White v. State

• Decision Date: 25 February 1997
• Docket Number: No. 78459,78459
• Citation: 939 S.W.2d 887
• Parties: Leamon WHITE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 887

939 S.W.2d 887

Leamon WHITE, Appellant, v. STATE of Missouri, Respondent.

No. 78459.

Supreme Court of Missouri En Banc.

Feb. 25, 1997.

Rehearing Denied March 25, 1997.

Melinda K. Pendergraft, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Cassandra K. Dolgin, Assistant Attorney General, Jefferson City, for respondent.

HOLSTEIN, Chief Justice.

Leamon White was convicted of first degree murder and sentenced to death. This is an appeal from a judgment denying relief pursuant to a motion to vacate judgment and sentence under Rule 29.15. White's primary contention is that his trial attorneys were ineffective in their investigation and presentation of witnesses, conduct of voir dire, sentencing phase strategy, and that they sought to undermine his chances for post-conviction relief in order to insulate themselves from criticism for their deficient performance. Without holding an evidentiary hearing, the circuit court overruled White's Rule 29.15 motion. We find that none of the numerous allegations made by White in his motion for post-conviction relief require an evidentiary hearing. The judgment of the circuit court is affirmed.

I.

White's Rule 29.15 motion has been before this Court on two prior occasions. In the first appeal, State v. White, 813 S.W.2d 862 (Mo. banc 1991), cert. denied, 502 U.S. 1103, 112 S.Ct. 1193, 117 L.Ed.2d 434 (1992), the facts were set out at length. To summarize, in January 1987, three men entered the home of Don Wright and Carol Kinney, purportedly to buy crack cocaine. Instead, the men tied up Wright, Kinney and her children, Deonta and Raymond, and Earnest Black, a guest in the home. The men beat Mr. Black and Mr. Wright, interrogating them about where to find drugs. Then the men slit Mr. Wright's and Ms. Kinney's throats and left the house, after turning on the gas stove and blowing out the pilot lights. As a result of the savage attack, Don Wright died of strangulation and asphyxiation. The children, who were in bed in a nearby bedroom during the attack, were later able to free themselves and call police. At trial, Ms. Kinney and Mr. Black identified Leamon White as one of the attackers. White was convicted of first degree murder and sentenced to death. On appeal, this Court affirmed the conviction and sentence.

In that opinion, the Court described the circumstances surrounding the filing of White's various motions for post-conviction relief. In August 1989, White filed a pro se motion under Rule 29.15, but failed to have it notarized, apparently because no notary was available to him in prison. The motion court appointed counsel, who later requested an extension of time to file an amended motion. About two weeks before the extension expired, the first attorney withdrew, and another was appointed. Several days after the extended filing period had expired, the newly appointed attorney filed a first amended motion and an application for a further extension of time. That extension was granted, and a second amended motion was filed. The motion court issued a judgment, which included findings of fact and conclusions of law denying relief without an evidentiary hearing on August 1, 1990. Without addressing the motion court's substantive judgment, this Court remanded for findings on whether White had been abandoned by post-conviction counsel.

On remand, the circuit court dismissed the Rule 29.15 motion as not properly verified. In the alternative, the court determined that White was not abandoned by post-conviction counsel and reinstated the original findings and conclusions overruling the motion on the merits. White again appealed the judgment.

In the second appeal, State v. White, 873 S.W.2d 590 (Mo. banc 1994), this Court ruled that White's signature was sufficient verification for the pro se Rule 29.15 motion. However, the Court found both amended motions to be untimely because the motion court lacked jurisdiction to grant more than the prescribed thirty-day extension. But this Court reinstated the first amended motion because it concluded that trial counsel's failure to file a timely amended motion constituted abandonment. The Court, however, refused to reinstate the second amended motion, holding that White only had the right to one amended Rule 29.15 motion drafted by counsel. The Court also found that the motion court had failed to address all claims set forth in the pro se and first amended motions. Accordingly, the Court remanded for findings of fact and conclusions of law addressing all claims in the pro se and first amended motions.

