McQueen v. State

475 S.W.2d 111, 1971 Mo. LEXIS 826

• Court: Supreme Court of Missouri
• Decided: December 13, 1971
• Docket: 55532
• Status: Published

Opinions

WELBORN, Commissioner.

Appeal from denial, after hearing, of relief under Supreme Court Rule 27.26, V.A.M.R.

Appellant, Roger Lee McQueen, was found guilty of murder in the second degree by a jury in the St. Louis Circuit Court on October 2, 1964, and sentenced to life imprisonment. Upon direct appeal, the conviction was affirmed by this Court. State v. McQueen, Mo.Sup., 399 S.W.2d 3. Because that appeal was submitted without representation by counsel for defendant, the judgment on appeal was set aside. The cause was resubmitted, with counsel representing defendant, and the judgment of the trial court again affirmed. State v. McQueen, 431 S.W.2d 445.

Prior to the second submission of the appeal, a motion to set aside the judgment had been filed under Supreme Court Rule 27.26 in the St. Louis Circuit Court. On September 12, 1969, an evidentiary hearing on the motion was held and the trial court denied relief. This appeal followed.

The ground for relief urged on appeal is that defendant was denied effective assistance of counsel at his trial. The primary basis for the claim is the failure of trial counsel to interview any of the state’s witnesses prior to trial. Buttressing the claim is the charge that trial counsel failed to require a foundation for an out-of-court statement of the accused; failed to move for a mistrial because a witness inferred that defendant had been imprisoned in Jefferson City; and failed to read the instructions before filing a motion for new trial.

As stated on the original appeal in this matter (399 S.W.2d 4): “In presenting its case the State relied upon circumstantial evidence. With meticulous care, it presented a large quantity of detailed facts which complied with the strict requirements of a circumstantial case and from which a jury reasonably could have found, beyond a reasonable doubt, that defendant shot and killed George Francis on October 23, 1963. * * * [T]he defendant subsequently testified and admitted that he shot the deceased on the date heretofore mentioned, but stated that he did so in self-defense after the deceased attacked him.”

The names of forty-one witnesses were endorsed on the indictment. Twenty-five witnesses testified for the state. Four were relatives of the deceased. Four testified to defendant’s presence in the House Springs area around 5 :00 P.M. on October 23, 1963, several hours after the killing. Three were residents of Kentucky who testified about defendant’s apprehension there on October 24. Three testified about the gun found on defendant and used in the shooting. One witness, a resident of Chicago at the time of trial, testified to having spent the night with Francis on October 22. One witness identified hospital records concerning the deceased. A doctor who saw the body and a pathologist testified to cause of death. Two fingerprint men from the St. Louis Police Department identified fingerprints on sunglasses found in deceased’s apartment as those of defendant. A police ballistics expert testified that spent bullets found at the crime came from the weapon found on defendant. The police chemist testified about the analysis of tablets found on defendant. Two police officers testified to investigation at the scene. One officer testified about returning items found on defendant from Kentucky.

At the hearing on the 27.26 motion, trial counsel for defendant admitted that he interviewed none of the witnesses for the state. He stated that as a matter of policy he had “never been one to go out and interview [state’s witnesses] * * *. I never like to go out and interview State’s witnesses.”

On this aspect of the case, the trial court found:

“ * * * In view of the fact that the defendant stated to his counsel that he was present at the scene and that he did actually kill the deceased George Francis, and in view of the fact that there was no eyewitness to the actual killing by defendant of George Cooper Francis, it cannot be said that the defendant was inadequately represented. The mere fact that he failed to interview all the witnesses or any of the witnesses on the indictment does not necessarily mean he was negligent in the preparation of the case. It may well have been that he obtained information from other sources. Counsel stated that he did. There is no reason to disbelieve him.

“The complaint that Mr. Brown failed to interview a single witness endorsed by the State docs not appear to have prevented the defendant from obtaining a fair trial. He testified that he shot George Francis with only the two of them in the room. The issue was one of self-defense.

* * * * * *

“In any event, it is not shown that failure to interview the witnesses endorsed by the State prevented the defendant in this case from having a fair trial. Other points with reference to inadequacy of counsel are disposed of in State v. McQueen [Mo.Sup.], 431 S.W.2d 445. There is no proof that Mr. Brown’s representation of defendant was inadequate. State v. Kern [Mo.Sup.], 447 S.W.2d 571.”

Appellant argues that attorneys “must be required at least to attempt to interview the state’s witnesses where an appointed case is for trial. Failing that, there can be no trial. * * * [We] cannot try a case and have any trial at all unless there has been some search through the witnesses stories for a defense and for weaknesses to be probed by cross-examination.”

