State v. Roll

• Decision Date: 25 March 1997
• Docket Number: No. 76570,76570
• Citation: State v. Roll, 942 S.W.2d 370 (Mo. 1997)
• Parties: STATE of Missouri, Respondent, v. Gary Lee ROLL, Appellant.
• Court: Missouri Supreme Court

Page 370

942 S.W.2d 370

STATE of Missouri, Respondent, v. Gary Lee ROLL, Appellant.

No. 76570.

Supreme Court of Missouri En Banc.

March 25, 1997.

Rehearing Denied April 29, 1997.

Martin D. Warhurst, Kansas City, Loyce Hamilton, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Stacy L. Anderson, Assistant Attorney General, Jefferson City, for respondent.

BENTON, Judge.

Gary Lee Roll pled guilty to three counts of murder in the first degree, in addition to three counts of armed criminal action and one count of robbery. The circuit court sentenced him to death for each murder, and to terms of imprisonment for the other crimes. After an evidentiary hearing, the post-conviction court overruled his Rule 24.035 motion. This Court has exclusive appellate jurisdiction. Mo. Const. art. V, § 3. Affirmed.

I.

After ingesting alcohol, marijuana, and four to six hits of LSD, Gary Lee Roll, David Rhodes, and John Browne decided to rob a drug dealer. Roll supplied each of them with a gun and a knife and drove the three to the home of an alleged drug dealer. When Roll attempted to force open the front door, a child inside cried out. Rhodes and Browne refused to go inside, so they all returned to Roll's residence.

Later that night, they decided to rob a different drug dealer, Randy Scheper. At about 4:00 a.m., Roll drove to Scheper's house, with Rhodes and Browne. Roll knocked on the door and Scheper's mother, Sherry, answered. Displaying a badge, Roll identified himself as a police officer and ordered her to open the door. When she did, Roll and Rhodes entered. Browne, who knew the family, remained outside, fearing he would be recognized. Inside the house, Roll fatally shot Randy in the head and beat Sherry to death with his gun. Roll (either alone or in concert with Rhodes) fatally stabbed Randy's brother, Curtis. Roll, Rhodes, and Browne then left with some marijuana and $215 in cash.

Returning home, Roll cleaned blood and hair from his gun and blood off his knife and clothing. He wrapped the murder weapons and a box of ammunition in a package, which his son buried in the woods behind Roll's house.

In the weeks after the murders, Browne began to fear for his safety. To protect himself, Browne wore a tape recorder during a conversation with Roll about the murders. On the tape, Roll admitted committing the murders and getting rid of the murder weapons. Roll also said that he killed the Schepers because "they knew everybody.... And I figured then they even knew me, because of something that was said in there...." Browne gave the tape to a friend for safekeeping, who in turn gave it to the police.

II. Penalty Phase

A. Aggravating and Mitigating Circumstances

Roll contends that the trial court either refused to consider his intoxication on the night of the murders, or considered it as an aggravating factor instead of a mitigating factor. Since there was no objection, review is discretionary for plain error. Rule 30.20. To merit relief, Roll "bears the burden of demonstrating that the action of the trial court was not only erroneous, but that the error so substantially impacted upon his rights that manifest injustice or a miscarriage of justice will result if the error is left uncorrected." State v. Wise, 879 S.W.2d 494, 520 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995).

Roll argues that the judge did not properly consider Roll's drug use:

THE COURT: .... I have considered the aggravating circumstances, I've considered the mitigating circumstances, I've considered all of the evidence which was presented at the hearing on Friday a week ago. I think in part there is an attempt to excuse whatever occurred as a result of the use of drugs, the use of lysergic acid, but on the other hand the Court and the law cannot countenance the commission of one offense as an excuse for the commission of another offense. And I cannot myself in this case do that....

Drug abuse may or may not be considered a mitigating circumstance, depending on the facts of the case. State v. Hunter, 840 S.W.2d 850, 868 (Mo. banc 1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 732 (1993). Here, the trial judge's comments were "merely reflections on how he weighed the evidence of defendant's drug abuse in determining mitigating circumstances." See id.

