Seales v. State

580 S.W.2d 733, 1979 Mo. LEXIS 380

• Court: Supreme Court of Missouri
• Decided: April 25, 1979
• Docket: 60744
• Status: Published

Opinions

BARDGETT, Judge.

The appellant, Solomon Seales, was convicted of first-degree murder by a jury in the circuit court of the city of St. Louis, Missouri, and his punishment was assessed at life imprisonment which was affirmed on appeal by this court. State v. Seals [Seales], 515 S.W.2d 481 (Mo.1974).

On March 5, 1976, appellant filed a motion to vacate under rule 27.26. The trial court appointed counsel for appellant and subsequently the state filed a motion to dismiss appellant’s 27.26 motion. The trial court set the state’s motion to dismiss for argument and attorneys for both parties appeared and argued the motion. The court took the matter under submission and subsequently sustained the state’s motion to dismiss appellant’s 27.26 motion and, therefore, there was no evidentiary hearing on the 27.26 motion. The appellant took his appeal to the Missouri Court of Appeals, Eastern District, where the trial court’s order was affirmed.

This court sustained appellant’s motion to transfer after opinion. The only ground alleged in that motion was that the court of appeals opinion was contrary to this court’s opinion in Wheatley v. State, 559 S.W.2d 526 (Mo.banc 1977), in that the circuit court allegedly, after the filing of movant-appel-lant’s pro se 27.26 motion, then appointed counsel to represent appellant and then dismissed movant’s petition without notice to the attorney or hearing. It could not be discerned from the court of appeals opinion that the facts and sequence of events were anything different from that which was alleged in the motion to transfer, and the state filed no suggestions. As noted, this court transferred the cause here.

Appellant contends, as noted supra, the trial court erred in dismissing appellant’s motion, after appointment of counsel for appellant, allegedly without notice to appellant’s counsel or hearing. It was in this respect that appellant claimed the trial court violated the ruling of Wheatley v. State, supra. The point has no merit. The trial court did precisely what was required by Wheatley in that, after appointing counsel for movant and before dismissing the 27.26 motion by sustaining the state’s motion to dismiss, the trial court afforded movant’s counsel the opportunity to be heard on the matter by giving notice and setting the same for a hearing. The trial court obviously has the duty to rule on a motion to dismiss and has the jurisdiction to either sustain it or overrule it. All Wheat-ley required is that movant’s counsel be given an opportunity to be heard before the trial court dismisses a 27.26 motion for failure to state a claim, and that was done in this instance.

Appellant also contends that the court erred in failing to afford him an evidentiary hearing on his 27.26 motion. This, of course, was accomplished by the sustaining of the state’s motion to dismiss the 27.26 motion. Among the allegations in the movant’s 27.26 motion was the assertion that his trial counsel was ineffective in that he failed to subpoena two named witnesses who appellant says would have testified that he was not the party responsible for the death of Ronald Lane, the deceased. The state argues that this was merely con-clusory and that the record refuted these allegations because movant testified in the criminal cause that he did kill Ronald Lane but that he did it in self-defense and also that there were only two other persons present. We believe the allegations made by the movant in the motion were sufficiently factual in nature to have warranted a hearing on the motion. It may very well be that the state could have required the movant to state the matter with more particularity; however, insofar as the motion to dismiss is concerned, we believe the motion was sufficient to have required the overruling of the motion to dismiss and to hold an evidentiary hearing. The meaning of the allegations may or may not be that the witnesses would allegedly testify that the movant did not kill the deceased; however, the allegations are also subject to the interpretation that the movant would testify to facts from which the jury could find that the movant, although having killed the deceased, was not guilty of first-degree murder and in that sense was not legally responsible. The trial court erred in failing to hold an evidentiary hearing in the matter and for that reason the cause must be reversed and remanded for an evidentiary hearing on movant’s 27.26 motion which may, of course, be amended.

It has come to the attention of the court that the criteria for adjudicating the question as to whether or not a defendant in a criminal case has been deprived of his constitutional right to counsel are expressed differently in holdings of this court and in the decisions of the United States Court of Appeals for the Eighth Circuit (of which Missouri is a part) when that court has decided cases involving state prisoners where the question was alleged ineffective assistance of counsel. Since this case is to be remanded for an evidentiary hearing, we believe it appropriate to take up this matter at this time.

Recently this court has utilized “fair trial” as being the concept which must be violated before a movant proceeding under rule 27.26 can obtain a new criminal trial as a consequence of inadequate assistance of counsel. Sims v. State, 496 S.W.2d 815, 817 (Mo.1974). The test to be utilized was stated differently in Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978). In that case the question was whether or not a state prisoner of Arkansas had been deprived of adequate counsel in his criminal trial. Reynolds, the prisoner, contended that he had not been afforded effective assistance of counsel in a postconviction relief proceeding in the state courts of Arkansas. His motion there was overruled and thereafter he sought a writ of habeas corpus in the federal district court. An evidentiary hearing was held after which the district court rejected Reynolds’ claims and he appealed to the Eighth Circuit. The district court decision was affirmed; however, in the process of doing so, the Eighth Circuit enunciated certain criteria to be used in determining the question of effective assistance of counsel:

“The accepted standard for effectiveness of trial counsel is now established as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances. United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977). Furthermore, there is a presumption that counsel is competent, Thomas v. Wyrick, 535 F.2d 407, 413 (8th Cir.), cert. denied, 429 U.S. 868, 97 S.Ct. 178, 50 L.Ed.2d 148 (1976), and the petitioner must shoulder a heavy burden to override this presumption. Id.; Crismon v. United States, 510 F.2d 356, 358 (8th Cir. 1975); McQueen v. Swenson (McQueen I), 498 F.2d 207, 214 (8th Cir. 1974). Finally, the exercise of reasonable judgment, even when hindsight reveals a mistake in that judgment, does not render a lawyer negligent or lacking in competence in rendering his services.” 574 F.2d at 979.

