Friday, July 6, 2007

Glass v. State[1]

Opinion handed down July 6, 2007

The Missouri Supreme Court held that the motion court did not clearly err in granting Glass’ motion for post-conviction relief based on ineffective assistance of counsel due to counsel’s failure to call as witnesses during the penalty phase of Glass’ trial his medical doctor, former teachers, probation officers and certain experts in order to present mitigating evidence on his behalf.

I. Facts and Holding

Travis Glass was convicted of first-degree murder and sentenced to death in the Circuit Court of Callaway County and his conviction was affirmed on appeal. Glass then filed a motion for post-conviction relief in the motion court [2] pursuant to Missouri Supreme Court Rule 29.15 alleging ineffective assistance of both trial and appellate counsel. The motion court denied all guilt phase relief, but found ineffective assistance of trial counsel in the penalty phase and granted relief with respect to three issues: (1) counsel’s failure to object to an improper jury instruction; [3] (2) counsel’s failure to investigate and present mitigating evidence in the form of lay witness testimony; and (3) counsel’s failure to investigate and present mitigating expert testimony. [4] Glass appealed the denial of guilt phase relief, and the state appealed the grant of penalty phase relief. The Missouri Supreme Court affirmed the motion court’s decision on all counts. [5]

During the penalty phase of his trial, Glass’ counsel called ten witnesses to present mitigating evidence on his behalf, including Glass’ family, friends, former employers, and coworkers. The motion court found ineffective assistance in counsel’s failure to call three groups of witnesses: (1) Dr. Barry Scherr, who had seen Glass one time in 1981 when Glass was 23 months old and diagnosed with bacterial meningitis; (2) Glass’ former middle and high school teachers who would have testified to Glass’ impaired intellectual functioning; and (3) Glass’ current probation officers who would have testified to Glass’ good behavior while on probation. The motion court similarly held that defense counsel’s failure to call any one of three experts who could have testified on Glass’ behalf also amounted to ineffective assistance of counsel. Such experts included Dr. Gelbort, who would speak to Glass’ difficulties with learning, memory, and impulse control; Dr. Burns, a learning disability expert who would testify that Glass’ ability to reason and to form concepts was far below average for his age; and Dr. Martinez, a toxicologist who would testify that Glass was so intoxicated on the night in question that his ability to appreciate the criminality of his conduct would have been severely diminished.

II. Legal Background

Missouri Supreme Court Rule 29.15 allows a person convicted of a felony after a trial to seek relief in the sentencing court. [6] A claim for post-conviction relief may lie only where the claimant is asserting that his conviction violated either the state laws and state constitution or the United States constitution. [7] The statute explicitly includes claims asserting ineffective assistance of counsel, that the sentencing court did not have jurisdiction, or that the sentence imposed exceeded the maximum allowed by law. [8] Appellate review of a motion court’s determination of a motion for post-conviction relief is limited to whether the findings of the motion court were clearly erroneous. [9]

In a post-conviction relief claim based on ineffective assistance of counsel, a claimant must show that the counsel’s performance “did not conform to the degree of skill, care, and diligence of a reasonably competent attorney” and that it prejudiced the defendant. [10] A claimant must satisfy both prongs of the test. [11] To prove prejudice, a defendant must show that, but for the attorney’s poor representation, there is a reasonable probability that the outcome of the proceeding would have been different. [12] The question with regards to prejudice is whether or not the deficiency in representation “undermines confidence in the outcome of the trial.” [13] Again, the standard of appellate review is clear error, which only exists if the reviewing court is left with the definite and firm impression that the motion court made a mistake. [14]

It is inherently difficult to win a claim for ineffective assistance of counsel based on counsel’s failure to call a witness or an expert, because a defendant must show that: (1) trial counsel knew or should have known of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness’s testimony would have yielded a viable defense. [15] Ordinarily such a claim will not support a finding of ineffective assistance of counsel, as it is presumed that counsel’s decision not to call a witness is a matter of trial strategy. [16] In fact, counsel’s strategic decisions made after investigation of the relevant law and facts are “virtually unchallengeable.”[17] As a result of the standard of review of a motion court’s determination of post-conviction claims, and the difficulty of winning an ineffective assistance claim based on counsel’s failure to call witnesses, Missouri has many opinions affirming a motion court’s finding that counsel was not ineffective and barring post-conviction relief where counsel failed to present testimony of additional witnesses at a defendant’s trial. [18]

