Strong v. State

• Citation: 263 S.W.3d 636
• Decision Date: 31 July 2008
• Docket Number: No. SC 88311.,SC 88311.
• Parties: Richard STRONG, Appellant, v. STATE of Missouri, Respondent.
• Court: United States State Supreme Court of Missouri

263 S.W.3d 636

Richard STRONG, Appellant, v. STATE of Missouri, Respondent.

No. SC 88311.

Supreme Court of Missouri, En Banc.

July 31, 2008.

Rehearing Denied September 30, 2008.

Melinda K. Pendergraph, Office of Public Defender, Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.

PATRICIA BRECKENRIDGE, Judge.

Mr. Richard Strong appeals the denial of his Rule 29.15 motion for post-conviction relief from his convictions for two counts of first degree murder and sentences of death. Because this case involves the death penalty, this Court has jurisdiction. Mo. Const. art. V, sec. 10; order of June 16, 1988. On appeal, Mr. Strong claims that the motion court erred in denying his request to interview jurors and his six claims of ineffective assistance of trial counsel. He also asserts that Missouri's method of lethal injection is unconstitutional because it is cruel and unusual punishment. This Court affirms the motion court's denial of post-conviction relief.

I. Factual and Procedural Background¹

On October 23, 2000, police officers were dispatched to the home of Eva Washington, following a 911 call. Ms. Washington lived in the home with her two-year-old daughter, Zandrea Thomas, and Ms. Washington and Mr. Strong's three-month-old daughter. When the police arrived, no one initially answered the front or back doors. The officers continued to knock and shout, and Mr. Strong eventually came to the back door. When he answered, he was informed of the 911 call and asked if his "wife" and kids were all right. In response, Mr. Strong told the police that Eva Washington and the two children were inside sleeping. Mr. Strong then stepped out and closed the door behind him. The police again asked about Ms. Washington, and Mr. Strong stated that she was at work. Because this conflicted with his prior statement, the police inquired again about the children. Mr. Strong told the officers the children were inside. When the officers asked if they could check on the children, Mr. Strong told them he had locked himself out. Mr. Strong knocked on the door and called for someone to open it.

The officers noted that Mr. Strong was sweating profusely, had dark stains on the knees of his jeans, and had blood on his left hand. They ordered Mr. Strong to step aside and kicked in the door. Mr. Strong ran. When the officers chased him, Mr. Strong told them, "Just shoot me; just shoot me." After he was caught and handcuffed, he told the officers, "I killed them."

Inside the apartment, police found the dead bodies of Ms. Washington and Zandrea in a back bedroom. Both had been repeatedly stabbed with a knife. On the bed, one of the officers found a large butcher knife. An autopsy revealed that Ms. Washington had been stabbed twenty-one times and had five slash wounds, and the tip of the knife with which she had been stabbed was embedded in her skull. The autopsy of Zandrea showed she had been stabbed nine times and had twelve slash wounds. The nature of the wounds to Ms. Washington and Zandrea were quite similar and appeared to be deliberate, calculated and intended to kill. Both victims had wounds that could be characterized as a "gutting," in that their intestines protruded from the wounds. The one difference in the nature of the wounds is that Zandrea had a neck wound, which indicates an attempt to saw off her head. There were no defensive wounds on either body. The three-month-old baby was on the bed next to a pool of blood, but was unharmed.

Mr. Strong was charged with two counts of first degree murder for the deaths of Ms. Washington and Zandrea. A jury convicted him of both murders, and the court adopted the jury's recommendation and sentenced him to death. He appealed, and this Court affirmed the convictions and sentences. State v. Strong, 142 S.W.3d 702 (Mo. banc 2004). Following his direct appeal, Mr. Strong filed a motion for post-conviction relief under Rule 29.15. After an evidentiary hearing, the motion court denied all his claims, finding that the record evidences a "very zealous and well-prepared attorney" and that Mr. Strong failed to demonstrate any ineffective assistance or prejudice. This Court affirms the motion court's judgment.

