State v. White, 71600
| Decision Date | 22 March 1994 |
| Docket Number | No. 71600,71600 |
| Citation | 873 S.W.2d 590 |
| Parties | STATE of Missouri, Respondent, v. Leamon WHITE, Appellant. |
| Court | Missouri Supreme Court |
Melinda K. Pendergraph, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant was convicted in Jackson County Circuit Court of first degree murder, armed criminal action and first degree assault. Defendant was sentenced to death. His direct appeal and motion for post-conviction relief were consolidated. This Court affirmed the appellant's direct appeal and remanded to the motion court for findings on the issue of post-conviction counsel's abandonment in light of Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991). On remand, the motion court dismissed defendant's Rule 29.15 motion because it was not properly verified. In the alternative, the motion court reinstated its findings of fact and conclusions of law dated August 1, 1990, whereby the court denied defendant's motion on the merits. The motion court also reinstated its findings of fact and conclusions of law dated April 15, 1992, in which it determined that defendant was not abandoned. This Court holds that: (1) the verification requirement for defendant's pro se 29.15 motion was met when defendant signed the motion; (2) a remand to the motion court in accordance with Barry v. State, 850 S.W.2d 348 (Mo. banc 1993), is required for findings of fact and conclusions of law on defendant's pro se 29.15 motion; (3) defendant's first and second amended 29.15 motions were verified, but were not timely filed and should have been dismissed; (4) defendant was abandoned by the decision of the Office of State Public Defender to change defendant's counsel fourteen days before the end of the sixty day period for filing the Rule 29.15 amended motion without leave of court, by his first appointed counsel's withdrawal without leave of the motion court, and by both his first and second appointed counsel's failure to file an amended motion timely; (5) defendant was not abandoned by counsel for improperly verifying his amended motions or for failure to allege sufficient facts and grounds for relief; (6) defendant's first amended 29.15 motion is revived because defendant was abandoned as to the timeliness of the first amended motion but not as to the motion's content; (7) defendant's second amended 29.15 motion was properly dismissed as untimely filed; and (8) on remand the motion court should make findings of fact and conclusions of law on defendant's first amended motion in accordance with Barry, 850 S.W.2d 348.
We adopt the statement of facts from our earlier opinion in State v. White, 813 S.W.2d 862 (Mo. banc 1991). The brief rendition of the facts in White are as follows.
On January 5, 1987, defendant went with his friend Roger Buckner to the home of the victims, Don Wright and Carol Kinney. Also present was the third victim, Earnest Black, a guest in the home. The purpose of defendant's visit was to obtain some "crack" cocaine. Wright had previously promised to get the cocaine and sell it to White. When defendant and Buckner arrived, they discussed the crack deal with Wright. During the discussion Cleveland Ford, another of White's friends, came into the house unannounced through the back door and claimed to be associated with defendant and Buckner. At that point, the three purported drug buyers drew guns. Defendant put his gun to Wright's head and asked him where he kept the money and drugs. Wright said there were no drugs or money in the house. Defendant and his companions then tied up Wright, Black, Kinney and Kinney's two children. The assailants beat Wright and Black with their guns, all the while unsuccessfully interrogating them about where the money and drugs could be found.
According to the witnesses' testimony, White declared that the three adults should die. Ford held up Wright's head while defendant slit his throat. Buckner then cut Kinney's throat repeatedly, slicing her jugular vein. Defendant, Buckner, and Ford then turned on the gas stove, extinguished the pilot lights, and left the apartment. Wright died from strangulation and asphyxiation. Black and Kinney survived this vicious attack and later identified White, Buckner and Ford as their attackers.
After his conviction, defendant filed a timely pro se post-conviction motion on August 17, 1989, which was not notarized. Defendant signed and placed his thumbprint on the pro se motion, stating that a notary public was unavailable. On September 25, 1989, the court appointed the Office of State Public Defender for the Sixteenth Judicial Circuit to represent the defendant on his post-conviction relief motion and granted defendant until October 23, 1989, to file an amended motion. On October 20, 1989, movant's first attorney entered his appearance and moved for a thirty day extension to file his amended motion. The motion court granted defendant an extension until November 23, 1989; this was the only extension authorized by Rule 29.15(e).