As is obvious, the foregoing states a standard of conduct for defense counsel; however, the Eighth Circuit required something further to be shown and found before a new criminal trial would be granted as postconviction relief. As to this the Eighth Circuit stated, 574 F.2d 980:

“In recent cases where the attorney’s failure to provide essential services has been challenged this circuit has followed a flexible approach in requiring a petitioner to make some initial showing that his counsel’s conduct may have prejudiced him in some way before a conviction will be reversed. .

[[Image here]]

“Decisions of two circuits have nevertheless questioned the need for a separate showing of prejudice in effective assistance cases. The Sixth Circuit in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), held that once ineffectiveness has been established, ‘(h)armless error tests do not apply . . . .’ The Ninth Circuit established a similar rule in Cooper v. Fitzharris, 551 F.2d 1162, 1165 (9th Cir. 1977), where the court held, citing Geders v. United States, [425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592] supra, and Herring v. New York, [422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593] supra, that ‘once a petitioner has carried his burden of establishing ineffectiveness of counsel, his conviction must be reversed without regard to the presence or absence of prejudice.’ Although the Supreme Court’s recent decision in Holloway v. Arkansas, [435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426] supra, may be viewed as supportive of the results reached by the Sixth and the Ninth Circuits, the effect of the ease may be limited to conflict of interest situations.

“In measuring effective assistance of counsel the question of harm or prejudice is often intertwined with the question of whether the alleged conduct of counsel constituted a breach of duty in light of the factual circumstances of the case. Counsel’s exercise of competent services cannot be measured in the abstract or in a hypothetical sense. Whether we speak in terms of prejudice or some other standard, there must still be a reasonable nexus or relationship of the alleged breach of duty with the duty to act under the facts of the case. Counsel does not fail to render effective service if there is little or no likelihood that a reasonable lawyer under similar circumstances would consider the alleged defense reasonably essential to the case. As the Sixth Circuit has stated, counsel’s duty is to assert all apparent ‘substantial defenses’ available. See Beasley v. United States, supra at 696.”

In the recent case of Witham v. Mabry, 596 F.2d 293 (8th Cir. 1979), the court, in effect, reiterated its holding in Reynolds, but went on to say: “Petitioner ‘bears a heavy burden of proving unfairness resulting from alleged ineffective assistance of counsel.’ Johnson v. United States, 506 F.2d 640, 645 (8th Cir. 1974); see United States v. Kelton, 518 F.2d 531, 534 (8th Cir. 1975). ‘In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby.’ United States v. Hood, 593 F.2d 293 (8th Cir.1979); Benson v. United States, 552 F.2d 223, 224 (8th Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977).”

We recognize that the fixing of a standard by which effectiveness of counsel can be measured has been very difficult. In Garton v. Swenson, D.C., 417 F.Supp. 697 (1976), John W. Oliver, J., demonstrated the difficulty encountered within the Eighth Circuit. In Missouri, we have had a similar experience. In State v. Schaffer, 454 S.W.2d 60, 65 (Mo.1970), the standard used to measure the effectiveness of counsel was “whether his actions or lack thereof made the trial a farce or a mockery of justice.” In Smith v. State, 473 S.W.2d 719, 722 (Mo.1971), the standard used was whether “ ‘circumstances . . . demonstrate that which amounts to a lawyer’s deliberate abdication of his ethical duty to his client.’ ” And, in Sims v. State, supra, the standard used was whether the accused “was denied a fair trial.”

It is not at all desirable that there be one standard applied in the state courts when adjudicating questions of effectiveness of counsel under our postconviction relief proceedings as provided for in rule 27.26 and a different standard applied when the same prisoner appears in a federal court within the Eighth Circuit seeking habeas corpus relief for allegedly ineffectiveness of counsel in his state court criminal trial. It is much more conducive to an orderly administration of justice and predictable results if both jurisdictions, federal and states within the Eighth Circuit, utilize the same criteria and concepts when adjudicating the same question with reference to the same prisoner. It is arguable as to whether or not there is as much difference in the application of our “fair trial” rule as compared with the standards enunciated in Reynolds v. Mabry, supra, and in Witham v. Mabry, supra. The latter requires first that there be a finding that the conduct of the attorney does not measure up to the standard prescribed in Reynolds and, if there is such a finding, that the defendant was prejudiced thereby. If he was, he did not have a fair trial. Regardless, we believe it is of substantial importance that the trial and appellate courts of this state and the trial and appellate courts in the federal system of the Eighth Circuit be applying the same standard and in the same way. To this end the court adopts the holdings of Reynolds v. Mabry, supra, and Witham v. Mabry, supra, with reference to the standard and the manner of its application for determining the question of whether a defendant is entitled to a new trial because of ineffective assistance of counsel.

The new test adopted in this opinion is prospective only in its application, being applicable to this case and to other 27.26 hearings held subsequent to the publication of this opinion; to wit, April 25, 1979.

The judgment of the circuit court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

MORGAN, C. J., RENDLEN and SI-MEONE, JJ., and FINCH, Senior Judge, concur. SEILER, J., concurs in part and dissents in part in separate opinion filed. DONNELLY, J., dissents in separate dissenting opinion filed. WELLIVER, J., not participating because not a member of the court when cause was submitted.