Appellant cites several cases in which a failure to investigate by counsel was held to have resulted in inadequate assistance. In Goodwin v. Swenson, W.D.Mo., 287 F.Supp. 166, the defense to a first degree murder charge was insanity. Defense counsel failed to pursue obvious sources of evidence which were available to support such defense. His failure to do so resulted, in effect, in no defense. The court held that in such circumstances defendant had been denied effective assistance of counsel.

In Coles v. Peyton, 4th Cir., 389 F.2d 224, 226 [3], the court stated: “Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial. An omission or failure to abide by these requirements constitutes a denial of effective representation of counsel unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby.” In that case, failure of appointed counsel to investigate the reputation for chastity of a prosecutrix in a rape case, to attempt to identify and interview an alleged male companion of the prosecutrix, to interview a woman who called the police to the scene of the offense when she heard the prosecutrix and defendant arguing, and failure to inform defendant of the necessity of proof of penetration were held to constitute ineffective assistance of counsel. Upon failure of the state to show lack of prejudice, the defendant was held entitled to relief on habeas corpus.

A major shortcoming of defense counsel in that case lay in the failure to make clear to defendant the possible defense of lack of penetration. According to one attorney, defendant had admitted having had intercourse with the prosecutrix, but according to another he had said he was “trying” to have intercourse with her. Here the possibility of defense of lack of penetration clearly existed. Defendant was not advised of the significance of the second version of the event. Defense counsel undertook no investigation of medical report which showed negative reports of slides and swabs for spermatoza and seminal stains.

The situation in Coles was, thus, close to that in Goodwin, a lack of preparation and investigation which would have pointed to a quite plausible defense.

In Cross v. United States, 8th Cir., 392 F.2d 360, defense counsel, at the close of the case, stated: “I did not attempt to develop the case; I did not attempt to interrogate any witnesses or do anything else; * * 392 F.2d 365.

Noting its rule laid down in Cardarella v. United States, 8th Cir., 375 F.2d 222, 230, to the effect that “a charge of inadequate representation can prevail ‘only if it can be said that what was or was not done by the defendant’s attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court’,” the court concluded: “The trial was certainly not a sham or a mockery of justice and in fact was probably, as Judge Young noted, the best tried criminal case of that term.” 392 F.2d 367. However, the court concluded that it could not, in view of Howard’s statement, conclude that his failure to investigate and develop defendant’s case resulted in no prejudice to defendant. The court remanded the case to the trial court with directions to conduct an evidentiary hearing on whether defendant had been denied effective assistance of counsel.

In Cross, the primary failure on the part of defense counsel was in not interviewing and subpoenaing as witnesses two persons mentioned by defendant in support of an alibi defense.

Although these cases dealt with inadequacy of counsel evidenced by lack of investigation of possible defenses, they cannot be taken as laying down a hard and fast rule that appointed counsel must interview state’s witnesses in all cases. Essentially, they hold that investigation must be adequate to permit the proper presentation on behalf of the defendant of available defenses. See People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487, 490[3, 4]; People v. Floyd, 1 Cal.3d 694, 83 Cal.Rptr. 608, 464 P.2d 64.

In this case, the defense was self-defense. The defendant was the only eyewitness available to sustain that defense. Therefore, consultation with the defendant in this case was basically what was required in order to make proper and adequate presentation of the defense.

Appellant’s argument is essentially that examination of the state’s witnesses prior to trial might have permitted a stronger presentation of the defense. In this respect, he is specific in only a totally speculative realm. The defendant testified that when he went to the apartment of the deceased, the deceased advanced upon him, attempting to commit a forcible act of sodomy upon him, threatening him with a long shoe horn. Defendant testified that he saw a gun on the deceased’s dresser and fired at the deceased in self-defense.

The state’s evidence was that the gun had belonged to a woman named Mary. She had carried it for some time under the seat of her auto. She first discovered it was missing after the killing. Mary’s brother was a dentist. A shirt bearing his name was found in the deceased’s apartment. Another shirt bearing the dentist’s name was in defendant’s possession when he was arrested in Kentucky. The dentist testified that his sister took his shirts to the laundry and that they would have been in his car for that reason. Neither the dentist nor his sister knew that the shirts had been taken from the car. However, the gist of the evidence would seem to have been that the gun and shirts had been taken from the car and that defendant was the thief and had the gun in his possession when he went to deceased’s apartment.

