State v. Samuels

• Decision Date: 31 March 1998
• Docket Number: Nos. WD,s. WD
• Citation: 965 S.W.2d 913
• Parties: STATE of Missouri, Respondent, v. Jeffrey SAMUELS, Appellant. 52080, WD 54001.
• Court: Missouri Court of Appeals

Page 913

965 S.W.2d 913

STATE of Missouri, Respondent, v. Jeffrey SAMUELS, Appellant.

Nos. WD 52080, WD 54001.

Missouri Court of Appeals Western District.

March 31, 1998.

Ellen H. Flottman, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Christine M. Blegen, Asst. Atty. Gen., Jefferson City, for respondent.

Before ELLIS, P.J., and HOWARD and RIEDERER, JJ.

RIEDERER, Judge.

At a hearing on a motion under Supreme Court Rule 29.15, Jeffrey Samuels, the Appellant, while testifying in support of his allegation of ineffective assistance of counsel, admitted incriminating details of the underlying charged offense. In a subsequent retrial, the trial court admitted the incriminating testimony on the ultimate issue of the defendant's guilt. Appellant was convicted at the second trial. On appeal, he alleges 1) that by admitting this testimony, the trial court improperly placed the defendant's Sixth Amendment right to effective assistance of counsel in direct conflict with his Fifth Amendment privilege against self-incrimination; 2) that the reading of a witness' testimony from the first trial at the second trial violated his rights to cross examine and confront witnesses; 3) that the prejudicial impact

of Appellant's cocaine use outweighed any probative value, was irrelevant and violated Appellant's constitutional rights to due process and a fair trial; 4) that the prosecutor's closing argument shifted the burden of proof to Appellant and violated his constitutional rights to due process and a fair trial; 5) that the motion court should have granted an evidentiary hearing before denying Rule 29.15 motion regarding two claims of ineffective assistance of counsel; 6) that the trial court should not have accepted the jury verdict because guilt was not established beyond a reasonable doubt; 7) that the trial judge was biased, prejudiced and should have disqualified himself; 8) that the trial court should have submitted "not in MAI-CR" instruction on self-defense to the jury; 9) that trial court should not have submitted instruction on voluntary intoxication to the jury; 10) that the prosecution made impermissible comments on Appellant's failure to testify during closing argument; 11) that Appellant should have been allowed to mention in closing argument that police officers use force in self-defense; 12) that the trial court should have instructed jury on voluntary manslaughter; and 13) that the motion court was biased and prejudiced in presiding over and denying one of Appellant's Rule 29.15 motions regarding ineffective assistance of counsel. Because the first issue is dispositive of the appeal, we do not address the remaining allegations.

FACTS

At approximately 11:30 a.m. on August 19,1991, the residence manager at the Park Central Apartments in Kansas City, Missouri, heard a number of gunshots in the building. She instructed an employee to call 911. At that same time, Teresa Gilyard, the sister of Appellant Jeffrey Samuels, was speaking with Samuels on the phone. When she heard a commotion, she gave the phone to her husband, Fred Gilyard. He heard the gunshots over the phone and also called 911. Police officers responded to the calls and were directed to Apartment 119, rented by Samuels. The officers entered and found Deanna Lee lying on her back blocking the door. She was dead of multiple gunshot wounds and cocaine was later found in her bloodstream. The officers found a .25 caliber semi-automatic Beretta pistol on a chair in the apartment. This pistol fires the bullets in its magazine in rapid succession without doing anything but pressing the trigger. The officers recovered two spent bullets and seven shell casings at the scene, and five more bullets were removed from Lee's body in the autopsy. All the bullets and casings matched the Beretta pistol.

A tenant informed the police that Samuels had been seen leaving the building with blood on his clothing. Samuels was arrested on September 25, 1991, in Minneapolis, Minnesota.

Jeffrey Samuels was convicted of first degree murder and armed criminal action in 1992. Samuels did not take the stand in that first trial. Following the conviction, Samuels filed a motion under Rule 29.15, raising a number of postconviction claims, including ineffective assistance of counsel. He alleged that his trial counsel failed to present a self-defense theory of defense. In support of this motion, Samuels personally gave detailed testimony about what he claimed to have told his lawyer of his involvement in the homicide. Before the State had an opportunity to cross-examine the Appellant and before the Appellant's trial counsel (whose competence was challenged) testified, the motion court recessed and subsequently granted the 29.15 motion on the grounds of a tainted juror claim. Thus, there is no record of trial counsel's response to the claims of his ineffectiveness. The motion court never ruled on the ineffective assistance of counsel allegation.

