State v. Vivone, s. 17355

• Decision Date: 17 June 1993
• Docket Number: 17945,Nos. 17355,s. 17355
• Citation: 857 S.W.2d 489
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Thomas Andrew VIVONE, Defendant-Appellant. Thomas Andrew VIVONE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 489

857 S.W.2d 489

STATE of Missouri, Plaintiff-Respondent, v. Thomas Andrew VIVONE, Defendant-Appellant.

Thomas Andrew VIVONE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 17355, 17945.

Missouri Court of Appeals,

Southern District,

En Banc.

June 17, 1993.

Motion for Rehearing or Transfer to

Supreme Court Denied July 8, 1993.

Application to Transfer Denied Aug. 17, 1993.

Thomas D. Carver, Springfield, for appellant.

William L. Webster, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for respondent.

GARRISON, Judge.

Defendant Thomas Vivone pleaded not guilty by reason of mental disease or defect to the charge of murder in the first degree under § 565.020.1. ¹ A jury found him guilty and he was sentenced to imprisonment Defendant's points relied on all concern his postconviction motion and do not reference issues concerning a direct appeal from the conviction. ³ The direct appeal is therefore considered waived or abandoned. State v. Sykes, 436 S.W.2d 32, 33 (Mo.1969); State v. Hudson, 815 S.W.2d 430, 431 (Mo.App.1991); State v. Berry, 798 S.W.2d 491, 497 (Mo.App.1990).

                for life without eligibility for probation or parole.  Defendant's trial counsel filed a motion for new trial which was overruled.  Defendant also filed a Rule 29.15 motion seeking relief from the conviction by reason of alleged ineffective assistance of counsel. 2  Appointed counsel thereafter filed an amended 29.15 motion which was overruled after an evidentiary hearing.  Defendant filed notices of appeal from the conviction as well as denial of the Rule 29.15 motion
                

In this appeal, the contentions raised by defendant can be summarized as follows: Trial counsel was ineffective in (1) not objecting to testimony by the State's psychiatrist; (2) not filing a motion to suppress defendant's confession; (3) failing to either challenge for cause or strike a venireperson; (4) not seeking a new trial based on the trial court's refusal to tender a voluntary manslaughter instruction; and (5) thirty-three separate other ways listed in the brief which generally cover most of counsel's conduct in the representation of defendant. In addition, defendant alleges in Point VI that the prosecutor and trial court engaged in conduct which created a fundamental unfairness and resulted in his unlawful conviction.

FACTS

In the early morning hours of February 11, 1989, defendant was drinking with the deceased, Robert Demster, and Breck Lingbeck at Demster's apartment. Deceased eventually went to bed in a separate room of the apartment. According to defendant, he and Lingbeck helped Demster to the bedroom because he was intoxicated. A later blood analysis showed that his blood alcohol content was in excess of .36. The testimony of Lingbeck and defendant differs significantly about the events which occurred after Demster went to bed.

According to Lingbeck's testimony, he and defendant continued to drink and talk until Lingbeck said he was going to bed on the living room sofa and indicated defendant should leave. Defendant began beating Lingbeck, first with his fists and later with a frying pan. Lingbeck testified that he got a pocket knife out in an effort to defend himself but lost it in the struggle. Defendant picked up the pocket knife and began stabbing Lingbeck, who sustained six stab wounds to the front of his body and five in his back, a broken ankle and a punctured lung.

According to defendant's testimony, after Demster went to bed defendant went to his apartment, which was next door to Demster's, to retrieve some musical tapes. When he returned, he heard a noise in the bedroom and discovered Demster and Lingbeck preparing to engage in a homosexual act. Defendant testified he was repulsed by this and attempted to leave, but Lingbeck prevented defendant's exit by putting his foot in front of the door and then pulled a pocket knife, threatening to kill defendant. Defendant, who had boxing experience, began striking Lingbeck with his fists and then with a frying pan.

The evidence was undisputed that, after the altercation with Lingbeck, defendant left Lingbeck on the floor of the living room, went to his apartment next door for the purpose of getting a large kitchen knife, and returned to the Demster apartment. He then stabbed Demster in the chest with the kitchen knife. Defendant Sometime later, after apparent attempts to clean up some of the blood, defendant returned to his apartment and informed his mother that he had killed two people next door. She called the police, who arrived in a matter of minutes. The first two officers on the scene were Doug Leeper and Scott Penner. Defendant knew Officer Penner and immediately said, "I just killed two people next door." Shortly after that, defendant again said, "Scotty, I ... up; I killed them." Officer Leeper looked in the window of Demster's apartment, saw Lingbeck's body on the floor, and motioned to Officer Penner that he could see a body. Officer Penner then handcuffed defendant, gave him a Miranda warning, and took him to the patrol car where he began to bandage defendant's finger which was lacerated. Defendant continued to make statements, saying that an argument had started between him and Lingbeck; that he began hitting Lingbeck in the head and face with his fists; and eventually said, "Scotty, I'm going to get life for this, aren't I?"

testified that Demster, who was sitting on the edge of the bed, made homosexual advances to him and that defendant then stabbed him after a scuffle. A pathologist testified that Demster had two stab wounds to the back caused by a smaller knife than the kitchen knife found in his chest; the fatal stab wound to Demster was almost exactly perpendicular to the body; there was no evidence of any defensive measures by which Demster attempted to protect himself against the stabbing; there was nothing about the wound to indicate Demster was standing or moving when it occurred; and his findings were consistent with Demster being unconscious when he was killed.

When Officer Penner took defendant to the Branson Police Department, he again advised him of his Miranda rights. He was told that he would be charged with first degree murder, armed criminal action and first degree assault. Defendant said that he did not want to give a formal statement but would rather talk with a lawyer. Later, he was overheard telling his mother on the phone that, "I know I lost my temper."

Shortly after noon, defendant asked to see Officer Penner and said he needed to talk with someone. The officer told him he would need to have a lawyer before he could speak with him and that a lawyer would be appointed for him. According to Officer Penner, defendant proceeded to make various statements to him which are summarized later in this opinion.

DISCUSSION

Defendant alleges ineffectiveness of trial counsel. Although defendant's points relied on do not specifically say so, we assume his complaint is the motion court's overruling of the Rule 29.15 motion in which ineffectiveness of counsel was alleged.

In order to prevail on a claim of ineffective assistance of counsel, defendant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Both prongs of the test are required in order to prevail on a claim of ineffective assistance of counsel. Id. Movant has the burden of proving his grounds for relief by a preponderance of the evidence. Rule 29.15(h).

In reviewing claims of ineffective assistance of counsel, there is a presumption that counsel's conduct was appropriate. The United States Supreme Court has said:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... A fair assessment of attorney performance requires that every effort be made to Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-695.

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

The required finding of prejudice is not presumed from a showing of deficient performance of counsel but requires affirmative proof. In proving prejudice, it is insufficient to show that trial counsel's errors had some conceivable effect on the outcome of the proceedings, but rather there must be proof of a reasonable probability that the result would have been different but for the errors. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697; Sidebottom v. State, 781 S.W.2d 791, 796 (Mo. banc 1989).

In reviewing the motion court's denial of postconviction relief, we are limited to a determination of whether the findings and conclusions of the court are clearly erroneous. Rule 29.15(j); Sanders v. State, 738 S.W.2d at 857. Findings and conclusions are clearly erroneous only if a review of the entire record leaves the appellate court with the definite and firm impression that a mistake was made. Id.

POINT I

Defendant argues in Point I that trial counsel was impermissibly ineffective in failing to...