Storey v. State
| Citation | 175 S.W.3d 116 |
| Decision Date | 22 November 2005 |
| Docket Number | No. SC 85980.,SC 85980. |
| Parties | Walter Timothy STOREY, Appellant, v. STATE of Missouri, Respondent. |
| Court | United States State Supreme Court of Missouri |
William J. Swift, Office of Public Defender, Columbia, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
Walter Timothy Storey was sentenced to death for the murder of Jill Frey, life-imprisonment for armed criminal action, seven years for burglary, and five years for tampering. Two previous juries had sentenced Storey to death. Those sentencing trials were reversed for evidentiary and counsel errors. State v. Storey, 986 S.W.2d 462 (Mo. banc 1999); State v. Storey, 901 S.W.2d 886 (Mo. banc 1995). This Court upheld the third sentencing on direct appeal. State v. Storey, 40 S.W.3d 898 (Mo. banc 2001). Storey now seeks post-conviction relief under Rule 29.15. He alleges 13 points of error with multiple subpoints, which allegedly denied him effective assistance of counsel, due process, and freedom from cruel and unusual punishment. The motion court denied post-conviction relief. This Court affirms.
On Friday, February 2, 1990, Storey became upset over his pending divorce. After finishing all of his beer, he decided to steal money for more beer from Ms. Frey, a special education teacher, who lived in a neighboring apartment. He climbed her balcony and entered an unlocked sliding glass door. He stole her car keys, entered her bedroom, and, in his words, "struggled" with her.
Ms. Frey died of blood loss and asphyxiation from two neck wounds, which cut through both of her jugular veins, her airway, her esophagus, and into her spine. Before she lost consciousness, she had her eyelid torn off and suffered injuries to her forehead, nose, cheeks, scalp, lips, and tongue. She also had defensive wounds to her arms and hand. Ms. Frey suffered an abrasion on her right knee, a six-inch stab wound to her abdomen, four internal impact injuries to her head, and five fractured ribs. Storey struck Ms. Frey a minimum of twenty times before cutting her throat to the spine.
The next day he returned to her apartment, wiped it down, scrubbed Ms. Frey's fingernails, and attempted to remove any other incriminating evidence. When her body was found, she was lying face down in a pool of blood, naked below the waist, with her arms behind her back. The walls were splattered with blood, and her shirt had a tennis shoe imprint on it. The police found Storey's bloody palm print in the room. After searching the dumpster, the police also found Ms. Frey's briefcase along with a paper bag containing a bloody t-shirt, a tank-top, and a pair of white gloves. Ms. Frey's blood was on the gloves, and Storey's blood was on the t-shirt. Storey's sneakers also had blood on them.
In Storey's third sentencing trial, defense counsel decided to pursue a two-pronged strategy. First, evidence was presented to show all of the bad influences and discord that surrounded Storey's childhood. Second, evidence was presented to show Storey's good deeds and friendly disposition. Counsel presented several mitigating witnesses at trial. Mr. Aiken, an expert in the field of corrections and criminal justice, testified about Storey's non-violent prison record. He testified that Storey "can be safely housed and incarcerated in a correctional facility such as Potosi for the remainder of his life without presenting a risk of harm to inmates, staff or the community. . . ." Regarding housing Storey for life in prison, "In my professional opinion, I have a higher probability of being in an earthquake than for him to violate a major rule violation." Judy Robart, Storey's boss at the Potosi Correctional Center library, testified that Storey had worked in the library with her for a year. She testified that while Storey worked for her, he got along with her and the other inmates
Patricia Basler, Storey's mother, testified that Storey was physically, emotionally, and sexually abused by his stepfather as a child. She testified that from the time he was two to three years old, his stepfather beat him with "[b]elts, switches, tree limbs, electrical cords, fishing — fiberglass fishing rods, [and his] fist at times." She told how Storey's stepfather placed Storey in a nest of fire ants. Then she testified of all the nice things that Storey did as a child. She said "he had a big heart" and that he sends her flowers, cards, poetry, and letters from prison. Counsel introduced pictures of Storey's childhood to corroborate his good demeanor.
Dr. Gerald Vandenberg, a clinical forensic psychologist, testified that Storey was abused continually as a child. The earliest included an episode, where "[h]is father reportedly taped his hands to the crib and taped his mouth shut." Dr. Vandenberg testified that negligence and abuse Dr. Vandenberg diagnosed Storey with a borderline personality disorder. Dr. Vandenberg testified that Storey did not have an anti-social personality disorder because he was not predatory. While on the stand, he was asked: "[D]id you find or believe that the murder of Jill Frey was committed while [Storey] was under the influence of extreme mental or emotional disturbance?" Dr. Vandenberg answered: Regarding Storey's recovery from posttraumatic stress disorder, Dr. Vandenberg stated: "In '93 I also diagnosed [Storey with] a posttraumatic stress disorder characterized in part by nightmares about the beatings, vigilance, that sort of thing and that's pretty much washed out."
Counsel called Faye Kerfoot, Storey's adopted aunt, who testified that when Storey was little, she saw "stripes, you know like welt marks on his back and on his little butt." Counsel called Sheila Eubanks, Storey's cousin, who also testified of seeing Storey whipped abusively as a child. Then she testified: Next, counsel called Jimmy Dees, Storey's uncle, who testified about Storey's good disposition. Regarding Storey's life, he stated, "I feel that he has been a loving and caring person and I love him."
Counsel called Sharon Stacey, Storey's cousin, who testified that she watched Storey's stepfather force Storey, as a child, to box his brother until they were both bleeding and crying. She then testified that "Whenever he had toys, it didn't matter, he would have a brand new toy and the first little kid that came over to play with him he would just give it to him just because they wanted it." Finally, counsel called Carol Storey, Storey's sister-in-law, and Keith Storey, Storey's brother, to confirm the abuse testimony. These witnesses introduced many other instances of abuse that occurred while Storey was a child and corroborated one another's stories.
Storey alleges 13 instances of counsel ineffectiveness in this appeal summarized as follows: 1) counsel failed to impeach Storey's ex-wife; 2) counsel failed to call the judge and bailiff to testify in a special hearing held to investigate jury misconduct; 3) rule 29.15 counsel failed to establish jury misconduct or persuade the motion court to recall the jury during the motion hearing; 4) counsel failed to object to victim impact and other evidence admitted at trial or preserve the issue for appeal; 5) counsel failed to present evidence through additional witnesses; 6) counsel failed to find impeaching evidence or obtain independent testing of unidentified hairs found on Ms. Frey's body; 7) counsel failed to present additional mitigating evidence through several experts; 8) prosecutorial misconduct; 9) direct appeal counsel was ineffective for not raising several allegations of trial court error; 10) counsel failed to object to several points of witness testimony; 11) counsel failed to object to two of the prosecutor's arguments; 12) counsel failed to object to the prosecutor's description of the burden of proof; and 13) counsel failed to object to confusing jury penalty instructions.
This Court's review of the motion court's denial of post-conviction relief is limited to a determination of whether "the motion court clearly erred in making its findings of fact and conclusions of law." Skillicorn v. State, 22 S.W.3d 678, 681 (Mo. banc 2000), cert. denied, 531 U.S. 1039, 121 S.Ct. 630, 148 L.Ed.2d 538 (2000). A judgment is clearly erroneous when, in light of the entire record, "the court is left with the definite and firm impression that a mistake has been made." Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). The motion court's findings are presumed correct. Black v. State, 151 S.W.3d 49, 54 (Mo. banc 2004).
In order to receive post-conviction relief,
[f]irst, the defendant must show that counsel's...
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