Williams v. State

• Decision Date: 15 April 1986
• Docket Number: No. WD,WD
• Citation: 712 S.W.2d 404
• Parties: Doyle J. WILLIAMS, Movant-Appellant, v. STATE of Missouri, Respondent. 37756.
• Court: Missouri Court of Appeals

Page 404

712 S.W.2d 404

Doyle J. WILLIAMS, Movant-Appellant, v. STATE of Missouri, Respondent.

No. WD 37756.

Missouri Court of Appeals,

Western District.

April 15, 1986.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 22, 1986.

Application to Transfer Denied

July 15, 1986.

Doyle J. Williams, pro se.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Before LOWENSTEIN, P.J., and TURNAGE and BERREY, JJ.

TURNAGE, Judge.

Doyle J. Williams ¹ appeals the denial of his motion under Rule 27.26 to vacate the judgment and sentence of death entered upon his conviction for capital murder.

Williams complains principally of ineffective assistance of counsel. Affirmed.

Williams was charged with capital murder in Callaway County but the trial was moved to Clay County on a change of venue. Williams was convicted of the murder of Kerry Brummett. The killing of Brummett was an effort by Williams to cover up the burglary of a physician's office in Auxvasse and the theft of prescription pads. Williams was also convicted in a separate trial of the murder of Dr. Domann, the doctor whose office was burglarized.

The evidence in the Brummett trial revealed that Williams and John Morgan enlisted Betty Coleman, one of Williams' girl friends, to meet Brummett in Jefferson City for a date. The plan was for Coleman to drive Brummett to a deserted area near the Missouri River in Callaway County where Williams and Morgan would be lying in wait. The plan proceeded on schedule and when Coleman delivered Brummett to the location, Morgan and Williams assaulted him and a pair of handcuffs was placed on Brummett. Williams had obtained the handcuffs from a friend who was on the Auxvasse police force. Brummett wound up in the Missouri River and his body was recovered seven days later.

The judgment and sentence of death was affirmed in State v. Williams, 652 S.W.2d 102 (Mo. banc 1983).

The 27.26 motion was filed in Clay County and Williams disqualified the judge who presided at the murder trial and the cause was assigned to another judge. After a number of hearings the court entered detailed findings of fact and conclusions of law.

The evidence revealed that Williams was represented at the murder trial by Thomas Marshall public defender in Callaway County. Marshall entered the case prior to the preliminary hearing in March of 1981. Marshall had been an attorney since 1968, had served as prosecuting attorney in Randolph County for two terms, and had tried hundreds of cases. The family of Williams hired Charles G. Hyler to represent Williams. Hyler agreed to enter the case on the condition that Marshall remain on the case and Marshall did so. Hyler was retained in August of 1981, before the trial started on September 14, 1981. Hyler was admitted to practice in 1959 and had been a prosecuting attorney for eight years in St. Francois County. He testified that he spent about twenty-five per cent of his time handling criminal cases. Marshall hired an investigator to work on the case and Marshall indicated that after his appointment and throughout the trial he had spent the majority of his time working on this case. There was evidence from Marshall that the attorneys had spent literally hundreds of hours preparing for trial.

Both attorneys testified that a principal difficulty in preparing Williams' defense was the fact that Williams could not account for his activities on the night of October 9 and early morning of October 10, 1980, when the murder of Brummett occurred. When the state filed a motion for discovery seeking to determine if Williams was relying on an alibi defense, Williams gave his attorneys five possible alibis. It was not until virtually the day of trial that Williams finally said his alibi would be that he was in bed with his girl friend Nina Potts.

Williams testified in this case to his complaints against the attorneys. Williams testified that he is a college graduate and works in the law library in the penitentiary.

Williams concedes that counsel requested a first degree murder instruction which was refused but contends counsel failed to raise the refusal of this instruction as a violation of his federal constitutional rights. The court in Williams, 652 S.W.2d at 112, held that the trial court correctly refused to give a first degree murder instruction and relied on State v. Baker, 636 S.W.2d 902 (Mo. banc 1982) cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983), for its holding. In Baker, the court held that second degree murder is the correct lesser included offense to be instructed upon in a capital murder case to vindicate federal constitutional rights. 636 S.W.2d at 905. The court in Williams' trial did give a second degree murder instruction.

