West v. State
| Decision Date | 26 January 2005 |
| Docket Number | No. 25771.,25771. |
| Citation | 159 S.W.3d 847 |
| Parties | James Milborn WEST, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
John William Simon, Clayton, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, for respondent.
James Milborn West ("Movant") pled guilty to the class A felony of assault in the first degree, a violation of section 565.0501; he was sentenced to serve seventeen years in the Missouri Department of Corrections. Movant timely filed a motion pursuant to Rule 24.035.2 The motion was overruled and this appeal follows.
In his first point, Movant contends his plea counsel ("Counsel") denied him effective assistance of counsel by failing to properly prepare the mental health defense of diminished capacity and, because of this failure, Movant was forced to enter a guilty plea. Movant claims he only pled guilty because he was forced to choose between pleading guilty, going to trial without a prepared defense of diminished capacity, or going to trial pro se without the diminished capacity defense. Movant's first point on appeal relies on a foundation of testimony at the evidentiary hearing that Movant suffered from brain damage and related mental retardation which substantially impaired his ability to respond to a stressful situation on the night of the assault and, therefore, he had a diminished capacity defense available to him at trial. During his evidentiary hearing, Movant presented the testimony of a forensic psychiatrist, Dr. Bruce Harry, who concluded, after reviewing a number of Movant's records and conducting his own tests, that Movant suffered from a mental defect that diminished his capacity to act with "awareness." Movant also presented testimony during the hearing of family members who were familiar with the injuries from his previous accidents.
Our review of the denial of a post-conviction motion is limited to a determination of whether the findings of fact and conclusions of law of the motion court are clearly erroneous. Smith v. State, 28 S.W.3d 417, 419 (Mo.App. S.D.2000). The motion court's findings are deemed clearly erroneous if, after a review of the entire record, we are left with a firm and definite impression that a mistake has been made. Id. In order to prevail on his claim under Rule 24.035, Movant has the burden of proving his claim of ineffective assistance of counsel by a preponderance of the evidence. Dillard v. State, 137 S.W.3d 483, 486 (Mo.App. S.D.2004). In the absence of a showing to the contrary, counsel is presumed to have provided effective assistance to Movant. Peet v. State, 22 S.W.3d 792, 794 (Mo.App. S.D.2000). The presumption is that the challenged action was sound trial strategy. Eichelberger v. State, 134 S.W.3d 790, 792 (Mo.App. W.D.2004). Movant's conviction was a result of a guilty plea; his claim of ineffective assistance of counsel is material only if it affects the voluntary and intelligent character of the plea. Risalvato v. State, 856 S.W.2d 370, 373 (Mo.App. W.D.1993).
At the evidentiary hearing, the motion court was presented with the diametrically opposed testimony of Movant and Counsel. Movant claimed that on December 25, 2000, when his wife ("Victim") admitted that she had an affair with two different men, he "went berserk" and, while under the influence of drugs and alcohol, administered numerous kicks and blows to Victim's head and body. Although he stated that he quit when he saw what he had done and that the beating only lasted ten to fifteen minutes, on cross-examination he was evasive about what occurred after the beating. In fact, he was evasive during most of the cross-examination, even concerning whether he had taken an oath to tell the truth at the guilty plea hearing. He also claimed that Counsel told him to lie at that hearing when asked about her job performance.
Movant admitted that he accepted the plea agreement, which called for a seventeen-year sentence, but only because Counsel told him he would probably get thirty years if he went to trial. He now claims that Counsel was actually working for the prosecution. After doing research in the prison library, he was informed in "black and white" of a bonus system in which prosecutors and public defenders work together to receive a bonus for each conviction. When questioned about this system, Movant again lost his memory and became evasive; however, he did state that his law research convinced him that he would have gotten a much shorter sentence had he taken his chances with a jury, who would have been told of a "sudden passion" defense.
On the other hand, Counsel testified at the evidentiary hearing that she did not pursue a diminished capacity defense because Movant insisted, up until the time of the plea, that he did not commit the assault and that some other individual injured Victim. Counsel prepared an alibi defense, which Movant's family supported, because Movant claimed an alibi. In preparation for trial, Counsel interviewed most of the family members, neighbors and the Victim outside the presence of her family. Movant and his family claimed that the charges were all a conspiracy against him and that he was set up by Victim's family in a "Hatfield-McCoy" family dispute. The alibi defense was not entirely implausible in that Victim initially claimed to have been attacked by two women who came to her door and there was a long-standing dispute between the families of Movant and Victim.
Counsel initiated the discussion of mental health issues in letters to Movant early in the case after a discussion with Victim about Movant's previous accidents. She had doubts about Movant's truthfulness concerning his denial of the assault after private discussions with Victim, but told him that his defense was entirely his choice. Counsel testified that she repeatedly discussed possible defenses with Movant, including mental health and sudden passion defenses; in addition, she obtained several continuances from the court to investigate Movant's mental health issues. Counsel emphasized to Movant the difference between mental health issues and a mental health defense. She told him that with a mental health defense he would have to take the stand and even role-played with Movant by asking him questions as if she were the prosecutor. Specifically, she told him that a jury might not accept his defense that he did not commit the crime.
Movant chose to proceed on the theory that he was being framed by Victim's family, who had themselves committed the assault against Victim. Because Movant would not admit to committing the offense, Counsel could not use the mental health defense of diminished capacity. Based upon Movant's decision and his denial of committing the assault, Counsel did not hire a mental health expert nor did she secure further services in that line of defense.
The motion court also found that statements made to the contrary as to Counsel's performance were not credible because Movant admitted that he would lie under oath to "get what he want[ed]." The court noted the banker's box full of documents which Counsel used to prepare a defense for Movant and the pleading listing six alibi witnesses that was filed with the court which supported Counsel's claim that she pursued an alibi defense.
The court further noted that none of the witnesses called by Movant supported Dr. Harry's conclusions that Movant lost the ability to control...
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