Trimble v. State

• Decision Date: 21 May 1985
• Docket Number: No. WD,WD
• Citation: 693 S.W.2d 267
• Parties: Patrick E. TRIMBLE, Appellant, v. STATE of Missouri, Respondent. 35408.
• Court: Missouri Court of Appeals

Page 267

693 S.W.2d 267

Patrick E. TRIMBLE, Appellant, v. STATE of Missouri, Respondent.

No. WD 35408.

Missouri Court of Appeals Western District.

May 21, 1985.

Motion for Rehearing and/or Transfer

to Supreme Court Overruled and

Denied July 2, 1985.

Application to Transfer

Denied Aug. 7, 1985.

James W. Fletcher, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and DIXON and SHANGLER, JJ.

DIXON, Judge.

Movant's counsel has filed an appeal from the denial of a Rule 27.26 motion. Movant was convicted of capital murder, and the jury imposed the death sentence. The conviction and sentence were affirmed on direct appeal by the Supreme Court. State v. Trimble, 638 S.W.2d 726 (Mo. banc 1982), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1031 (1983).

The trial court's order denying the Rule 27.26 motion is reversed because defense counsel was ineffective, and the cause is remanded with directions to vacate the judgment of conviction and to order a new trial.

A full statement of the facts may be found in the report of the direct appeal. In brief, movant was convicted of strangling a fellow inmate in the St. Charles County Jail. The crucial proof of the state's case came from fellow inmates. Movant contended the victim hanged himself, and a suicide note written by victim--the state contends under compulsion of movant--was in evidence. The court refused to permit argument or evidence at the punishment stage of the trial. Other facts will be stated as they bear on the issues.

It is not possible to list, with any degree of precision, the spate of issues presented on this appeal. Twenty-two points are presented. Fourteen relate to the sentencing process and eight relate to the determination of guilt. The issues will be treated under two major headings: claims of error in the findings of guilt and claims of sentencing error.

Claims of Error in the Findings of Guilt

Movant's conviction and sentence must be vacated and a new trial ordered because of the ineffectiveness of counsel arising from an incident which occurred during the trial. The victim's mother was observed paying some money to two witnesses for the state after they had testified. In order to assess the impact of this event and its relation to the present claim of ineffective assistance of counsel in connection with the incident, further background facts are required.

The victim's death by strangulation occurred while the victim, movant, and six other individuals were confined in a county jail. The only witnesses to the actual event were movant and the other inmates. Among these witnesses were Kenneth Schwab and James Leech, who are the individuals involved in the present incident. It was the state's theory, supported by the evidence of the fellow inmates, that movant strangled the victim with a towel to keep him from telling the authorities of movant's physical and sexual abuse of the victim. Schwab testified that movant told him of the plan to kill the victim, and both Schwab and Leech furnished evidence of the victim's actual abuse and killing. Before the victim's death, he had written a suicide note. The state theorized, and evidence supported the position, that movant forced the victim to write the note. Movant's defense, supported by his testimony, was that the victim had committed suicide. When the guards arrived on the scene, movant and another inmate, Tate, were in a cell with the victim, and movant was removing a towel from the victim's neck. The medical examiner, who performed an autopsy, was unable to say whether the victim had been hanged or strangled. Two other medical witnesses gave opinions, based on the record, that the victim was strangled. The issue of movant's guilt thus turns on the credibility of the state's inmate witnesses.

Turning now to the incident at trial, the first reference to the event was in the Rule 27.26 proceeding. Movant's grandmother and mother testified they were in the hallway outside the courtroom during a recess and observed the victim's mother give some money described as "bills" to Schwab, one of two of the state's witnesses who were seated with her. The victim's mother said, according to these witnesses, "You did a fine job. You all did well.... go out and have a good time and don't get in any trouble." Movant's mother and grandmother then approached Ron Schmitz, the investigator for the public defender, who was standing nearby. Schmitz exclaimed, "I saw that" and left to tell movant's trial counsel of the incident.

