Williams v. State

730 S.W.2d 284, 1987 Mo. App. LEXIS 4050
Missouri Court of Appeals·Decided May 5, 1987·No. No. 51253·Published·Cited by 10 cases

Opinion

SMITH, Presiding Judge.

Movant, Doyle Williams, appeals from the order of the trial court denying his request for post-trial relief under Rule 27.-26. We affirm.

Williams was convicted in October, 1981, of the capital murder of Dr. A.H. Domann in Callaway County, Missouri. He received a sentence of life imprisonment without the possibility of probation or parole for 50 years. The State sought the death penalty. That conviction was affirmed in State v. Williams, 662 S.W.2d 277 (Mo.App.1983) (Williams II). Shortly prior to that trial Williams was convicted of the capital murder of Kerry Brummett, also in Callaway County. In that case he was sentenced to death. That conviction was affirmed in State v. Williams, 652 S.W.2d 102 (Mo. banc 1983) {Williams I). The Brummett killing conviction was attacked in a Rule 27.26 proceeding and denial of relief under that Rule was affirmed. Williams v. State, 712 S.W.2d 404 (Mo.App.1986) (Williams III). The two murder cases are “inextricably” interwoven. Williams I, l.c. 106.

In the case before us movant alleged in his petition and supplements thereto thirty-seven charges of ineffectiveness of counsel, fourteen charges of prosecutorial misconduct, seven charges of trial error of alleged constitutional dimension, and one charge of violation of double jeopardy rights arising from his treatment in prison. A change of judge was granted from the original trial judge. After three days of hearing at the state penitentiary, encompassing 835 pages of transcript, thirty one exhibits of movant and 20 exhibits by the state, the trial court found against movant on all allegations. The trial court’s find[286]*286ings, conclusions and opinion (primary and supplemental) are seventy-four pages long. On appeal movant challenges findings concerning fourteen allegations of ineffectiveness of counsel, five allegations of prosecu-torial misconduct, and one allegation of trial error.

Williams had assistance of counsel at the 27.26 hearing but handled most of the questioning of witnesses, trial objections, and discussions with the court and counsel himself. It is apparent that he is highly intelligent, was thoroughly prepared, and possessed a strong legal background for a layman. His briefs in this court were filed pro se.

We review the record to determine whether the findings of the trial court are supported by evidence. Movant bears the burden of establishing his right to post-conviction relief and we can reverse only if we find that the trial court’s findings are clearly erroneous. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rule 27.26(j); Medley v. State, 639 S.W.2d 401 (Mo.App.1982) [1]. We defer to the trial court’s findings of credibility.

Williams was originally charged with two counts of capital murder — one involving Brummett, the other Domann. The counts were severed and the Brummett case was tried in Clay County on a change of venue. The Domann case was tried in Marion County, also on a change of venue. Thomas Marshall, a public defender was appointed to represent defendant on both charges. Shortly prior to the trial of the Brummett killing private counsel, Charles Hyler, was retained by movant’s family and was lead counsel in that case. Marshall remained in the case as co-counsel as a condition of Hyler’s accepting the representation. Marshall was movant’s attorney in the Domann murder trial.

Marshall has been an attorney since 1968, and had served as prosecuting attorney for Randolph County for two terms. He had served in the Judge Advocate General’s Corps where he defended “hundreds” and prosecuted “hundreds” of cases. He had tried in excess of eighty jury cases in and around Randolph County. He utilized two investigators during his representation of Williams. He and the investigators interviewed in excess of 100 potential witnesses and Marshall took numerous depositions, including three of the main prosecution witness, John Morgan. In addition, Marshall attended four trials of related cases — movant’s trial for attempting to pass a forged prescription, movant’s trial for the murder of Brummett, movant’s girl friend Betty Coleman’s trial for the murder of Brummett, and the trial of another girl friend, Nina Potts, for arson. He observed the testimony and demeanor of Morgan and other key state witnesses at these trials.

The background of the murders is important. Dr. Domann’s office was burglarized and property was stolen by Morgan and movant. Amongst that property were blank prescription pads. Movant and Morgan then discussed means of utilizing the pads. Brummett saw the pads in movant’s possession. Movant attempted to utilize forged prescriptions in a Columbia drug store to obtain a controlled substance and was arrested and charged with attempting to obtain a controlled substance by fraud. Williams confided to Morgan that he could avoid conviction if Dr. Domann did not testify. Williams subsequently told Morgan he had killed Dr. Domann and suggested that Brummett also be killed. Morgan, Betty Coleman, and Williams then carried out the murder of Brummett. Extensive investigation of the murders was conducted by the Mid-Missouri Major Case Squad — a voluntary cooperative organization utilizing law enforcement officers of eight mid-Missouri counties. The Major Case Squad furnishes its services at the request of the chief law enforcement official of the county or locality involved.

During this investigation John Morgan was interrogated on several occasions, giving different stories, none of which was consistent with his testimony at trial. Eventually the prosecuting attorney of Callaway County promised Morgan that no prosecution would be instituted against him for any crimes he admitted to or testified concerning. Morgan became the primary [287]*287witness against Williams and Coleman in the Brummett case and against Williams in the Domann case as a result of this “deal.”

Movant’s most serious point on appeal, as we regard it, involves his charge of ineffectiveness of Mr. Marshall in his cross-examination of Morgan. Strickland v. Washington, supra, has established the guidelines to be followed in assessing a claim of ineffectiveness of counsel. First there must be a showing that counsel’s performance was deficient and secondly, there must be a showing that that deficiency prejudiced defendant’s defense. Mov-ant’s challenge to the conviction fails if either showing is insufficient. Counsel must provide reasonably effective assistance. The test is the fairness of defendant’s trial. Judicial scrutiny of counsel’s effectiveness must be highly deferential. The ultimate evaluation is the-reasonableness of counsel’s assistance. The distortions of hindsight based upon a lack of success are to be eschewed. Counsel is strongly presumed to have rendered effective assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengable.

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Williams v. State, 730 S.W.2d 284, 1987 Mo. App. LEXIS 4050 (Mo. Ct. App. 1987).

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