Love v. State ( 1984 )

GUNN, Judge.

Movant appeals the denial of post-conviction relief in this Rule 27.26 proceeding. Movant was convicted by a jury of two counts of second degree murder. Section 559.020, RSMo 1969 (now § 565.004, RSMo 1978, repealed effective July 1, 1984 by Laws 1983, p. 923).¹ These convictions were affirmed on direct appeal. State v. Love, 546 S.W.2d 441 (Mo.App.1976). Mov-ant then instituted this proceeding under Rule 27.26 to set aside the convictions and obtain a new trial, alleging that his defense counsel rendered ineffective assistance, primarily by reason of the omission of a manslaughter instruction. After an evidentiary hearing on the motion, the trial court denied the requested relief. The Western District affirmed the judgment of the trial court. However, the appeal was transferred to this Court by certification of a dissenting judge. Rule 83.01. We consider this case as on original appeal, Rule 83.09, and affirm.

The evidence presented at movant’s trial will be outlined more fully in the discussion which follows. A detailed statement of the facts is given in the opinion on direct appeal. State v. Love, supra. For present purposes it is sufficient to note that the two young victims were found, one dead and one dying, with their throats slashed. Movant was identified with the crime on the basis of circumstantial evidence, and the jury could reasonably have concluded that he was the assailant. Movant took the stand to deny any connection with the killings. The jury was instructed solely on the offense of second degree murder in both instances. A manslaughter instruction was neither requested nor given.

The nub of movant’s claim is that the trial court was required, by the applicable MAI-CR Notes on Use, to submit a manslaughter instruction, whether requested or not, and that the failure to do so constituted grounds for a new trial. Proceeding from this contention, movant postulates that his defense counsel was ineffective in any one of the following three respects: failing to request a manslaughter instruction; failing to raise the instructional error in his motion for new trial; and failing to raise the omission as “plain error” on appeal. Movant therefore contends that he should be afforded a new trial.

In order to prevail, movant is required to demonstrate “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.” Wilson v. State, 626 S.W.2d 243, 245 (Mo. banc 1982), quoting Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979). Each of the three asserted faults of mov-ant’s defense counsel will therefore be reviewed under this standard, with the constant focus of this appeal on the issue of effective assistance of counsel.

The first instance of charged ineffectiveness is the failure of counsel to obtain a manslaughter instruction as an alternative to the submission of second degree murder. The record in this proceeding indicates that counsel made a conscious decision not to request a manslaughter instruction. At the hearing on the motion, he stated that he did not request the instruction because he did not want to confuse the jury with an instruction which was inconsistent with the theory of defense — that movant was totally innocent of the killings. Furthermore, he perceived that to argue manslaughter would have been to acknowledge that defendant had been involved in the killings, and he wanted him nowhere near the site of- the crime at the time of the attack.²

Movant, however, contends that counsel could not have made such a conscious tactical decision, as his attorney also stated that it was his opinion that manslaughter was not submissible under the evidence. However, it is not important whether counsel’s decision was simply a matter of strategy based upon a reasonable awareness of applicable law or whether it was the product of an uninformed notion that no alternative was available. The test to be applied is whether a reasonably competent attorney would have performed differently under similar circumstances. Id.

The pertinent circumstances were that the evidence was strong with respect to the killer’s murderous intentions but weaker with respect to the culprit’s identity. Placed in the same situation, a reasonably competent attorney could have concluded that it was in the best interest of his client to deny the jury the opportunity to compromise on some middle ground between second degree murder and acquittal. See State v. Lee, 654 S.W.2d 876, 879 (Mo. banc 1983) (recognition of proper trial strategy of counsel to elect not to request instruction on lesser degree of homicide).

An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel. McClain v. State, 560 S.W.2d 894, 896 (Mo.App.1978). Further, the reasonableness of employing an all-or-nothing strategy in a homicide prosecution is not affected by the failure of the jury to acquit. Riley v. Lockhart, 726 F.2d 421 (8th Cir.1984). Obviously, then, movant’s counsel cannot be convicted of being ineffective for seeking to employ the best defense for his client by not offering the jury a middle ground for conviction. A manslaughter instruction would not benefit the movant. An offer of such an instruction would be out of phase with trial strategy, which was that defendant was innocent of anything— not that the homicides were manslaughter.

