State v. Young, s. 58910

• Decision Date: 08 December 1992
• Docket Number: Nos. 58910,61304,s. 58910
• Citation: 844 S.W.2d 541
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Clay YOUNG, Defendant-Appellant. Clay YOUNG, Movant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 541

844 S.W.2d 541

STATE of Missouri, Plaintiff-Respondent, v. Clay YOUNG, Defendant-Appellant.

Clay YOUNG, Movant, v. STATE of Missouri, Respondent.

Nos. 58910, 61304.

Missouri Court of Appeals,

Eastern District,

Division Two.

Dec. 8, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Jan. 21, 1993.

Deborah B. Wafer, St. Louis, for appellant.

William L. Webster, Atty. Gen., Robert Alan Kelly, Asst. Atty. Gen., Jefferson City, for respondent.

PUDLOWSKI, Judge.

This is a consolidated appeal from the jury trial of Appellant Clay Young for the murder of a four year old girl. A jury found appellant guilty of second degree murder and armed criminal action. Appellant was sentenced to a life term and a consecutive three year term, respectively, on these charges. Appellant's Rule 29.15 motion for post conviction relief was denied without an evidentiary hearing. We affirm.

On December 23, 1989, a group of people were gathered at the home of appellant, 68 year old Clay Young, in the City of St. Louis. The group included appellant's girlfriend, Velma Booker, Velma's daughter and son, Pauline Williams and Terrence Booker, and Pauline's boyfriend, Terry Channel. Velma's car had stalled in front of appellant's house in the cold weather on the previous day. Velma hoped to get her car started so she could take Pauline, who was sick, to the hospital.

Throughout the morning appellant and Terry Channel were drinking. At appellant's suggestion, Velma called Pervis Vinson, a friend of appellant, for help with her car. Pervis came to appellant's house and confirmed that Velma's car needed a new battery. Pervis and Terrence Booker went to the auto parts store that Pervis' family owned to get a battery for Velma's car. In the meantime, Velma and Pauline remained at appellant's house. Appellant and Terry Channel continued drinking homemade wine and 1 1/2 pints of gin that Terry went out to buy.

While the group waited for Terrence Booker and Pervis to return, Pauline's friend Angela Hornbeak arrived at appellant's home to see Pauline. Angela parked her car directly behind Velma's car on the same side of the street as appellant's house. The driver's side was in front of and faced the house. Leaving the car running, Angela and her four year old daughter Tiffany walked up to appellant's front door. Angela spoke with Pauline and Terry Channel in the doorway about whether Pauline needed a ride to the hospital.

During this conversation, appellant made verbal and physical advances toward Angela in front of the others. Angela ignored appellant even though he was "saying how nice looking she was and how nice she was built and he wished that his woman was built like [her]." When appellant tried to touch Angela, Pauline and Terry Channel stepped between them. Velma observed appellant's repeated attempts to touch Angela and became embarrassed. She asked appellant to stop his remarks and advances toward Angela. Velma walked over to Clay and pushed him, and he pushed her back. Pauline intervened telling appellant to stop pushing her mother. Appellant became belligerent and ordered everyone out of his house declaring, "All you son of a bitches get out of my house."

Everyone except for appellant left the house and went to Angela's car to wait for Pervis and Terrence Booker. Velma, Pauline, Terry, Angela and Tiffany all crammed into Angela's running car to keep warm and out of the bitter cold. When Pervis and Terrence returned with the new battery, Velma and Terry got out to help them fix Velma's car. Angela was still sitting in the front seat of her car, and Pauline was in the back seat playing with Tiffany, who was on her right knee.

After Pervis installed the battery, appellant came out of his house and paid Pervis fifteen dollars for fixing the car. Appellant kept trying to help Pervis but only interfered. In addition to aggravating Pervis, appellant urinated on himself and was "out of control." Appellant walked back into his house as Pervis finished Velma's car and drove away.

