Wilkes v. State, SC 84149.

• Decision Date: 27 August 2002
• Docket Number: No. SC 84149.,SC 84149.
• Citation: 82 S.W.3d 925
• Parties: Edward L. WILKES, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 925

82 S.W.3d 925

Edward L. WILKES, Appellant, v. STATE of Missouri, Respondent.

No. SC 84149.

Supreme Court of Missouri, En Banc.

August 27, 2002.

Jeannie M. Willibey, Asst. Public Defender, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Andrew W. Hassell, Assistant Attorney General, Jefferson City, for Respondent.

TEITELMAN, J.

Edward L. Wilkes (Wilkes) was charged with one count of second degree murder, section 565.021 RSMo (1994),¹ one count of first degree assault, section 565.050, and two counts of armed criminal action, section 571.015, for his involvement in a shooting in Kansas City, Missouri. The first trial resulted in a hung jury. At the second trial, Wilkes was convicted on all counts. The Court of Appeals, Western District, affirmed Wilkes' convictions. Wilkes timely filed a Rule 29.15 motion for post-conviction relief. The motion court denied his motion without an evidentiary hearing. After an opinion by the court of appeals, this Court accepted transfer pursuant to article V, section 10, of the Missouri Constitution.

In Point I, Wilkes alleges that defense counsel was ineffective for failing to introduce the testimony of Russell Howard, an eyewitness to the shooting whose testimony differed from that offered by the state's witnesses. Defense counsel called Mr. Howard to testify at the first trial, but did not introduce Mr. Howard's testimony at the second trial. In Point II, Wilkes alleges that defense counsel was ineffective for failing to object to Amy Fields' testimony that Wilkes returned her car after borrowing it and that she then found bullets in the glove compartment that were similar to those found at the crime scene.

The judgment is reversed and remanded for an evidentiary hearing on the allegations in Point I and affirmed with respect to the allegations in Point II.

I.

The case was brought to trial in December 1997. In relevant part, the evidence was as follows. In late 1995 and early 1996, Wilkes was living in Topeka, Kansas with his girlfriend, Amy Fields. On February 1, 1996, Wilkes borrowed Fields' light blue Ford Escort and told her he was going to Lawrence, Kansas with a friend.

That same day, Gary Singleton and Kenneth Moore were sitting in a car that was parked on 16^th Street, near Bartle Hall in downtown Kansas City, Missouri. Sometime after 10:30 p.m., Singleton noticed a "dusty, sky blue Escort" with two men in it drive by and park on the opposite side of the street, two or three car lengths beyond where he and Moore were parked. Shortly thereafter, Moore asked Singleton to retrieve something from the back seat. While Singleton was in the back seat of the car, two men approached. One of the men began shooting. Moore was killed. Singleton was wounded. Singleton testified that immediately after he was shot, he briefly made eye contact with the shooter through the side window and then "played dead." He eventually looked out the window and saw the two men get into the Escort. The police later showed Singleton a photospread that included Wilkes' picture. He identified Wilkes as the shooter.

Reece Good, a passerby who was leaving Bartle Hall and was within view of 16^th Street at the time of the shooting, testified that approximately thirty or forty seconds after the shooting, he saw two men run down the street, get into a car and leave the scene. He described the car as "possibly" a Ford Escort that was "silver or light blue." However, Good also admitted that the car "could have been dirty ... from the salt on the roads."

In order to rebut the testimony offered by Singleton and Good, defense counsel called Russell Howard to testify. Howard testified that prior the shooting, he saw the two men standing outside a car that was parked on 16^th, Street, talking to the people inside the car. Mr. Howard heard two gunshots. The two men who had been standing outside the car then fled across a parking lot and out of sight. Unlike Singleton and Good, Howard did not see the two men run into the nearby Ford Escort and leave the scene. Howard's testimony supported Wilkes' claim that he was not in Kansas City on the night of the shooting and that Singleton misidentified him. The jury could not reach a unanimous decision.

The second trial began in June 1998. The state presented essentially the same evidence that was presented at the first trial. However, defense counsel did not call Mr. Howard to testify or introduce his testimony from the first trial.² Defense counsel introduced no other evidence. Wilkes was convicted on all counts.

II.

In order to plead a claim for ineffective assistance of counsel, Wilkes must allege facts showing that counsel's performance did not conform to the degree of professional skill and diligence of a reasonably competent attorney and that he was thereby prejudiced. State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997). To demonstrate prejudice, Wilkes must allege facts showing a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S. Ct. 2052.

Wilkes is entitled to an evidentiary hearing if his motion meets three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must not be refuted by the files and records of the case; and (3) the allegations must have resulted in prejudice. Morrow v. State, 21 S.W.3d 819, 823 (Mo. banc 2000). An evidentiary hearing may only be denied when the record conclusively shows that the movant is not entitled to relief. Rule 29.15(h) (emphasis added).

In his first point on appeal, Wilkes argues that the motion court clearly erred in denying without an evidentiary hearing his claim that counsel was ineffective for failing to call Russell Howard as a witness at the second trial.

To warrant a hearing on this claim, Wilkes had to allege: (1) the identity of the witness; (2) what the witness' testimony would have been; (3) that counsel was informed of the witness' existence; (4) whether the witness was available to testify; and (5) that the testimony would have provided the movant with a viable defense. State v. Williams, 945 S.W.2d 575, 582 (Mo.App.1997).

In his amended Rule 29.15 motion, Wilkes summarized Howard's testimony at the first trial. Wilkes alleged that "counsel was aware of Mr. Howard's account of the shooting and knew how to contact him, as counsel had deposed Mr. Howard prior to [Wilkes'] first trial and called him as a witness at [Wilkes'] first trial." He then alleged that Howard's testimony "differed from the version of events told by other witnesses" and "cast doubt on the claims of other witnesses that the shooter got into a vehicle and drove off." Wilkes further alleged that Howard's testimony "very likely contributed to the jurors reasonable doubt as to Movant's guilt" and that because his defense was misidentification, it was "imperative for counsel to call any witnesses who cast doubt on Movant's presence at the crime scene." Finally, Wilkes alleged that counsel's failure to elicit Howard's testimony at the second trial, "where Mr. Howard served as a witness in the first trial and the defense obtained a favorable result ...fell below the level of skill, care and diligence that a reasonably competent attorney would use in similar circumstances."

The motion court denied Wilkes' motion without a hearing on the grounds that: (1) Wilkes claims as to Howard's testimony were "conjecture and speculation;" (2) that Howard's testimony was "cumulative;" and (3) that counsel's decision not to call Howard to testify was a matter of "trial strategy." These findings are clearly erroneous.

The content of Mr. Howard's testimony cannot, in a practical sense, be dismissed as "conjecture and speculation." There is always an element of conjecture or speculation as to what a witness will say. Faded recollections, subtle questioning and, sometimes, outright dishonesty all conspire against precisely forecasting what a witness might say. Howard, a disinterested eyewitness, testified under oath at the first trial and offered a short and simple account of what he saw. He testified that after the shooting, he saw two men run from the victims' vehicle and across a parking lot until he lost sight of them. The record reveals no reason to doubt that Howard would have testified any differently at the second trial. In the event Howard's testimony would have deviated from that offered in the first trial, counsel could have impeached the testimony with his prior, inconsistent testimony. Alternatively, if Howard was in fact unavailable, counsel could have read the testimony into evidence, thus obviating any doubt as to Howard's testimony. Under the circumstances of this case, the content of Howard's testimony is as certain as can be reasonably expected.

The state also...