The second instance of claimed ineffectiveness is the failure to raise the lack of a manslaughter instruction in the motion for new trial. Fully stated, movant’s argument is that reasonably diligent counsel would have been aware that the trial court’s failure to submit manslaughter with second degree murder constituted grounds for a new trial and that such failure could be raised in the first instance in the motion for new trial. Thus, movant contends that his counsel’s failure to raise the omission of the manslaughter instruction in the motion for new trial constituted ineffective assistance of counsel.

Movant is correct that the failure to give a lesser offense instruction in a homicide case may be raised in a motion for new trial, even without a request for the instruction or an objection to its absence at the time of trial. Section 546.070(4), RSMo 1978 (amended effective July 1, 1984 by Laws 1983, p. 923);³ State v. Johnson, 505 S.W.2d 94, 95 (Mo.1974); Rules 28.02(a), 28.03; cf. State v. Olson, 636 S.W.2d 318, 322 (Mo. banc 1982) (creating a different standard for non-homicide offenses).⁴

It is also certain that had the absence of a manslaughter instruction been raised in the movant’s motion for new trial, the trial court, if following our decision in State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975),⁵ would necessarily have granted a new trial. Otherwise, the case would have been reversed and remanded for a new trial. See State v. Flenoid, 617 S.W.2d 75 (Mo. banc 1981). But, again turning to the cynosure of this appeal, the pertinent issue is whether movant’s counsel, or any counsel, should be branded as ineffective for failing to take advantage of the omission of an instruction by the trial court which was not presented to it for its consideration.

We have concluded that a reasonable attorney could have decided that a manslaughter instruction would have been detrimental to his client. But it is. also true that a manslaughter instruction was required by the then applicable law. Although not compelled, an attorney is under an ethical admonishment to disclose legal authority which is contrary to his position and to refrain from misleading the court into unwarranted action by any artifice or concealment. State ex rel. A.M.T. v. Weinstein, 411 S.W.2d 267, 274-75 (Mo.App.1967); Rule 4, EC 7-23. Are we then to say that counsel is necessarily ineffective for failing to raise error which resulted from a legally correct, although ethically questionable, decision to avoid discussing the applicability of a certain instruction? To do so would be to compel the practicing bar to engage in the ritual of “sandbagging” the court or bear the brand “ineffective.” This should not be the rule in Missouri.

There is yet another reason why the trial court’s rejection of this second charge of ineffectiveness must stand. In order to demonstrate prejudice under the Seales test, supra, “[mjovant must demonstrate that any omission by his attorney resulted in prejudice to his position and deprived him of substantial rights.” Careaga v. State, 613 S.W.2d 863, 867 (Mo.App.1981). In this regard, the pertinent inquiry is whether the omission had a material effect on the outcome of the trial which is deleterious to the movant. Cox v. Wyrick, 642 F.2d 222, 226 (8th Cir.1981). In this case, the trial court found that movant was not prejudiced by his counsel’s failure to assert the instructional error, and on review, the trial court’s judgment must be affirmed unless this finding is clearly erroneous. Rule 27.26(j). Close analysis of the record reveals that the finding was not clearly erroneous.

With respect to the seriousness of the homicides of which movant was convicted, it is clear that movant did not suffer material prejudice as a result of his counsel’s failure to obtain a new trial. In any new trial resulting from an allegation of error in the instructions, it must be assumed that the jury would be instructed correctly. Briefly reviewing the evidence, it is apparent that if the jurors believed movant was the young victims’ assailant, they would also believe that movant was guilty of second degree murder and not manslaughter. This same conclusion would apply to any new trial involving the same killings.