On remand, the motion court found that the issues raised in the first amended motion had been addressed in the first judgment on August 1, 1990, and entered new findings of fact and conclusions of law on the claims made in the pro se motion, denying all relief without an evidentiary hearing.

This Court now considers only the motion court's rulings on the allegations contained in White's pro se and first amended Rule 29.15 motions. Review of the rulings is limited to determining whether they are clearly erroneous. Rule 29.15(j) (1988). Where the trial court makes findings of fact and conclusions of law, a proper result will be affirmed even if one of the conclusions is in error. State v. Bradley, 811 S.W.2d 379, 383 (Mo. banc 1991) (per curiam).

II.

White argues that the trial court erred in refusing to grant an evidentiary hearing on the numerous claims of ineffective assistance of counsel raised in his Rule 29.15 motions. An evidentiary hearing is not required where "the motion and the files and record of the case conclusively show that movant is entitled to no relief[.]" Rule 29.15(g) (1988).

A Rule 29.15 motion is subject to requirements of timely filing and limitations on amendments. Rule 29.15(b)(f) (1988). Moreover, such motion must be substantially in the form provided by Form 40. Rule 29.15(b) (1988). Paragraph 8 of Form 40 requires a movant to state "concisely all the grounds known to you for vacating, setting aside or correcting your conviction and sentence." Paragraph 9 of Form 40 requires a concise statement of "the facts which support each of the grounds set out in (8), and the names and addresses of the witnesses or other evidence upon which you intend to rely[.]" Once counsel is appointed, "[i]f the motion does not assert sufficient facts ... counsel shall file an amended motion which sufficiently alleges the additional facts and grounds." Rule 29.15(e). The redundant requirement to plead facts makes clear that a Rule 29.15 motion is no ordinary pleading where missing factual allegations may be inferred from bare conclusions or implied from a prayer for relief.

A Rule 29.15 motion is treated differently than pleadings in other civil cases because it is a collateral attack on a final judgment of a court. While courts are solicitous of post-conviction claims that present a genuine injustice, that policy must be balanced against the policy of bringing finality to the criminal process. Requiring timely pleadings containing reasonably precise factual allegations demonstrating such an injustice is not an undue burden on a Rule 29.15 movant and is necessary in order to bring about finality. See Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978). Without requiring such pleadings, finality is undermined and scarce public resources will be expended to investigate vague and often illusory claims, followed by unwarranted courtroom hearings. For that reason, it has been held that no evidentiary hearing will be required unless the motion meets three requirements: "(1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant." State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993). Thus, to obtain an evidentiary hearing on claims of ineffective assistance of counsel, the movant must allege facts, not refuted by the record, showing (1) that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney, and (2) that he was thereby prejudiced. See Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Because none of White's allegations satisfy this standard his motion was properly overruled without an evidentiary hearing.

A.

White alleges counsel was ineffective in that:

[He] required and compelled movant to take the witness stand ... to condone, verify and/or sanction trial counsels [sic] trial strategy, i.e., what witnesses to call, what questions to ask and what evidense [sic] to marshall [sic] in general. This improper conduct of counsel impermissably [sic] invaded the provence [sic] of the attorney cliant [sic] relationship and exposed movant to cross-examination by the state. Said conduct was prejudicial to movant.

The pleadings purport to allege improper conflict of interest between movant and trial counsel. Inherent in every criminal case is counsel's desire to protect himself from future claims of ineffective assistance of counsel and the defendant's desire to preserve claims of ineffective assistance of counsel in the event of conviction. It is not improper for counsel to take steps to protect his own interest if in doing so, he does not disclose confidences of his client which harm the client's interest. There is no per se rule that prejudice will be presumed when counsel makes a record that has the effect of refuting subsequent claims of ineffective assistance of counsel. As with other matters, a post-conviction pleading asserting ineffective assistance of counsel must allege facts showing what counsel did or said that was improper and facts showing how the movant was prejudiced. Here counsel is faulted for having asked ...