State v. Wells, 70254
| Decision Date | 05 March 1991 |
| Docket Number | No. 70254,70254 |
| Citation | 804 S.W.2d 746 |
| Parties | STATE of Missouri, Respondent, v. Luther WELLS, Appellant. |
| Court | Missouri Supreme Court |
Craig A. Johnston, Columbia, for appellant.
William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.
The defendant was convicted of first degree murder and, in accordance with the jury's verdict, was sentenced to death. He was also convicted of armed criminal action and sentenced to life imprisonment. The appeal was held in abeyance pending proceedings under Rule 29.15, which were heard by the judge who presided at the trial. The judge found that the allegations of ineffective assistance of counsel set forth in the defendant's pro se 29.15 motion were well taken, and ordered a new trial. 1 The state appealed from this order and, in accordance with Rule 29.15, the two appeals were consolidated. We conclude that the order granting a new trial is not shown to be clearly erroneous, and so affirm this order. There is no need to consider the merits of the appeal from the conviction and sentence.
Attention to the basic facts the jury could have found is necessary. In March of 1986 the defendant, an inmate at St. Mary's Honor Center, was visiting in a home occupied by his niece, Flora Hawlett, and Harry Truman Burkeen. Also present were several others including the victim, Joseph Judd. Most of those present seem to have been on, or over, the fringe of the law. Judd had an argument with the defendant, who abruptly stabbed him. The defendant balked at calling an ambulance, fearing that his deed would be discovered, but he later said he would take Judd to a hospital.
Hawlett, Burkeen and the defendant then left in Hawlett's car, with Judd in the back seat. The defendant drove. Instead of stopping at a hospital he continued to drive for about half an hour after passing the hospital exit. He then stabbed Judd twice more, dragged him out of the car, and stabbed him repeatedly. Judd was later found dead at the side of the road. The defendant was arrested the next day and made several confessions, including a videotaped reenactment of the crime.
Hawlett and Burkeen testified at the trial, and the confessions were introduced. It was shown that the defendant's clothing was spotted with blood of a type which could have been Judd's, but the type was not uncommon. The defendant did not testify. His counsel, in cross-examination and closing argument, planted the suggestion that Burkeen was the killer.
Evidence at the 29.15 hearing showed that the defendant, prior to the trial, asked his trial counsel to obtain a letter Hawlett had written to him while he was in jail, in which she said she knew that Burkeen was guilty and that the defendant was not. 2 The defendant had had a series of public defenders, and he turned the letter over to one of his earlier lawyers. The court found that trial counsel made no effort to get this important piece of evidence, before or during the trial. Defense counsel, testifying on direct examination at the postconviction hearing, explained her lack of effort by asserting that she did not believe that there was any such letter. She was proved wrong. The defendant got possession of the letter after the trial was over and it was introduced at the 29.15 hearing.
At the conclusion of the postconviction hearing the trial judge observed as follows:
Gentlemen, I don't know how I could possibly not sustain the Motion for a New Trial in the case in view of all the heard (sic) things that happened to this letter.
I don't know whether it was trial strategy, but I don't recall that she discussed it with Mr. Wells that it was trial strategy.
He therefore sustained the 29.15 motion on the ground of ineffectiveness of counsel.
His explicit written findings included the following:
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(t) Movant was prejudiced by the ineffective assistance of his counsel in that Dorothy Hirzy never fully investigated the allegations by movant that there was a letter from Flora Hawlett to him stating that Truman Burkeen was the murderer.
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7. ... Hirzy claimed that she did not believe Movant's statements that Flora wrote a letter....
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12. Movant has produced the letter written by Flora Hawlett in his post-conviction proceeding in which she expressed regret that Movant was locked up for a crime he did not commit.
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The evidence presented to this court clearly establishes that the letter was readily available to Hirzy, yet she failed to take any reasonable steps to obtain it or present it at trial.
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The Court finds Hirzy's testimony at the motion for new trial and in her direct testimony at the evidentiary hearing more credible than the directly contradictory theory of a secret trial strategy....
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Flora's letter to Movant constituted substantial evidence which would support doubts in the testimony of Truman Burkeen and Flora Hawlett and support doubts in the accuracy of Movant's confession. It would have also bolstered the credibility of state witness McCray's testimony which conflicted with that of Burkeen and Hawlett.
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The state argues that the trial court, in ordering a new trial, misapplied the holding of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It is particularly suggested that the defendant has not shown that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.
It certainly cannot be said that the trial judge overlooked Strickland. His findings show that he was quite aware of the Strickland test and purported to apply it. The defendant's trial counsel, in her cross-examination, asserted considerations of trial strategy in not obtaining the letter, but the judge said pointedly that he did not believe her explanation. He considered the letter an important piece of...
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