At the second trial, the state introduced, over Appellant's objection, the statements from Samuels' testimony at the 29.15 hearing. The trial court held that those statements were admissions against interest. Samuels was again convicted of first degree murder and armed criminal action.

Appellant claims on appeal that admission at his second trial of his statement made at

the postconviction hearing in support of his Sixth Amendment right to counsel is a violation of his Fifth Amendment privilege against self-incrimination. We agree.

INEFFECTIVE ASSISTANCE OF COUNSEL

In order to properly assess the statements made by Appellant at the 29.15 hearing following his first trial, we must first analyze what Appellant was required to prove at this hearing.

In order to establish ineffective assistance of counsel, the movant must (1) demonstrate that his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances and (2) show that his defense was prejudiced as a result of that deficiency. Strickland v. Washington, 466 U.S. 668, 687, 690, 104 S.Ct. 2052, 2064, 2065-66, 80 L.Ed.2d 674 (1984); State v. Storey, 901 S.W.2d 886, 893 (Mo. banc 1995). Defense counsel is presumed to be competent. State v. Booker, 945 S.W.2d 457, 459 (Mo.App.1997). A petitioner alleging ineffective assistance of counsel bears a "heavy burden" to overcome that presumption. State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996). Because the burden is so heavy, general or "naked" allegations of ineffectiveness are not sufficient. Phillips v. U.S., 401 F.Supp. 594, 596 (1975) affirmed 533 F.2d 369 (1976), certiorari denied 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292 (1976).

An appellant can make a claim of ineffective assistance of counsel only by specifying particular errors of trial counsel, not founded on mere inexperience, lack of time to prepare, gravity of the charges, complexity of defenses, or accessibility of witnesses to counsel. United States v. Cronic, 466 U.S. 648, 665-66, 104 S.Ct. 2039, 2050-51, 80 L.Ed.2d 657 (1984). The error of trial counsel would have to be particularly egregious, as courts will normally not grant relief for acts or omissions by counsel viewed as trial tactics. Booker, 945 S.W.2d at 458.

To prove his claim that his trial counsel was ineffective, therefore, Samuels did not make general or naked allegations. Rather, he gave personal testimony detailing private conversations he purportedly had with James McMullin, his lawyer at the first trial. At the 29.15 hearing, Samuels' attorney asked "what it was that you told Mr. McMullin happened while you were talking on the telephone?" In a rambling and lengthy narrative, Samuels revealed the details of what he purportedly told his lawyer. In summary, he stated that in the four days prior to the killing, he had been using drugs and alcohol and had not slept. At least part of that time he had spent with Deanna Lee, the decedent, who was angry with him because he would not buy her more drugs. At the time of the killing, he was on the phone with his sister, Teresia Gilyard. While Appellant was speaking to his sister, Lee began shouting. Samuels continued: "I looked up while I was talking on the phone, and I saw that she had a gun pointed to my head demanding that I give her all of my money, all the money or whatever else like that, everything, rather, so I was shocked. I was shocked at that point in time or whatever else like that, and like I said, things aren't really that clear to me as to exactly what transpired after that because I contacted, because I kind of lost--because things were so magnified that--but I remembered her making a motion as if to pull the trigger or whatever, and going through a struggle or whatever else like that. During the struggle, shots were fired or whatever. We was kind of like in a spinning type motion, and the way the shells were lying inside the apartment, clearly shows that it was a struggle, and it pretty much suffices for what I'm telling you." Samuels said he then thought about calling 911, but "panicked" and fled.

In an effort to overcome the heavy presumption in favor of competent counsel, Samuels was required to reveal to the court the incriminating details he told his attorney before the first trial. He made this revelation of the details of the killing in an effort to substantiate his claim that his counsel breached a duty in not utilizing the affirmative defense of self-defense and that his defense

was prejudiced because of the counsel's ignorance of the self-defense claim.

THE PRIVILEGE AGAINST SELF-INCRIMINATION

The issue before this court is whether the admission of incriminating testimony given at a postconviction hearing to secure the appellant's Sixth Amendment rights is a violation of Appellant's Fifth Amendment right not to incriminate himself where the appellant has properly objected to the admission of the testimony.

Generally,...