According to appellant, whether or not the defendant’s version of the presence of the gun at the apartment was true was vital on the issue of premeditation, an element of murder in the second degree. Appellant argues that a more penetrating cross-examination of the dentist might have cast doubt upon the theory that the shirts and gun had been taken by defendant from the sister’s auto. The dentist and defendant were acquainted. Defendant said the dentist was acquainted with the deceased, but the dentist denied that he was. The deceased was a homosexual and, according to appellant, the court and defense attorney had concluded that the dentist was also. Appellant argues that more pressing cross-examination of the dentist about his homosexual activities and connection with the deceased might have impaired the inference that defendant had stolen the gun from the sister’s auto.

This argument ignores the fact that at the trial defense counsel asked the dentist whether or not he was a homosexual. Objection to the question was sustained. Defense counsel testified at the 27.26 hearing that he knew from defendant of the dentist’s homosexual tendencies and of his acquaintance with the deceased. Therefore, defense counsel had the information which appellant now says could and should have been employed to attack the dentist’s testimony. Further, defense counsel attempted, unsuccessfully, to make use of the information in his cross-examination of the witness. What counsel is now saying in effect is that the subject should have been approached differently in the cross-examination. However, this is a matter of second-guessing, not a proper basis for determining whether a defendant had effective assistance of counsel.

Defense counsel was not particularly pressed on the 27.26 hearing about his failure to investigate the possible relations between the dentist and the deceased and to press the matter. He dismissed the suggestion by saying: “It wouldn’t have much to do with shooting a man in the head.’’ Certainly, this was not a wholly unreasonable view. The defense presentation was adequate to eliminate, in the jury’s mind, the element of deliberation because it did not convict defendant of murder in the first degree. Furthermore, the jury did not find first degree murder under the felony murder submission of homicide in the commission of a robbery. Premeditation might have existed even though the defendant did take the weapon from the dresser in the apartment.

The circumstances of this case do not demonstrate that the trial court’s conclusion that the failure on the part of defense counsel to interview the state’s witnesses did not prevent defendant from having a fair trial and that there was no proof that representation of defendant was inadequate was clearly erroneous.

The other incidents relied upon by appellant as evidencing ineffective assistance of counsel, considered either separately or cumulatively, do not warrant rejection of the trial court’s finding. In one a witness inferred that defendant had been imprisoned in Jefferson City. In objecting to the witness’s statement, defendant’s trial counsel remarked: “I don’t want a mistrial, you know that.” That remark does not indicate that counsel was determined to proceed without regard for the interests of his client. Counsel might well have had in mind some advantage for his client in proceeding with the trial. Furthermore, counsel’s objection effectively limited any further testimony by the witness on the subject. In any event, when defendant took the stand, he revealed all of his prior convictions. Trial counsel, knowing his strategy, could well have felt that there were no real grounds for making an issue of the witness’s unresponsive remarks.

Appellant says that trial counsel should have insisted upon further foundation for testimony by Kentucky police officers to defendant’s denial at the time of arrest of having known or killed the deceased. Trial counsel did make no objection at the time the matter was first opened by the circuit attorney. Inasmuch as the statements came in as part of the state’s case, counsel may well have felt that some advantage might accrue at that time in getting in the defendant’s exculpatory statements. Decisions since the trial of this case have made trial counsel much more aware of the voluntariness issue than at the time of trial here. The lack of objection by counsel here does not demonstrate inadequate assistance. The alleged failure to read the instructions before preparing the motion for new trial was considered and found nonprejudicial in State v. McQueen, supra, 431 S.W.2d 450 [6-10].

Appellant’s Point II on this appeal is: “THE COURT ERRED IN OVERRULING MOVANT’S MOTION UNDER RULE 27.26 FOR THE OTHER REASONS STATED IN MOVANT’S MOTION AND ^FOR THE REASONS HERETOFORE * RAISED, BRIEFED, ARGUED AND DECIDED ADVERSELY TO THE MOVANT.” This point is not briefed in any manner. Other reasons stated by the motion are not considered because this Court reviews only such matters as are properly briefed on appeal. State v. Mintner, Mo.Sup., 429 S.W.2d 762, 764[4], Nor does a request, in 27.26 proceedings, to review matters previously determined place anything before this Court for review. Crawford v. State, Mo.Sup., 436 S.W.2d 632.

Judgment affirmed.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court en Banc.

MORGAN and BARDGETT, JJ„ concur.

FINCH, C. J., concurs in separate concurring opinion filed.

HOLMAN and HENLEY, JJ„ concur and concur in separate concurring opinion of FINCH, C. J. DONNELLY, J., dissents in separate dissenting opinion filed. SEILER, P. J., dissents in separate dissenting opinion filed.