Zink v. State

• Citation: 278 S.W.3d 170
• Decision Date: 24 February 2009
• Docket Number: No. SC 88279.,SC 88279.
• Parties: David ZINK, Appellant, v. STATE of Missouri, Respondent.
• Court: United States State Supreme Court of Missouri

278 S.W.3d 170

David ZINK, Appellant, v. STATE of Missouri, Respondent.

No. SC 88279.

Supreme Court of Missouri, En Banc.

February 24, 2009.

Rehearing Denied March 31, 2009.

William Swift, Office of Public Defender, Columbia, MO, for Appellant.

Chris Koster, Atty. Gen., Andrew W. Hassell, Asst. Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

PATRICIA BRECKENRIDGE, Judge.

David Zink appeals the overruling of his Rule 29.15 motion for post-conviction relief from his conviction of first-degree murder and his sentence of death. Because this case involves the death penalty, this Court has jurisdiction. Mo. Const. art. V, sec. 10. On appeal, Mr. Zink claims that the motion court erred in denying his multiple claims of ineffective assistance of counsel, in signing the attorney general's proposed findings, in violating his constitutional rights in giving penalty instructions, and in failing to find that Mr. Zink did not decide knowingly, intelligently and voluntarily to represent himself. He also challenges the constitutional validity of lethal injection. This Court affirms the motion court's judgment.

I. Factual and Procedural Background

In the early morning hours of July 12, 2001, police responded to the report of a traffic accident near Stafford. On their arrival, they found the victim's car abandoned with the keys in the ignition and the engine running, the headlights and hazard lights on, and the driver's window down. Police found the victim's personal items in the vehicle, including her purse, credit card and medication.

After the evening news broadcast the victim's disappearance, the owner of a motel near Camdenton recognized the victim's picture as the woman who checked into a room with Mr. Zink. The motel owner provided the police with Mr. Zink's motel registration card, and, using this information, the police apprehended Mr. Zink at his home.

After police showed him evidence that placed him near the scene of the abduction, Mr. Zink waived his rights under Miranda v. Arizona,¹ and confessed to killing and burying the victim. He led police straight to the spot in a cemetery where he said he buried the victim's body, and the police discovered the body positioned just as Mr. Zink had described. Pathologists found that the victim's neck was broken, she sustained injuries consistent with strangulation and being tied up, and she had eight broken ribs and between 50 and 100 blunt force injuries. Semen found in the victim's anus matched Mr. Zink's DNA, hair samples taken from Mr. Zink's truck matched the victim's hair, and paint left on the victim's car from the accident matched paint from Mr. Zink's truck.

In two videotaped confessions, Mr. Zink described the murder in detail. He said that he rear-ended the victim's car on an exit ramp. In one confession, Mr. Zink told police that the victim voluntarily left the accident scene with him in his truck but later threatened to call police if he did not return her to her vehicle. In another confession, he said that he gave the victim no choice but to get in his truck, but that she willingly went with him after she was in the truck.

After he drove the victim around in his truck, they stayed for a short time at the motel near Camdenton. Mr. Zink then decided to kill the victim because he was worried he would go back to prison if she called the police. He took her to the cemetery and tied her to a tree. He told her to look-up, and then he broke her neck. He strangled her with his hands, and then with a rope, and stuffed her mouth with mud and leaves. He looked for a spot to bury her and then dragged her body to that spot with the rope. Because he was worried that she might revive, he stated that he stabbed the back of her neck with a knife to cut her spinal cord. He then covered the body with leaves, went home to get a shovel, and came back to the cemetery and covered the body with dirt.

The state charged Mr. Zink with first-degree murder. Mr. Zink waived his right to counsel and asserted a voluntary manslaughter defense at trial, but he also allowed standby counsel from the public defender's office to present a diminished capacity defense. The jury found Mr. Zink guilty of first-degree murder.

Counsel from the public defender's office represented Mr. Zink in the penalty phase. The jury found the presence of three statutory aggravators to support its unanimous recommendation for a death sentence: (1) that Mr. Zink had two prior convictions for aggravated rape; (2) that the murder was committed for the purpose of avoiding a lawful arrest; and (3) that the murder involved depravity of the mind and was outrageously and wantonly vile, horrible and inhuman. The trial court sentenced Mr. Zink to death. On appeal, this Court affirmed. State v. Zink, 181 S.W.3d 66 (Mo. banc 2005).