II. Standard of Review

In reviewing the overruling of a motion for post-conviction relief, the motion court's ruling is presumed correct. Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). A motion court's judgment will only be overturned when either its findings of fact or its conclusions of law are clearly erroneous. Rule 29.15; Worthington, 166 S.W.3d at 572. To overturn, the ruling must leave the appellate court with a "definite impression that a mistake has been made." Id.

To be entitled to post-conviction relief for ineffective assistance of counsel, the defendant must satisfy the two-prong Strickland test: first, the defendant must show that his attorney failed to exercise the level of skill and diligence that a reasonably competent attorney would exercise in a similar situation and, second, that trial counsel's failure prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both of these prongs must be shown by a preponderance of the evidence in order to prove ineffective assistance of counsel. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006).

Mr. Strong must overcome a strong presumption that counsel's conduct was reasonable and effective to meet the first prong of the Strickland test. Id. To overcome this presumption, Mr. Strong must point to "specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Id.

Trial strategy decisions may only serve as a basis for ineffective counsel if they are unreasonable. See id. The choice of one reasonable trial strategy over another is not ineffective assistance. Worthington, 166 S.W.3d at 573. "[S]trategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable." Anderson, 196 S.W.3d at 33 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

To satisfy the prejudice prong of the Strickland test, Mr. Strong must demonstrate that, absent the claimed errors, there is a reasonable probability that the outcome would be different. Id. at 33-34, 104 S.Ct. 2052. Regarding a sentence to death, a defendant must show with reasonable probability that the jury, balancing all of the circumstances, would not have awarded the death penalty. Id. at 34, 104 S.Ct. 2052.

III. Issues on Appeal

On appeal, Mr. Strong asserts eight points of error, which are reordered for ease of understanding. He claims that the motion court erred (A) in refusing to allow Mr. Strong to contact jurors following his trial to investigate and prove claims of ineffective assistance of counsel and juror misconduct. Mr. Strong also claims that the motion court erred in denying his claims that trial counsel was ineffective for failing to: (B) object to the state's peremptory strikes against vernirepersons Stevenson and Bobo for religious reasons; (C) utilize a lack of deliberation defense during the guilt phase instead of the defense that the state had not proved guilt beyond a reasonable doubt; (D) object to the admission of out-of-court statements made by Ms. Washington to the police before her death; (E) properly object to the prosecutor's use of a computerized slide show of photographs of the victims during the penalty phase; (F) investigate and present all reasonably available mitigating evidence in the penalty phase; and (G) present Mr. Strong's videotaped police interview during the penalty phase. He further asserts that the motion court erred (H) in denying his claim that Missouri's method of lethal injection constitutes cruel and unusual punishment.

A. Denial of Post-Trial Interview of Jurors

Mr. Strong claims that the motion court erred in refusing to allow him to contact jurors following the trial to investigate and prove claims of ineffective assistance of counsel and juror misconduct. Post-conviction counsel filed a motion to "contact petit jurors" prior to the filing of an amended motion for relief. Mr. Strong states that such refusal is especially unfair because the motion court faulted him for failing to present the testimony of jurors in support of his post-conviction claim of prejudice resulting from the claimed ineffectiveness of counsel.²

In the court where Mr. Strong was tried, a local court rule prohibits an attorney or a party from contacting petit jurors without court permission. St. Louis County Local Rule 53.3. Pursuant to this rule, Mr. Strong sought permission from the court to contact the jurors, on the grounds that he anticipated raising two ineffective assistance of counsel claims—first, for counsel's failure to question the panel during voir dire regarding their ability to remain fair and impartial after viewing gruesome photographs and, second, concerning the record made by trial counsel regarding the peremptory strikes used by the prosecution against Sylvia Stevenson and Luke Bobo. Post-conviction relief counsel also stated that after further review of the record he might identify additional claims. The motion court overruled the motion, stating that it would reconsider upon a showing of reasonable cause to believe, from actual factual allegations, that defendant's rights had been violated.

Mr. Strong has no inherent right to contact and interview jurors. Courts have discretionary power to grant permission for contact with jurors after a trial. State v. Jones, 979 S.W.2d 171, 183 (Mo. banc 1998). Additionally, his use of any information obtained from the jurors is limited, in that Missouri courts exclude juror testimony from consideration on post-judgment matters:

The rule is perfectly settled, that jurors speak...