State v. Henke

901 S.W.2d 921, 1995 Mo. App. LEXIS 1269, 1995 WL 405731
CourtMissouri Court of Appeals
DecidedJuly 11, 1995
DocketNo. WD 47413
StatusPublished
Cited by3 cases

This text of 901 S.W.2d 921 (State v. Henke) 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
State v. Henke, 901 S.W.2d 921, 1995 Mo. App. LEXIS 1269, 1995 WL 405731 (Mo. Ct. App. 1995).

Opinion

ULRICH, Presiding Judge.

Douglas Henke was convicted on December 9, 1992, of assault in the first degree, § 565.050, RSMol994, and armed criminal action, § 571.015.1, RSMol994, following a jury trial. He was sentenced to concurrent sentences of 30 years imprisonment for assault and 40 years imprisonment for armed criminal action.

On May 28, 1993, Mr. Henke filed his pro se motion for postconviction relief pursuant to Rule 29.15. An amended motion was filed on Mr. Henke’s behalf by appointed counsel. In his amended motion, Mr. Henke alleged that his trial counsel was ineffective in failing to timely endorse a defense witness, Dr. William O’Connor. Although Dr. O’Connor was permitted to testify, Mr. Henke claimed the failure to timely endorse Dr. O’Connor prevented him from being permitted to testify that Mr. Henke suffered from post-traumatic stress disorder as a result of the shooting for which he was prosecuted which constituted evidence that he did not have the requisite intent to commit assault in the first degree.

Additionally, Mr. Henke alleged that trial counsel was ineffective for failing to object [923]*923during closing argument to the prosecutor’s demonstration of how Mr. Henke was holding the shotgun that fired, severely injuring the victim. He claimed no facts were in evidence to support the demonstration and, thus, it was prejudicial and objectionable. Following an evidentiary hearing, the motion court entered its order, together with findings of fact and conclusions of law, overruling Mr. Henke’s Rule 29.15 motion.

Mr. Henke appeals the judgment of conviction and the denial of his motion for postcon-viction relief. The judgment of conviction and the order denying the Rule 29.15 motion are affirmed.

On the evening of February 3, 1992, William Gallagher and Jimmy Cowles were at a tavern near Marshall when Pam Brown invited them to a party at her house. They arrived at Ms. Brown’s house in Marshall at approximately 11:00 p.m. to find only Ms. Brown, Ms. Brown’s sister, and her sister’s husband. About ten minutes after their arrival, Mr. Henke exited the bedroom and asked Mr. Gallagher and Mr. Cowles to leave. Mr. Gallagher agreed to leave but wanted to use the bathroom first. Mr. Cowles told Mr. Henke, “when the lady of the house asks me to leave, I’ll leave.”

Mr. Henke then left the house and got his shotgun from his truck. Mr. Gallagher and Mr. Cowles were leaving the house just as Mr. Henke returned with the shotgun. As Mr. Cowles stepped onto the porch, he felt the shotgun against his chest and backed up a couple of steps. He told Mr. Henke, “If you’re man enough to pull the trigger, pull it.” Mr. Henke slowly started lowering the shotgun and, as it reached the level of Mr. Cowles’ groin, he pulled the trigger discharging the weapon. Mr. Cowles dropped to the ground. Mr. Henke then turned to Mr. Gallagher and said, “Get him out of here or you are next.” He also told Mr. Gallagher that “it was a blank” and that Mr. Cowles would be alright. Mr. Gallagher ran to his car, drove to a nearby convenience store, and called the county sheriffs department.

Mr. Henke and Ms. Brown fled from the scene of the shooting. They drove away in Mr. Henke’s truck. After driving a few miles, Mr. Henke stopped the vehicle and threw the shotgun into weeds. The couple returned to Marshall where Mr. Henke was arrested by the Marshall police. He told police officers that he had been in Blackburn all night at a party, and he asked why he was being arrested. Mr. Henke appeared arrogant and devoid of remorse.

Mr. Cowles was rushed to a local hospital and, due to the severity of his injuries, was transferred by helicopter to the University of Missouri-Columbia Medical Center. He had suffered a shotgun wound to his suprapubic region which resulted in the amputation of both legs. Doctors also performed a permanent colostomy, and Mr. Cowles was left with no function in his genitals.

Mr. Henke testified that he was carrying his shotgun into the house when it went off accidentally. He said that he did not pull the trigger intentionally and that he thought the shotgun was unloaded.

Dr. William O’Connor, a clinical psychologist hired by the defense to examine Mr. Henke, testified at trial that Mr. Henke suffered from “generalized anxiety disorder with some post-traumatic features” as a result of the shooting.

Ineffective Assistance of Counsel

In points one and two, Mr. Henke claims that the motion court erred in denying his Rule 29.15 motion for postconviction relief based on ineffective assistance of counsel. He asserts that his trial counsel was ineffective (1) in failing to object to the prosecutor’s demonstration during closing arguments and (2) in failing to timely endorse a witness.

Appellate review of the denial of a postconviction motion is limited to whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(j); State v. Nolan, 872 S.W.2d 99, 104 (Mo. banc 1994). Findings and conclusions are clearly erroneous only if a review of the entire record leaves the appellate court with the definite and firm impression that a mistake has been made. Nolan, 872 S.W.2d at 104.

To prevail on a claim of ineffective assistance of counsel, a convicted defendant [924]*924must show that (1) his attorney’s performance was deficient in that he faded to exercise the customary skill and diligence that a reasonably competent attorney would manifest under similar circumstances, and (2) the deficient performance prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). “Prejudice exists only where trial counsel’s acts or failures to act are outcome determinative.” State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994), cert. denied, — U.S. -, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994). The movant must show there is a reasonable probability that, but for his attorney’s unprofessional errors, the result of the proceeding would have been different. Id. Furthermore, the movant must overcome the presumption that counsel is competent. Id.

A. Failure to Object to Prosecutor’s Closing Argument

Mr. Henke claims, in his first point on appeal, that his counsel was ineffective for failing to object to the prosecutor’s demonstration during closing argument. The prosecutor demonstrated how he believed Mr. Henke held the weapon during the shooting. Mr. Henke argues that the demonstration was unsupported by the evidence because it was contrary to his version of the facts and no witnesses at trial specifically testified to how he was holding the weapon.

A trial court has broad discretion in controlling closing arguments and counsel is given wide latitude in making summations. State v. Martin, 852 S.W.2d 844 (Mo.App.1992). A prosecutor is allowed to argue the evidence and all reasonable inferences from the evidence during closing arguments. State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994), cert. denied, — U.S. -, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Care & Treatment of Gormon
371 S.W.3d 100 (Missouri Court of Appeals, 2012)
State v. Brown
337 S.W.3d 12 (Supreme Court of Missouri, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
901 S.W.2d 921, 1995 Mo. App. LEXIS 1269, 1995 WL 405731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-henke-moctapp-1995.