Substantial evidence existed that Roll's drug use was not a mitigating factor. When first attempting to plead guilty, Roll did allude to drug use at the time of the crimes and "the condition I was in." However, at the second (successful) guilty plea hearing, and in his penalty phase testimony, Roll recounted his actions on the night of the murders, with almost no mention of drug use. All of the penalty phase evidence was considered by the judge, but the evidence of drug use was assigned little, if any, weight. The trial court committed no plain error.

B. Failure to Follow § 565.030.4 ¹

Roll asserts that the trial court failed to follow the governing statute and thus violated his rights under the Eighth and Fourteenth Amendments (and the parallel provisions of the Missouri constitution). Specifically, Roll argues that the judge omitted the statutory words "beyond a reasonable doubt" in his oral finding of aggravating circumstances under § 565.030.4. Because Roll raises this for the first time on appeal, this Court reviews for plain error. Rule 30.20.

Section 565.030.4 does not require specific oral or written findings by a judge sitting alone. Hunter, 840 S.W.2d at 868. This Court presumes that the trial judge knew and followed the law in sentencing Roll. See State v. Feltrop, 803 S.W.2d 1, 16 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). Roll presents no facts to rebut this presumption. The judge expressly recited the three aggravating circumstances. Sufficient evidence existed to prove all three statutory aggravating factors beyond a reasonable doubt. Roll pled guilty to multiple homicides. § 565.032.2(2). He pled guilty to robbery in connection with the murders. § 565.032.2(11). He admitted on the tape recording that he murdered to conceal his crimes. § 565.032.2(15). The trial court did not commit plain error.

III. Post-Conviction Relief

A. Rule 24.035

Time Limits

Roll asserts that the time limits in Rule 24.035 deprived him of due process, reasonable access to the courts, equal protection and effective assistance of counsel, and created the risk of arbitrary and capricious imposition of the death penalty. This Court has repeatedly rejected these attacks on the time limits in Rule 24.035 (conviction after guilty plea) and Rule 29.15 (conviction after trial). See State v. Parker, 886 S.W.2d 908, 929 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995); Day v. State, 770 S.W.2d 692, 695 (Mo. banc), cert. denied, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989).

B. Assistance of Counsel--Guilty Pleas

Roll claims that the motion court erred in denying post-conviction relief for ineffective assistance of counsel. To prevail, the defendant must show that counsel's performance was not that of a reasonably competent attorney, and that the defendant was thereby prejudiced. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). In order to show prejudice in a guilty plea case, a defendant must prove that, but for the errors of counsel, he would not have pled guilty and would have demanded trial. Id. If conviction results from a guilty plea, any claim of ineffective assistance of counsel is immaterial except to the extent that it impinges the voluntariness and knowledge with which the plea was made. Hagan v. State, 836 S.W.2d 459, 463 (Mo. banc 1992).

The motion court found that counsel was not ineffective, so review is limited to whether that court clearly erred. Rule 24.035(k); State v. Nunley, 923 S.W.2d 911, 922 (Mo. banc 1996), cert. denied, --- U.S. ----, 117 S.Ct. 772, 136 L.Ed.2d 717 (1997). Findings and conclusions are clearly erroneous if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Id.

1.

Roll contends that his guilty plea was involuntary due to pressure and promises of his counsel, which deprived him of due process and effective assistance of counsel, and constituted cruel and unusual punishment.

A guilty plea not only admits guilt but also consents to judgment of conviction without a jury trial. Hunter, 840 S.W.2d at 861. Accordingly, a guilty plea must be a voluntary expression of the defendant's choice, and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. Id., citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).

On the morning of the first day of trial, Roll attempted to plead guilty. Because he could not recall many aspects of the crimes, the judge refused to accept the pleas. Later that evening after trial had adjourned for the day, Roll again requested to plead guilty. After further inquiry, the court accepted the pleas.

Roll contends that his counsel pressured him by promising him that if he pled guilty, he would not get the death penalty. Moreover, Roll asserts that before his second attempt to plead guilty, counsel "coached" him on acceptable answers to the judge's questions.

The record at the second guilty plea hearing indicates otherwise:

THE COURT: And finally in connection with this matter, do you understand that the ranges of punishment of the three offenses of murder in the first degree are that punishment is either life without probation or parole or the death penalty on each one of those three charges ...?

ROLL: Yes, your honor.

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THE COURT: Now I need to be absolutely sure of this fact. Have you in any way been led to believe that this Court would be more lenient on you if you entered a plea of...