Once inside appellant grabbed his loaded .22 caliber rifle that was equipped with a scope. Appellant opened his front door, stood in the doorway and aimed the rifle out the partially opened screen door. Velma yelled at appellant to stop. One shot was fired. Terry Channel and Terrence Booker heard the shot and saw appellant holding the gun at his shoulder and aiming at Angela's car. The scene turned chaotic. Terry, Terrence and Pauline got down on the ground. Velma ran door-to-door seeking help. Angela grabbed Tiffany and began running for cover. As she ran, she noticed blood all over Tiffany's snow suit. Tiffany had been shot through the neck. Angela ran back to the car with Tiffany and drove off to the hospital. On the way to the hospital Angela had an accident. She flagged down a driver who gave them a ride to Children's Hospital. Tragically, Tiffany Hornbeak died as a result of the gunshot wound 69 days later.

After appellant fired the single fatal shot, he simply stood at the door for a moment. Appellant went back in his house and closed the doors. Velma obtained the help of Willie Percy, a police officer, who lived across the street from appellant. More police officers quickly responded to Percy's call for assistance. Once on the scene, the police arrested appellant in his house. Appellant signed a Consent to Search form authorizing a full police search. The police retrieved a small, scopeless air-rifle from appellant's bedroom closet. At the police station, witnesses agreed that this was not the gun they saw appellant fire. After a further search of appellant's house, the police found the .22 caliber scoped rifle behind an old screen door stored in appellant's basement. The witnesses positively identified this second rifle as the gun appellant shot at Angela's car.

At trial, appellant testified that he had gone to the front door with his gun and "didn't see no one so when I turned to go back in the house it shot, fired." Appellant also stated that he did not intend to shoot anybody. On July 11, 1990, the jury convicted appellant of armed criminal action and murder in the second degree for the shooting death of four year old Tiffany Hornbeak. Following this conviction, appellant filed his notice of direct appeal on August 27, 1990. On August 14, 1991, appellant filed a pro se motion for post-conviction relief pursuant to Rule 29.15. Counsel was appointed and filed an amended motion on October 16, 1991. On November 18, 1991, the motion court entered its findings, conclusions and order denying appellant's request for post-conviction relief without an evidentiary hearing.

Appellant raises one point with six subpoints on appeal. ¹ Appellant argues that the motion court erred in denying appellant's post-conviction motion or, in the alternative, failing to grant an evidentiary hearing because that violated his right to due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Missouri Constitution. Appellant contends that he timely requested an evidentiary hearing and alleged facts not refuted by the record which showed prejudice to movant and were sufficient as a matter of law to require a new trial or, in the alternative, a hearing. Appellant asserts, in five subpoints, instances of ineffective assistance of counsel that prejudiced movant.

Appellate review of the denial of a post-conviction motion is limited to a determination of whether the findings and conclusions of the motion court are "clearly erroneous." State v. Vinson, 800 S.W.2d 444, 448 (Mo. banc 1990). Findings and conclusions are clearly erroneous only if, after review of the entire record, the court is left with the definite and firm impression that a mistake has been made. Id. Furthermore, in order for a Rule 29.15 movant to be entitled to an evidentiary hearing, he must allege facts, not mere conclusions, which would warrant relief; the allegations must not raise matters refuted by the record; and the matters complained of must have resulted in prejudice to movant's defense. Tyler v. State, 787 S.W.2d 778, 779 (Mo.App.1990).

Additionally, in order to prevail on a claim of ineffective assistance of counsel, a movant must establish that his attorney's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Both the performance prong and the prejudice prong must be satisfied for movant to prevail on an ineffective assistance of counsel claim. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

Deficient performance is shown by counsel's acts or omissions which, in light of all the circumstances, were outside the wide range of professionally competent assistance. State v. Stepter, 794 S.W.2d 649, 656 (Mo. banc 1990). Movant must also overcome the presumption that counsel was competent and the challenged acts or omissions were sound trial strategy. Id.

Prejudice is shown by proof that, but for counsel's unprofessional errors, there was a reasonable probability that the result would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Prejudice is not presumed from a showing of deficient performance of counsel, but must be affirmatively proved. Id. at 693, 104 S.Ct. at 2067. Stepter, 794 S.W.2d at 656. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067.

There is no need for a court to address both prongs of the test if the defendant makes an insufficient showing on one. Stepter, 794 S.W.2d at 656-57. Finally, the movant has the burden of proving grounds for relief by a preponderance of the evidence. Rule 29.15(h). Stepter, 794 S.W.2d at 657.

Appellant's first claim of ineffective assistance of counsel is trial counsel's failure to object to evidence of the unrelated gun...