Thomas v. State

Decision Date29 November 1988
Docket NumberNo. 15448,15448
Citation761 S.W.2d 246
PartiesLafayette THOMAS, Movant-Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Tim Wynes, Columbia, for movant-appellant.

William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for respondent.

MAUS, Judge.

A jury found movant, Lafayette Thomas, guilty of murder in the second degree by causing the death of his wife by burning her. § 565.004, RSMo 1978 (repealed L.1983, p. 922, S.B. No. 276, § 1). He was sentenced to imprisonment for 50 years. His conviction was affirmed. State v. Thomas, 664 S.W.2d 56 (Mo.App.1984). Sentence was pronounced prior to January 1, 1988, and his motion for post-conviction relief under Rule 27.26 was pending on that date. Therefore, "post-conviction relief shall continue to be governed by the provisions of Rule 27.26 in effect on the date the motion was filed." Rule 29.15(m). The motion court entered detailed findings of fact and conclusions of law and dismissed the motion without an evidentiary hearing. The movant states one point on appeal.

That point is that the motion court erred because four allegations of the motion pled facts which established ineffective assistance of counsel. Those allegations include counsel's failure to investigate and call a witness. The disposition of the point requires consideration of the evidence offered at trial. A recital of that evidence relevant to the direct appeal is found in State v. Thomas, supra.

A summary of the evidence relevant to the disposition of the motion for post-conviction relief gleaned from the trial transcript is as follows. The movant and his wife and children lived in a frame dwelling in Springfield. The couple had frequent domestic quarrels. Before the tragedy in question, the movant and his daughter Pamela went to a laundromat. After washing some clothes, they returned to the house. Movant and his wife engaged in another quarrel. The movant had the children go into a bedroom.

The movant's testimony concerning the ensuing events included the following. His wife suggested they go outside. They continued to quarrel. They went into an enclosed porch or room on the back of the house. This room was accessible only from the outside. The movant called this his "office room." He used this room for a variety of his own purposes, including storage of sundry items, such as tools, a battery charger, food, lights and a rod and reel. The office room was forbidden to the children. When movant and his wife were quarreling in the office room, he shoved her. This caused her to strike her head and fall to the floor. The movant had a jar of gasoline on a shelf on the wall. He was going to use the gasoline to clean the sparkplugs for his automobile. His wife's fall caused the gasoline to spill upon her. A "gooseneck" lamp on the shelf also fell. This caused the gasoline on his wife and on the floor of the office room to ignite. His wife ran from the office room to the front yard. There he pushed her to the ground. He tried to put out the fire with a sheet. This failed and he got a rug and put out the fire. Because the house was on fire, he told the children to call the police and get out. He carried his wife across the street and laid her on the grass. He moved his car from the driveway to the street. He was then arrested.

The movant admitted that on that day he got his .25 automatic handgun from the pawnshop. He further said that he had the gun during the altercation with his wife and that it accidentally discharged three times. The victim was not shot. There was no evidence the discharged bullets were located.

The movant's daughter Yulanda testified at the trial. She was ten years old at the time of the occurrence. She said that the movant took her mother outside. She heard him say "I'm gonna burn you." She then heard hitting against the house and two shots. The children ran to the front window and looked out. She saw her mother on the ground burning. Her father stood up and laughed. He did get a rug and put out the fire. He came in and told them to get out and call the police. They went outside where a Mr. King took them to a neighboring house.

Movant's daughter Pamela also testified at the trial. After being put in the bedroom she heard things falling, the screen door open and shut and screams. She also heard popping noises. She heard her father say "I'm going to burn you." They ran to the living room window from which they saw her mother burning. Her father was standing there "mad looking." Her father ran to the back. Then he came in and told the children to get out and call the police. The children met a man on the street who took them to a lady's house.

Corporal Mack Long of the Springfield Police Department was the second officer on the scene. He arrived at approximately 5:00 p.m. Among his other activities, he took a statement from Pamela Thomas. He recorded that statement in his report. That portion of his report read as follows:

Pamela stated that she and the other children heard her mother screaming and crying, and heard some banging noises, and something--possibly, may have sounded like a gun going off, or she wasn't sure. She stated that they looked out the front window, and then their mother come [sic] running--come running up the driveway to the front yard, and she was tackled in the front yard by her father. And her mother was burning, and was engulfed in fire, and that her father was attempting to extinguish the fire by putting it out with a rug.

The statements by the movant's wife are noted in detail in State v. Thomas, supra. Here it is sufficient to observe that at the scene she said that the movant had poured gasoline on her and set her on fire. At the hospital, in a formal classic dying declaration she repeated this statement.

As amended, movant's 27.26 motion alleged seven grounds for relief. By its findings of fact and conclusions of law, the motion court considered each allegation. It concluded the motion did not state facts entitling the movant to relief. As stated, on appeal the movant contends he was entitled to an evidentiary hearing upon four allegations of constitutionally ineffective assistance of counsel. None of those allegations plead an unreasonable dereliction of counsel from which prejudice is "presumed". See Presley v. State, 750 S.W.2d 602 (Mo.App.1988). The sufficiency of each of those allegations is to be measured by the following underlying basic standards.

"In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced." Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Prejudice is established when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). An applicable subsidiary rule has been stated in the following terms. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.

"To be entitled to an evidentiary hearing on a Rule 27.26 motion, the movant must allege facts, not conclusions, which, if true, would warrant relief; the allegations of fact must not be refuted by record; and the matters complained of must have resulted in prejudice to the movant's defense." Anderson v. State, 747 S.W.2d 281, 283 (Mo.App.1988). This controlling maxim is to some extent contradictory in terms in respect to the allegation and determination of ineffective assistance of counsel. Such a determination involves a conclusion counsel's actions did not measure up to the "customary skill and diligence of a reasonable attorney" and a conclusion the movant was prejudiced. Lewis v. United States, 585 F.2d 915 (8th Cir.1988); Sanders v. State, supra. Those are conclusions to be drawn by the court. Richardson v. State, 719 S.W.2d 912 (Mo.App.1986). To be entitled to an evidentiary hearing, the movant must plead facts which will support those conclusions. Cook v. State, 752 S.W.2d 483 (Mo.App.1988).

Moreover, even though the facts pleaded, standing alone, are not refuted and state a basis for reaching such conclusions, an evidentiary hearing may not be required if the record, considered as a whole, refutes or defeats either of those conclusions. Frederick v. State, 754 S.W.2d 934 (Mo.App.1988); Rainbolt v. State, 743 S.W.2d 890 (Mo.App.1988); Laws v. State, 708 S.W.2d 182 (Mo.App.1986); Wickman v. State, 693 S.W.2d 862 (Mo.App.1985). This limitation finds frequent application in a determination that a factual allegation of dereliction of counsel cannot support a finding of prejudice because of the strength of the state's case in the underlying criminal trial. Frederick v. State, supra; Cook v. State, supra. "The record reveals the state made an extremely strong case, and it appears to us that had counsel been deficient, defendant would not have been prejudiced." McLaurin v. State, 755 S.W.2d 341, 343 (Mo.App.1988).

Also, as noted, a strategic decision does not establish constitutionally ineffective assistance of counsel. Sanders v. State, supra. It is seldom that the face of a motion will establish that an alleged dereliction of counsel was a part of trial strategy. Cf. Ross v. State, 629 S.W.2d 572 (Mo.App.1981). However, the record, considered as a...

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