial. Owsley was arrested and placed in jail on April 22, 1993, but was not brought to trial until October 18, 1994, roughly eighteen months later. This delay, he contends, violates speedy trial guarantees under the United States and Missouri Constitutions as well as sections 545.780, 545.890, and 217.460, RSMo 1994.

The United States Supreme Court mandates a balancing of four factors when determining whether a defendant's constitutional right to a speedy trial was violated. Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 2193-94, 33 L.Ed.2d 101 (1972). The factors include the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker, 407 U.S. at 530, 92 S.Ct. at 2191-92. In this case, the dispositive factors are those pertaining to the reason for the delay and the prejudice to the defendant. The eighteen month delay was mostly attributable to the various actions taken by defendant or on...