State v. White, 71600

• Decision Date: 23 July 1991
• Docket Number: No. 71600,71600
• Parties: STATE of Missouri, Respondent, v. Leamon WHITE, Appellant.
• Court: Missouri Supreme Court

Page 862

813 S.W.2d 862

STATE of Missouri, Respondent, v. Leamon WHITE, Appellant.

No. 71600.

Supreme Court of Missouri,

En Banc.

July 23, 1991.

Rehearing Denied Sept. 10, 1991.

Nancy A. McKerrow, Columbia, Bruce W. Simon, Kansas City, for appellant.

William L. Webster, Atty. Gen., Joseph P. Murray, Asst. Atty. Gen., Jefferson City, for respondent.

BLACKMAR, Chief Justice.

Defendant White directly appeals his jury conviction of first degree murder, three counts of armed criminal action, and two counts of first degree assault. He also moved for postconviction relief under Rule 29.15 and now appeals from the motion court's denial of relief on procedural grounds. These two appeals were consolidated for review pursuant to Mo. Const. 1945, Art. V, Section 3 and Rule 29.15(l).

Defendant does not challenge the sufficiency of the convicting evidence, but a brief rendition of the facts follows. Defendant went with his friend Roger Buckner to the home of the victims, Don Wright and Carol Kinney. Also present was the third victim, Ernest 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, apparently with extension cords. 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.

Rule 29.15

Proceedings

After his conviction defendant filed a timely but unnotarized pro se postconviction motion on August 17, 1989. The motion court appointed counsel on September 25, 1989. Movant's attorney entered his appearance and moved for a thirty day extension on October 20, 1989. On November 9, 1989 the first attorney filed a motion to withdraw, and a second attorney entered his appearance as movant's counsel. This second attorney filed a "First Amended Motion" and a motion for a thirty day extension of time on November 27, 1989. The motion court then granted movant until January 9, 1990 to file a second amended motion. Movant's counsel filed the second amended motion on January 8, 1990. On August 1, 1990 the motion court entered its findings of fact and conclusions of law denying movant relief without an evidentiary hearing.

Movant argues that this case should be remanded to the motion court for findings on the issue of postconviction counsel's abandonment in light of this Court's recent decisions in Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), and Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991). We agree.

Rule 29.15(f) provides:

Any amended motion shall be verified by movant and shall be filed within thirty days of the date counsel is appointed or the entry of appearance by counsel that is not appointed. The court may extend the time for filing the amended motion for one additional period not to exceed thirty days ...

This Court has held that the effective date of appointment of counsel is the date on which the office of public defender is designated rather than the date of counsel's entry of appearance. See Schneider v. State, 787 S.W.2d 718, 720 (Mo. banc), cert. denied --- U.S. ----, 111 S.Ct. 231, 112 L.Ed.2d 186 (1990) (applying the stated rule prospectively). In this case the motion court appointed counsel, and the thirty day limitation began to run, on September 25, 1989. Movant's first counsel obtained the allowed thirty day extension on October 20, 1989 and then withdrew from the case on November 9, 1989. Movant's second postconviction counsel entered his appearance on November 9, 1989, but failed to file an amended motion until November 27, 1989. Rule 29.15(e) specifically states:

For good cause shown, appointed counsel may be permitted to withdraw. If appointed counsel is permitted to withdraw, the court shall cause new counsel to be appointed.

Neither of movant's attorneys obtained the motion court's permission for the change of counsel. ¹

The first attorney's withdrawal without permission from the motion court could constitute abandonment which arguably prejudiced movant. This issue of abandonment should be the subject of a factual inquiry by the motion court, by conducting an evidentiary hearing, or by examining the existing record if no disputed facts appear.

Movant argues that his second counsel also effectively abandoned him by failing to file a timely and complete amended motion. He argues that the amended motions were not properly verified and do not allege sufficient facts and grounds as required by Rule 29.15(e). This failure to verify and properly amend the claims raises questions as to whether the defendant was essentially abandoned by his postconviction counsel. These issues should also be adjudicated in a factual hearing conducted by the motion court under the teaching of Sanders, 807 S.W.2d at 495.

Counsels' withdrawal, failure to file a timely amended motion, and failure to verify and allege sufficient facts raise serious questions as to whether the movant received postconviction representation in the sense of Rule 29.15. Answers to these questions are for the motion court as part of movant's Rule 29.15 proceedings. Sanders v. State, 807 S.W.2d at 495.

Direct Appeal

In the interest of expedition, we also address defendant's direct appeal claims and find them to be without merit.

Defendant presents five primary claims of error in his direct appeal. First, defendant alleges the trial court erred in refusing to order a new trial after the court informed the jury during voir dire that the two possible sentences for first degree murder included the death penalty or life imprisonment without probation or parole, unless the governor exercised his executive clemency powers. Defendant claims this statement "served to dilute and restrict the [jurors'] sense of responsibility," and is therefore constitutionally prohibited under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

First, it must be noted that defendant's counsel did not object to these comments at the time they were made, and our review is necessarily limited to plain error. Rule 30.20; State v. McMillin, 783 S.W.2d 82, 95 (Mo. banc), cert. denied 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). We find no plain error resulting from the trial court's correct statements of the law. The Supreme Court addressed this question in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), and held that an instruction allowing the jury to consider the governor's powers did not impermissibly restrict the jurors' role in sentencing. Accordingly, this Court held in State v. Feltrop, 803 S.W.2d 1 (Mo. banc 1991), that no error results where the statements were correct statements of existing law. Id. at 9 (citing Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989)). The trial court's statements about punishment accurately reflect Missouri law on the possible punishments for first degree murder. See § 565.020.1. Defendant's first point is denied.

Defendant's second point alleges that the trial court erred by impermissibly restricting the defense counsel's cross-examination of the state's chief witness, Carol Kinney. Defense counsel confronted Ms. Kinney with prior inconsistent statements made to the police and other witnesses in an effort to impeach her direct examination testimony. Defendant accurately points out that this Court set a liberal standard for impeachment of witnesses in State v. Bowman, 741 S.W.2d 10 (Mo. banc 1987), cert. denied 488 U.S. 829, 109 S.Ct. 83, 102 L.Ed.2d 60 (1988). But the use of prior inconsistent statements is not absolute. In State v. Taylor, 726 S.W.2d 335 (Mo. banc 1987), we held "impeachment may be made only where the witness has been asked the specific question upon which [she] is sought to be discredited." Id. at 337 (citations omitted). The scope of cross examination is soundly within the trial court's discretion. This contention is well-supported by Missouri cases both from this Court and the courts of appeals. ² The trial court's decision was not an abuse of discretion. The second point is also denied.

Third, defendant claims the trial court erred in sustaining the prosecutor's challenge of venire members Robertson and Bryson for cause on account of their opinions about imposing the death penalty. Again, this matter rests within the discretion of the trial court, and we find no reason to disturb that court's ruling. This Court in State v. McMillin, 783 S.W.2d at 91, reiterated the proper standard for striking venire members based on their views regarding the death penalty. The record must show for each venire member struck that the "views would 'prevent or substantially impair the performance of his [or her] duties as a juror in accordance with his [or her] instructions and his [or her] oath.' " Id. at 91, quoting Wainwright v. Witt, 469 U.S. 412, 420, 105 S.Ct. 844, 850, 83 L.Ed.2d 841 (1985).

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