Schmitz did not testify in the Rule 27.26 hearing, but his version of the event was before the court in the following fashion. The hearing on the Rule 27.26 motion was in late September, 1983. Schmitz had been properly subpoenaed and tendered the necessary witness fees, but did not appear. When Schmitz failed to appear, the following colloquy between the court and counsel occurred:

THE COURT: Excuse me just a minute. I want to get the record straight on this. You have two witnesses, Mr. Schwab and Mr. Schmitz, that you have subpoenaed, or attempted to subpoena. The returns would indicate that you have subpoenaed them. You have indicated to me, Mr. Gardner, that you are willing to pursue the alternative of having Mr. Ross testify as to what his conversation with those people would be, rather than to have those witnesses here present. Is that correct?

MR. GARDNER: Yes. I am willing to pursue that opportunity for these reasons, Your Honor: It's my understanding that Mr. Schwab has two capias warrants out for him, non-appearance on criminal charges. That being the situation, the St. Charles County Sheriff not having found him, I doubt whether a writ of attachment would even find him. The other reason I would choose to do it this way is it would be--dispose of the case today. We are under some time restraints, and I think Mr. Ross is a trustworthy witness.

THE COURT: How about the other witness, Mr. Schmitz?

MR. GARDNER: Mr. Schmitz is subpoenaed too. I do have reason to believe that he could be found, but we might as well do it this way for the same reasons. Mr. Ross is trustworthy. His testimony would elicit what I would elicit from Mr. Schmitz himself, and we are under the time restraints under order of the Supreme Court. So I would choose to do it this way, if it's permissible with the Court.

THE COURT: Court will allow you to proceed in that fashion.

MR. GARDNER: All right.

MR. DALTON: State would like to make a standing objection to the testimony based on the hearsay of the witness.

THE COURT: All right.

(Emphasis added).

Ross, the investigator for the Public Defender's Office, then testified to a conversation with Schmitz, in which Schmitz confirmed that he had seen the victim's mother give the state's witnesses, Schwab and Leech, some money during a recess. Schmitz further told Ross that movant's trial counsel was immediately informed of the incident and more or less passed it off and did nothing. Movant also testified that he was present when Schmitz related the event concerning the payment of money to the state's witnesses to Palumbo, movant's trial counsel.

During the trial, evidence had been developed that the victim's parents were possessed of some considerable property. The father had appeared at the early stages of the proceeding with more than the $1,000 necessary to make the victim's bond. At the 27.26 hearing, the mother was shown to have contributed $500 to the election campaign of the sheriff of St. Charles County although the victim's parents lived in Tennessee.

The trial record is barren of evidence of any action of any kind by trial counsel.

Movant posits that the incident and the comment by the victim's mother, taken at face value, show the witnesses' testimony was "purchased." Movant asserts that this should invalidate the conviction and that counsel was ineffective for failing to raise the issue. The state counters by arguing that movant failed to prove that the payment was for testimony or that the witnesses even knew when they testified that the money would be forthcoming.

The state also challenges the proof, asserting that only hearsay supports a finding that trial counsel knew of the incident. In this assertion, the state errs in two respects. There is direct proof from movant that trial counsel was informed. Moreover, the hearing judge, acting under the stated compulsion of an order from the Supreme Court as to the need for the proceedings' termination, offered movant the right to present the matter by hearsay testimony. There can be no doubt that movant would have been entitled to a recess and an attachment for the witness, and his compliance with the hearing court's offer cannot be relied upon by the state to attack the proof offered. The hearing judge did not rule the issue upon a lack of proof or credibility, and there was no ruling on the state's hearsay objection to the evidence. The statements, in the context of this case, are not hearsay.

McCormick has defined hearsay as "testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." C. McCormick, Evidence 2d Ed. Section 246 (1972). Although some courts have called it an exception to the hearsay rule, State v. Ashley, 616 S.W.2d 556, 561 (Mo.App.1981); State v. Houston, 607 S.W.2d 183, 185 (Mo.App.1980); State v. Green, 575 S.W.2d 211, 212 (Mo.App.1978), it seems clear that "[a]n out-of-court statement is hearsay only if offered to prove the truth of the matters asserted therein." State v. Fuhr, 660 S.W.2d 443, 447 (Mo.App.1983); State v. Evans, 637 S.W.2d 62, 66 (Mo.App.1982); State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981); State v. Giannini...