Glass v. State

227 S.W.3d 463, 2007 Mo. LEXIS 118, 2007 WL 1953413
CourtSupreme Court of Missouri
DecidedJuly 6, 2007
DocketSC 87852
StatusPublished
Cited by55 cases

This text of 227 S.W.3d 463 (Glass v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glass v. State, 227 S.W.3d 463, 2007 Mo. LEXIS 118, 2007 WL 1953413 (Mo. 2007).

Opinions

RICHARD B. TEITELMAN, Judge.

Travis Glass was convicted of first-degree murder, section 565.020, RSMo 2000, and was sentenced to death. This Court affirmed the conviction and sentence in State v. Glass, 136 S.W.3d 496 (Mo. banc 2004), cert, denied, 543 U.S. 1058,125 S.Ct. 869, 160 L.Ed.2d 784 (2005). Glass filed a Rule 29.15 motion for post-conviction relief alleging ineffective assistance of trial and appellate counsel. The motion court granted a hearing on all claims except whether Missouri’s lethal injection procedures violated the prohibition against cruel and unusual punishment. The court denied guilt phase relief and granted penalty phase relief. Glass appeals the denial of guilt phase relief. The state appeals the grant of penalty phase relief. This Court has jurisdiction. Mo. Const, art. V, section 10; order of June 16, 1988. The judgment is affirmed.

FACTS

The facts of this case are set forth in detail in State v. Glass, 136 S.W.3d 496 (Mo. banc 2004). In summary, Glass was taken in for questioning for the murder of Steffani Wilkins and he confessed to the crime. DNA material extracted from blood found on Glass’ license plate, jeans [468]*468found in the backseat of Glass’ car, and a hair from the trunk of Glass’ car was consistent with Wilkins’ DNA profile. Glass was convicted of the murder and sentenced to death.

Following his direct appeal, Glass filed a motion for post-conviction relief under Rule 29.15. The motion court granted penalty phase relief on three issues. The court found that trial counsel was ineffective for failing to: (1) object to an improper jury instruction explaining the aggravating circumstance of kidnapping; (2) investigate and present mitigating evidence; and (3) investigate and present expert testimony in mitigation. The motion court denied the claims relating to all guilt phase issues and the remaining penalty phase issues.

ANALYSIS

To prove that counsel was ineffective, a defendant must show that counsel’s performance “did not conform to the degree of skill, care, and diligence of a reasonably competent attorney” and that the defendant was thereby prejudiced. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). This Court presumes that counsel acted professionally in making decisions and that any challenged action was a part of counsel’s sound trial strategy. State v. Tokar, 918 S.W.2d 753, 766, 768 (Mo. banc 1996).

To demonstrate prejudice, a defendant must show that, but for counsel’s poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different. Id. A “defendant need not establish that the attorney’s deficient performance more likely than not altered the outcome in order to establish prejudice....” Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). Rather, the question is whether the deficiency “undermines confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

The motion court’s judgment on these issues is reviewed for clear error. Sams v. State, 980 S.W.2d 294, 296 (Mo. banc 1998). The court’s findings and conclusions will be held to be clearly erroneous only if this Court is left with the definite and firm impression that a mistake has been made. Id.

I. Penalty Phase Relief

1. Failure to Investigate and Present Mitigation Evidence

During the penalty phase, Glass’ trial counsel called ten witnesses to provide mitigation evidence. These witnesses included Glass’ family members, friends, and former employers and co-workers. Glass alleges that trial counsel was ineffective for failing to investigate and present additional testimony from former teachers and other professionals. The motion court agreed, finding that trial “counsel’s failure to investigate and call school officials and prior professionals was deficient and prejudicial since jurors perceive non-family members as more ‘disinterested’ witnesses.”

To prove ineffective assistance for failure to call a witness, the defendant must show that: “(1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness’s testimony would have produced a viable defense.” Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004). Prevailing pro[469]*469fessional standards for capital defense work require counsel to “discover all reasonably available mitigating evidence ...” Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). This includes “medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences.” Id. “Virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances.” Payne v. Tennessee, 501 U.S. 808, 822, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)).

Dr. Scherr — Glass’ Treating Physician

The motion court found counsel ineffective for failing to elicit testimony from Dr. Barry Scherr, M.D. Dr. Scherr admitted Glass to the hospital for bacterial meningitis when Glass was 23 months old. The motion court found counsel’s failure to interview and call Scherr “especially prejudicial” because the trial court had excluded Glass’ medical records. It is not unreasonable to conclude that testimony regarding the long-term effects of meningitis would have provided mitigating evidence of Glass’ impaired mental functioning. The state contends that this information was before the jury through Glass’ aunt. However, as the motion court explained, Glass’ aunt admitted that she was “not a doctor” and “didn’t know” if meningitis had any effect on Glass.

The motion court did not clearly err in determining that counsel was ineffective for fading to elicit Dr. Scherr’s testimony. The failure to call a treating physician who would have testified about Glass’ impaired intellectual functioning can be prejudicial as such evidence can be inherently mitigating and critical to the jury’s assessment of whether to impose the death penalty. Hutchison v. State, 150 S.W.3d 292, 297 (Mo. banc 2004).

Teachers — Impaired Intellectual Functioning

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Cite This Page — Counsel Stack

Bluebook (online)
227 S.W.3d 463, 2007 Mo. LEXIS 118, 2007 WL 1953413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glass-v-state-mo-2007.