The evidence showed that the fourteen-year-old victim had struggled before she was killed. She had received multiple wounds, including puncture wounds on her right side and bruises on her right thigh. The two and one-half year old victim had also received multiple wounds about the head and face. Under the applicable MAI-CR instruction, the jury needed only to find that movant intended to cause the deaths, and that movant did not act in anger, fear or agitation “suddenly provoked by the unexpected acts or conduct of” the victims. MAI-CR 6.06 (Murder: Second Degree). There was no evidence in either the first trial or in the hearing on the motion which might possibly have convinced the jury to reject second degree murder and convict movant of manslaughter. See Kurtz v. State, 645 S.W.2d 7, 9 (Mo.App.1982) (no showing that movant was prejudiced by counsel’s failure to obtain a new trial based on omission of manslaughter). It is also clear that the jury at movant’s trial was thoroughly convinced of movant’s guilt on the murder charge in light of their recommendation that he be sentenced to 150 years for each offense. Certainly, the recommended punishment belies any indication that the jury would avail themselves of the opportunity to convict of a lesser offense and accordingly assess a less severe punishment. Thus, movant could not have been prejudiced by the denial of a new trial at which both second degree murder and manslaughter would be submitted. The mere omission of the manslaughter instruction in this instance does not afford implication of such prejudice that would nullify movant’s conviction or demonstrate ineffective assistance of counsel. Hanson v. State, — S.W.2d - (No. 13200, Mo.App.S.D., March 26, 1984); Kurtz v. State, 645 S.W.2d at 9.

Furthermore, there is no reason to believe that movant was deprived of a significant opportunity of acquittal by the failure of his counsel to obtain a new trial. The evidence linking movant to the crime, although circumstantial, was compelling.

With respect to the third claim of ineffective assistance — the failure to raise the omitted instruction as plain error on appeal — the trial court’s finding that no material prejudice resulted from this failure is also not clearly erroneous. It follows that if no prejudice resulted from the failure to obtain a new trial by motion, then no prejudice resulted from the failure to obtain a new trial on appeal.

A trial court should not be obliged to grant a new trial on a claim of ineffective assistance of counsel unless there is a reasonable possibility that competent counsel could have obtained a different result. See Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 1182, 55 L.Ed.2d 426, 438 (1978). Nor should this Court feel compelled to grant a new trial unless the finding that no such possibility existed was clearly erroneous. On the present record, no such error appears.

The judgment denying movant’s requested relief is affirmed.

RENDLEN, C.J., concurs. BILLINGS, J., concurs in separate opinion filed. HIGGINS, J., concurs and concurs in separate concurring opinion of BILLINGS, J. GUNN, J., also concurs in separate concurring opinion of BILLINGS, J. BLACKMAR, J., concurs in separate opinion filed. WELLIVER, J., dissents in separate opinion filed. DONNELLY, J., dissents and concurs in separate dissenting opinion of WELLIVER, J.

1 . The effective date would be extended to October 1, 1984 by S.B. 448 of the 82nd General Assembly, which at the time of this writing has been finally passed and awaits the Governor’s signature.

2 . The record on appeal in this Rule 27.26 proceeding relates movant's trial counsel’s conscious rejection of a manslaughter instruction. When asked why he did not request the instruction, he testified,

“I didn’t request it because I didn’t want it”

"I didn't want to argue manslaughter because for me to argue manslaughter I would have had to put Jim Love in the apartment.”

3 . The effective date would be extended to October 1, 1984 by S.B. 448 of the 82nd General Assembly, which at the time of this writing has been finally passed and awaits the Governor’s signature. (See footnote 1.)

4 . Of course, a different situation might have transpired had the court tendered a manslaughter instruction which defendant then explicitly refused. This would have resulted in a binding waiver upon defendant, negating any claim that counsel was ineffective in failing to submit the instruction. See Mercer v. State, 666 S.W.2d 942 (Mo.App.1984). But inasmuch as a manslaughter instruction was never tendered, the express waiver issue does not arise.

5 .The rule of Stapleton is repealed by legislative action. Section 565.025(3), RSMo Cum.Supp. 1983 (effective Oct. 1, 1984) (see footnotes 1 and 3). The automatic submission of both second degree murder and manslaughter was also required for cases submitting what was then known as first degree murder, § 559.010, RSMo 1969. The legislature repealed § 559.010 in 1975. See Laws 1975, p. 408.