Lashley v. State

721 S.W.2d 31, 1986 Mo. App. LEXIS 4813
CourtMissouri Court of Appeals
DecidedOctober 14, 1986
DocketNo. 50204
StatusPublished
Cited by5 cases

This text of 721 S.W.2d 31 (Lashley 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
Lashley v. State, 721 S.W.2d 31, 1986 Mo. App. LEXIS 4813 (Mo. Ct. App. 1986).

Opinion

REINHARD, Judge.

Movant appeals from the denial of his Rule 27.26 motion after an evidentiary hearing. We affirm.

Movant was convicted of capital murder after a jury trial and sentenced to death. His conviction was affirmed on direct appeal by the Missouri Supreme Court in State v. Lashley, 667 S.W.2d 712 (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984), which contains a detailed discussion of the murder. Movant subsequently filed a pro se Rule 27.26 motion and counsel was appointed. Counsel then filed an amendment to the 27.26 motion.

Movant asserts on appeal that the court erred in denying his motion to vacate because: (1) the jury was “death qualified”; and (2) counsel was ineffective because they failed to present evidence of movant’s diminished capacity and drugged condition at the time of the homicide during either the guilt phase or penalty phase of mov-ant’s trial.

In order for movant to prevail on his claim that he was denied effective assistance of counsel he must demonstrate that counsel “fail[ed] to exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances and that he was prejudiced thereby.” Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979). Furthermore, “when a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 698 (1984).

After taking judicial notice of the court files, the motion court heard testimony from six witnesses presented by movant, including Kevin Curran, who was one of movant’s attorneys at trial. The court found adversely to movant on all of the issues and grounds alleged in his motion and specifically stated: “After listening to Mr. Curran explain his and Mrs. Liesingr-ing’s reasoning for their decisions of trial strategy this court is convinced that they were not ineffective.”

Our examination of the record leads us to the conclusion that the trial court’s determination was not clearly erroneous. A court-ordered mental examination of movant under Chapter 552 was conducted by Dr. Parwatikar, a psychiatrist employed by the Department of Mental Health, approximately four months after the offense occurred. Dr. Parwatikar reported:

[Movant] seems to be functioning at an average range of intelligence and does not seem to show any clinical signs of organic brain dysfunction. His retention and recall was adequate and memory for recent and remote events was normal. In spite of his admission that he was high on drugs at the time of alleged offense, he was able to recall most of the events quite lucidly
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Intellectually, Mr. Lashley is able to function in the borderline to low average range which is sufficient for him to be able to understand the proceedings against him and to assist his attorney in his own defense.

The report further stated:

Mr. Lashley seems to be able to understand the gravity of the situation, the [33]*33charges pending against him and is capable of discussing various alternatives that are available to him. It is somewhat surprising that in spite of his age he seems to have some knowledge of his rights and lines of defenses.
Mr. Lashley claims that he was high on drugs and had indeed done PCP causing him to be intoxicated, however, he was able to recall all of the events precipitating his stabbing of his cousin and his main theme appears to be that the stabbing had occurred because of an accidental self-defense type maneuver on his part rather than a deliberate knowledgeable act. Although it can be assumed that the drugs and alcohol that he had ingested had something to do with his mentation, there is no objective witness or data which can corroborate his part of the story. If one goes by the available facts as well as his statement to the police, then it can be stated that he knew and appreciated the nature, quality and wrongfulness of the alleged offense and was capable of conforming his conduct to the requirements of law.

Dr. Parwatikar therefore concluded that:

(1) movant did not have a mental disease or defect within the meaning of Chapter 552;

(2) he understood the charges pending against him and was capable of assisting his attorney in his defense; and (3) at the time of the alleged offense he knew and appreciated the nature, quality and wrongfulness of the alleged action and was capable of conforming his conduct to the requirements of law.

Dr. Parwatikar testified at the motion hearing that it was “possible” that mov-ant’s alleged ingestion of drugs would have affected his ability to premeditate; however, Dr. Parwatikar said that it was unlikely that a person under the influence of PCP would have been able to “lay and wait for his intended victim for twenty minutes.” He also indicated that had there been corroboration of movant’s story he would have “looked into it further.”

Mr. Curran testified that he was counsel for movant at movant’s trial for murder and that movant had told him that he had been smoking PCP and drinking that day. Movant mentioned two witnesses to him. Mr. Curran’s investigator talked to one but could not find the other, and the witness the investigator interviewed could not pinpoint the date she had seen movant intoxicated. According to movant, Douglas Anderson, the witness that could not be located, would have testified that he and movant had been drinking and “gotten high” on PCP on the day of the crime. Mr. Curran testified regarding the reasons that a diminished capacity defense was not used, and said that it was a strategy decision:

Primarily it was after having the psyche [mental examination] done I had a conversation with a Dr. Parwatikar in the building. I ran into him I believe a few weeks after the psyche being done and I asked him about presenting a PCP defense, being high on PCP, and Dr. Par-watikar told me that he thought there was not any evidence of that and I could not do it and the reasons I recall he told me were that Frederick had a good recollection of it and I believe also in the psyche it said he had a good recollection of it.
He also said that the way Frederick described the commission of the act and the way it was carried out in the statement of how he described it to him Dr. Parwatikar did not feel it was consistent to him with being high on PCP and that was primarily the reasons we did not go with it.

Mr. Curran further testified that Dr. Par-watikar’s statements to him also dissuaded him from presenting a theory of diminished capacity during the punishment phase of the trial. He and his co-counsel discussed strategy among themselves and with several other attorneys, and Mr. Curran said that movant concurred with the tactical decisions that were formulated.

Demetrius Pate, who was present when movant was arrested, also testified for movant at the 27.26 hearing.

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Bluebook (online)
721 S.W.2d 31, 1986 Mo. App. LEXIS 4813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lashley-v-state-moctapp-1986.