Mr. Zink subsequently filed a pro se motion for post-conviction relief under Rule 29.15, which Mr. Zink's counsel later amended to present additional claims. The state filed a motion to dismiss certain claims without an evidentiary hearing, which the motion court granted. The motion court then conducted a five-day evidentiary hearing on Mr. Zink's remaining claims. The motion court denied all claims. Mr. Zink now appeals.

II. Standard of Review

In reviewing the overruling of a motion for post-conviction relief, the motion court's findings are presumed correct. Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). A motion court's judgment will be overturned only when either its findings of fact or its conclusions of law are clearly erroneous. Rule 29.15(k); Worthington, 166 S.W.3d at 572. To overturn, the ruling must leave the appellate court with a "definite and firm impression that a mistake has been made." Id.

To be entitled to post-conviction relief for ineffective assistance of counsel, the movant must satisfy a two-prong test. First, the movant must show that his counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would exercise in a similar situation. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, the movant must show that trial counsel's failure prejudiced the defendant. Id. Both of these prongs must be shown by a preponderance of the evidence in order to prove ineffective assistance of counsel. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006).

Mr. Zink must overcome a strong presumption that counsel's conduct was reasonable and effective to meet the first prong of the Strickland test. Id. To overcome this presumption, Mr. Zink must point to "specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Id.

Trial strategy decisions only may serve as a basis for ineffective counsel if they are unreasonable. See id. The choice of one reasonable trial strategy over another is not ineffective assistance. Worthington, 166 S.W.3d at 573. "[S]trategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable." Anderson, 196 S.W.3d at 33 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

To satisfy the prejudice prong of the Strickland test, Mr. Zink must demonstrate that, absent the claimed errors, there is a reasonable probability that the outcome would have been different. Id. at 33-34. Regarding a sentence of death, a defendant must show with reasonable probability that the jury, balancing all of the circumstances, would not have recommended the death penalty. Id. at 34.

III. Issues on Appeal

On appeal of the motion court's denial of post-conviction relief, Mr. Zink asserts multiple points of error, some of which include multiple subpoints. His points are consolidated and reordered here for ease of understanding. He asserts that the motion court erred in denying his claims that trial counsel was ineffective for failing to: (1) obtain a positron emission tomography (PET) scan and present supporting testimony as to the PET scan's relevance; (2) challenge Mr. Zink's competency to stand trial; (3) object to the trial court's ruling that Mr. Zink must wear a shackling device under his clothing throughout the trial; (4) object to certain guilt and penalty phase closing arguments made by the state; (5) object to two individuals serving both as courtroom security and witnesses in the trial; and (6) object to an autopsy report as hearsay evidence in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

In addition to his ineffective assistance of trial counsel claims, Mr. Zink also asserts that: (7) his self-representation was involuntary; (8) the motion court erred by simply signing the attorney general's proposed findings; (9) the penalty instructions given violated his constitutional rights and appellate counsel was ineffective for failing to raise the errors on appeal; and (10) the motion court erroneously denied discovery and a hearing on Missouri's method of lethal injection.

In three separate points, Mr. Zink asserts that the trial court erred in denying him his right to counsel. In those same points, Mr. Zink asserts that trial counsel was ineffective. As claims of trial court error are not cognizable under Rule 29.15 and Rule 29.15 is not a substitute for direct appeal, this Court will not consider Mr. Zink's allegations of trial court error and only will consider his assertions of ineffective assistance of counsel. Tisius v. State, 183 S.W.3d 207, 212 (Mo. banc 2006).²

1. PET scan

Mr. Zink first asserts that the motion court clearly erred in denying his claim that trial counsel provided ineffective assistance of counsel by (1) failing to obtain a PET scan of his brain and (2) failing to call Dr. David Preston to testify to its results. He claims that the PET scan would have revealed to the jury that Mr. Zink has "organic anatomical...