On November 9, 1989, which was fourteen days prior to the last day the amended motion could be filed, 1 the first attorney filed a motion to withdraw, and a second attorney entered his appearance as movant's counsel. On November 23, 1989, which was the filing deadline, neither of defendant's appointed counsel had filed an amended motion. On November 27, 1989, defendant's second appointed counsel filed a first amended motion and a motion for a thirty day extension of time. This first amended motion contained a handwritten verification that defendant had signed on November 14, 1989, which was prior to the drafting of the amended motion. The verification was notarized by defendant's second appointed counsel.
Although the motion court had no jurisdiction to do so under Rule 29.15(e), it granted movant's request for a second extension of time to January 9, 1990, to file another amended motion. Movant's counsel filed the second amended motion on January 8, 1990. The second amended motion also contained the handwritten verification that appellant had signed on November 14, which was prior to the drafting of either the first or second amended motions. On August 1, 1990, the motion court entered its findings of fact and conclusions of law denying movant relief without an evidentiary hearing. On appeal from the motion court's findings, this Court remanded to the motion court for a determination of whether post-conviction counsel had abandoned defendant in light of this Court's decision in Sanders, 807 S.W.2d 493.
On remand, the motion court found that defendant was not abandoned because his original pro se motion was not properly verified and, therefore, the court dismissed defendant's pro se motion and the first and second amended motions filed by his second attorney. The court concluded that an attorney cannot abandon something that does not exist. In the alternative, the motion court found that: (1) the first attorney's withdrawal without permission of the court did not amount to abandonment because defendant's second attorney had ample time within which to file the first amended motion (sixty days); (2) the late filing of defendant's first amended motion did not amount to abandonment because of the order allowing defendant an extension of time to file his first amended motion; and (3) defendant was not abandoned by the late filing of his second amended motion because it was filed within the extension granted by the court. Finally, in the third alternative, the motion court reinstated its findings of fact and conclusions of law dated August 1, 1990, overruling defendant's 29.15 motion in the event that this Court determines that it was not proper for the motion court to dismiss defendant's pro se motion and first and second amended motions filed by counsel.
The State argues that the motion court did not have jurisdiction to rule on defendant's 29.15 pro se motion because it was not properly verified. Rule 29.15 requires: "The movant shall verify the motion, declaring that he has listed all grounds for relief known to him and acknowledging his understanding that he waives any ground for relief known to him that is not listed in the motion." In Crawford v. State, 834 S.W.2d 749, 752 (Mo. banc 1992), we concluded that "verified" as used in Rule 29.15 means that a declaration must be made in a manner that is supported by a movant's oath or affirmation. "A movant does that by subscribing to the required declaration while in the presence of someone authorized by Missouri law to administer oaths and affirmations." Id. For inmates such as defendant White, post-conviction motions are generally verified by a notary located in the correctional facility. In our experience, defendants who are incarcerated frequently complain that they have difficulty arranging for a notary public to verify their post-conviction motions so that they can be timely filed. We pass no judgment on the validity of this excuse. But death penalty cases, often involving heinous crimes, have become clouded by arguments regarding verification and the filing of paper work. Missouri courts need to see through this blizzard of paper and technicalities that fog the underlying issues so that they can reach a just and timely result, especially in death penalty cases. The public is frustrated with the drawn-out nature of death penalty cases and, therefore, we need to refine the post-conviction motion requirements to expedite the proceedings.
Although we wish to avoid any unnecessary technicalities that hinder a movant's ability to file timely a pro se 29.15 motion, we remain stringent about the time requirements for post-conviction motions. To alleviate one technicality, however, we hold that henceforth, for purposes of filing a pro se 29.15 motion, the...
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