Williams next contends that the court failed to give an instruction on second degree felony murder even though it gave an instruction on second degree murder. As will be noted, Williams raises instructional error in several points. Claims of error in instructions cannot be raised in 27.26 proceedings. Brager v. State, 625 S.W.2d 892, 895[8, 9] (Mo.App.1981). This court will exercise its discretion to examine these contentions. The claim that the court should have given a second degree felony murder instruction lacks any substance because second degree felony murder is not a separate and substantive offense. State v. Clark, 652 S.W.2d 123, 128 (Mo. banc 1983). The court in Clark again stated that the proper lesser degree offense to be submitted in a capital case is second degree murder.

Williams contends that counsel should have offered an instruction patterned after MAI-CR2d 3.60 to limit the effect of the evidence concerning the theft of the prescription pads, attempts to obtain drugs with forged prescriptions and the murder of Dr. Domann. Such instruction would have advised the jury that they could consider such evidence on the issues of motive and intent, absence of mistake or accident, presence of a common scheme or plan and for the purpose of deciding the believability of Williams' own testimony. The instruction could also have told the jury it could not consider such evidence for any other purpose. Evidence was introduced concerning the theft of the prescription pads, the forgery of prescriptions and the killing of Dr. Domann. The receipt of this evidence was approved in Williams, 652 S.W.2d at 110. Marshall testified that he was the attorney primarily concerned with instructions and he considered offering MAI-CR2d 3.60 but decided against doing so because in his experience that instruction would only highlight and reinforce the evidence of other crimes in the minds of the jury. The court in Love v. State, 670 S.W.2d 499, 502[2-4] (Mo. banc 1984), held that "[a]n objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel." Marshall had an objectively reasonable choice whether or not to offer the instruction and decided the consequences outweighed the benefits. This was certainly a reasonable choice and cannot supply the basis for a finding that he was ineffective on this ground. Williams contends that Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), mandates that such instruction be offered. Spencer does not require that the instruction be given.

As will be developed more fully hereafter, the key witness against Williams was John Morgan who assisted Williams in the killing of Brummett. Williams contends that Morgan was a drug addict and that counsel should have offered a cautionary and guiding instruction concerning the testimony of an admitted drug addict. It is well settled that MAI-CR2d 2.01 contains the only instruction on the weight and value of the evidence and the believability of witnesses. Notes On Use following that instruction state that except as may be specifically provided, no other or additional instruction may be given on the believability of witnesses, or the effect, weight or value of their testimony. Thus, a separate instruction relative to the believability and weight of Morgan's testimony was not available. State v. Lang, 515 S.W.2d 507, 510-11 (Mo.1974).

Williams contends counsel failed to properly investigate and locate witnesses favorable to the defense because they failed to locate and produce Larry Pirner at trial. Pirner testified at the hearing on this motion that he was the night manager of the Mark Twain Restaurant in Jefferson City where Coleman met Brummett prior to taking him to Callaway County. Pirner said that he saw Brummett in the restaurant on the night of October 9 with a woman who was not Betty Coleman. Pirner said that he left the restaurant and the State of Missouri in February of 1981, and did not return to Missouri until he was extradited on a criminal charge in September of 1981. The evidence revealed that Marshall's investigator had gone to the restaurant and interviewed a number of persons. He was told that Pirner had left and no one knew how to contact him. The court on this motion found that the investigator had gone to the restaurant and located two waitresses who said that Brummett had been in the restaurant on the fatal night with Betty Coleman. The court also found that Pirner had left Missouri and did not return until extradited.

Under these circumstances it cannot be said that there was a failure to adequately investigate to locate Pirner. By Pirner's own admission, he was in California from February until September of 1981 and it is undisputed that other employees at the restaurant did not know where he had gone or how to reach him.

Williams contends that Hyler did not properly question Roger Hazlett concerning his knowledge of events which occurred in the early morning of October 10. At the murder trial there was evidence Williams and Morgan went to the Hazlett home in the early morning of October 10 and burned their bloody clothing in the...