Garrett v. State

814 S.W.2d 325, 1991 Mo. App. LEXIS 1335, 1991 WL 163647
CourtMissouri Court of Appeals
DecidedAugust 28, 1991
DocketNo. 17107
StatusPublished
Cited by6 cases

This text of 814 S.W.2d 325 (Garrett v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garrett v. State, 814 S.W.2d 325, 1991 Mo. App. LEXIS 1335, 1991 WL 163647 (Mo. Ct. App. 1991).

Opinion

CROW, Judge.

Arvin J. Garrett (“movant”) appeals from a judgment denying relief in a proceeding by him under former Rule 27.261 to vacate his conviction, per jury trial, of murder in the first degree. The conviction was affirmed on direct appeal. State v. Garrett, 595 S.W.2d 422 (Mo.App.1980).

In the instant proceeding, the circuit court (henceforth referred to as “the motion court”) conducted an evidentiary hearing at which movant appeared in person and with counsel. Thereafter, with commendable diligence, the motion court made comprehensive findings of fact and conclusions of law.

In this appeal, movant presents three points relied on. Our opinion in the direct appeal provides a factual preface to our discussion of them.

Movant’s first point:

“The motion court clearly erred in denying [movant’s] Rule 27.26 motion because the record clearly shows that [mov-ant] was denied the effective assistance of counsel ... in that [movant’s] trial counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under the same or similar circumstances, by failing to request a pretrial mental examination of [movant] when counsel knew that [movant] was taking prescription drugs for psychological problems prior to the trial.”

The motion court’s findings included this:

“Movant claims that his trial counsel was ineffective for failing to file a pretrial motion for a mental examination. Movant alleges that at the time of his confessions he was under the influence of ‘psychological’ drugs and was suffering from a mental defect. Movant apparently claims that the drugs and mental defect were such as to make his confessions involuntary. Trial counsel testified at the evidentiary hearing that there was nothing to suggest to him that there was anything wrong with movant’s mental condition. The only evidence offered to the contrary was movant’s own testimony which this Court finds to be unworthy of belief. In the absence of any suggestion of a mental problem, counsel cannot be held to have been ineffective in failing to request the mental examination. O’Neal v. State, 724 S.W.2d 302, 306 (Mo.App., S.D.1987). In addition, movant failed to establish that'he was prejudiced by trial counsel’s failure to request the mental examination. Movant did not present any evidence at the evi-dentiary hearing to show that a mental exam would have provided anything helpful to him. Id. at 306. This ground is denied.”

Our review is limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 27.26(j); Mallett v. State, 769 S.W.2d 77, 79[1] (Mo. banc 1989), [327]*327cert. denied, 494 U.S. 1009, 110 S.Ct. 1308, 108 L.Ed.2d 484 (1990).

To prevail on a claim of ineffective assistance of counsel, a prisoner seeking post-conviction relief must show (1) his lawyer failed to exercise the customary skill and diligence that a reasonably competent lawyer would have exercised under similar circumstances, and (2) the prisoner was thereby prejudiced. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). The prisoner must satisfy both elements; if he fails to satisfy one, the court need not consider the other. Id.

In the argument under his first point, movant asserts he was prejudiced because his lawyer failed to move for a pretrial mental examination. However, movant supplies no clue as to what the prejudice was.

At the evidentiary hearing in the motion court, movant testified he was taking Mel-laril and Thorazine “at the time that all this was going on.”

On October 10, 1978, at a pretrial hearing on a motion to suppress, movant testified he began taking Thorazine in January, 1978, in the penitentiary.2 Movant avowed he was taking Mellaril at the time he wrote the letter of April 29, 1978, to the prosecutor (described in 595 S.W.2d at 426).

The murder that is the subject of this proceeding occurred late on February 19, 1977, or in the early morning hours of the next day. Movant directs us to no evidence indicating he was taking Mellaril or Thorazine at that time or that he suffered from any mental infirmity at that time.3 Consequently, there is nothing in the record suggesting a mental examination would have supplied a basis for a defense of not guilty by reason of mental disease or defect excluding responsibility.

The record is likewise bare of any indication that a mental examination would have supplied a basis for suppressing movant’s incriminatory statements. In 595 S.W.2d at 426-28, we discussed movant’s contention that the medication rendered his incriminatory statements involuntary. Rejecting that argument, we noted movant’s own testimony was, “I knew exactly what I was doing” at the time of the April 29, 1978, letter. Id. at 428.

Finally, the record amply refutes any contention movant was unable to understand the proceedings against him or assist his lawyer in his defense. At the evidentia-ry hearing in the motion court, the lawyer who represented movant at trial testified he (the lawyer) had no problems with mov-ant in preparing the case. Counsel explained, “He was competent, he was able to assist me, and ably assisted me in his defense at all times....” Counsel recalled movant was asked in every court hearing whether he was under the influence of drugs. According to counsel, movant always responded, “No.” On cross-examination, counsel testified: “He was ably participating in his defense with me. I was having no problem communicating with him or having him help me prepare a defense.”

The motion court, as we have seen, found movant’s testimony about his mental condition and the effect of the medication unworthy of belief. In this 27.26 proceeding, credibility of the witnesses was a matter for the motion court’s determination; the motion court was not required to believe movant’s testimony, even had there been no evidence to the contrary. Johnson v. State, 774 S.W.2d 862, 863[6] (Mo.App.1989); Thomas v. State, 759 S.W.2d 622, 623[2] (Mo.App.1988); Leigh v. State, 673 S.W.2d 788, 790[3 and 4] (Mo.App.1984).

[328]*328O’Neal v. State, 724 S.W.2d 302 (Mo.App.1987), cited by the motion court in its findings, supra, holds that when, in a Rule 27.26 proceeding, a prisoner challenges his lawyer’s failure to move for a mental examination, the prisoner must show the existence of a factual basis indicating his mental condition was questionable, which should have caused the lawyer to initiate an independent investigation of the prisoner’s mental state. Id. at 305[4].

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Cite This Page — Counsel Stack

Bluebook (online)
814 S.W.2d 325, 1991 Mo. App. LEXIS 1335, 1991 WL 163647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-state-moctapp-1991.