Ordinarily, an appellate court reverses a motion court’s denial of post-conviction relief due to ineffective assistance of counsel only in extreme cases of attorney misconduct, such as a severe misapplication of the law or an inexplicable failure to call an exculpatory witness. In Taylor v. State, Taylor’s attorney failed to challenge the legality of the police search and seizure because he mistakenly believed the search was warranted. [19] Likewise in Stiers v. State, the defense did not think an instruction on self-defense was applicable and therefore failed to request one. [20] In Gennetten v. State, Gennetten was convicted of second degree murder of a fifteen-month-old, and he defended on the basis of accident. [21] His attorney knew about but did not call an expert who would have refuted the State’s theory of a pattern of abuse and significantly bolstered Gennetten’s defense by testifying that he believed the child’s burns were inflicted accidentally. [22]

III. Commentary

The Missouri Supreme Court took the easy route in affirming the motion court’s granting of penalty phase post-conviction relief for ineffective assistance of counsel with respect to counsel’s failure to call certain witness and experts at Glass’ trial. However, the easy route is mandated in Rule 29.15 itself, which significantly restricts appellate court review of a motion court’s ruling on post-conviction relief in requiring clear error by the motion court. Such deference is logical, in part, because one purpose of the Rule is to bring finality to criminal proceedings, [23] and allowing the motion court to be reversed easily would obfuscate this purpose. However, the clearly erroneous standard can prove troublesome in cases such as Glass’, where its application prevents an appellate court from reversing a motion court decision that is clearly tenuous, yet does not rise to the level of clear error.

A careful review of the facts underlying Glass’ motion for post-conviction relief and articulated in the dissent indicates that that there are strong countervailing arguments that this claimant’s request for relief should have been denied. The motion court found ineffective assistance in defense counsel’s failure to call school officials and prior professionals to testify to Glass’ impaired intellectual functioning. However, such testimony likely was cumulative because the facts these witnesses would have introduced were already in evidence via previous defense witness testimony. [24] The defense chose not to call Dr. Scherr because he saw Glass only one time 23 years earlier and had had no contact with him since. [25] The probation officers had sparse contact with Glass, and could only testify that he had had no probation violations until he committed this murder. [26] Furthermore, their testimony was potentially damaging to his case in that neither had noticed Glass having family or substance abuse problems. [27] Counsel likewise provided tactical explanations for not calling the remaining experts, not least of which was fear that their testimony would open the door to cross-examination regarding Glass’ sexual fetishes, including pedophilia. [28]

One rationale for the outcome in this case is that it is a death penalty case. Capital defense attorneys are required to “discover all reasonably available mitigating evidence,” [29] and there are virtually no limits on a capital defendant’s right to introduce mitigating evidence concerning his own circumstances. [30] Furthermore, defense counsel did not call any experts on Glass’ behalf at the penalty phase, and could not articulate a reason for failing to call several of the excluded witnesses of which counsel had knowledge.

Motions for post-conviction relief based on ineffective assistance of counsel are very difficult to prove, and they are extremely fact-driven. Where the claim is based on counsel’s failure to call certain witnesses or experts, relief hinges on what the substance of the witness’s testimony would have been and whether or not counsel can cast the decision as part of a coherent trial strategy. The motion court could have denied Glass his post-conviction relief. However, it is likely the court saw a man with significantly impaired mental capacity that may not have been sufficiently conveyed to the jury, and now also with a death sentence. The motion court took the compassionate route within the boundaries of the law in granting Glass post-conviction relief due to ineffective assistance of counsel, and because the standard of review requires clear error, the Missouri Supreme Court was right to affirm.

- Lauren Standlee

[1] No. SC 87852 (Mo. July 6, 2012) (en banc). available at  The West reporter citation is 227 S.W.3d 463 (Mo. 2007) (en banc).
[2] The motion court in this case was the Circuit Court of Callaway County, as the term “motion court” refers to the court that imposed the sentence. Mo. Sup. Ct. R. 29.15.
[3] The Missouri Supreme Court majority opinion did not address the motion court’s finding of ineffective assistance of counsel with respect to trial counsel’s failure to object to the State’s jury instruction concerning the aggravating circumstances of kidnapping. Glass, 227 S.W.3d at 485 (Russell, M., dissenting). Thus, this article will not address it either.
[4] The motion court denied Petitioner Glass’ remaining claims of ineffective assistance of counsel with respect to the penalty phase. Id. at 467. These rejected claims included counsel’s failure to: (1) object to the State’s admission of autopsy findings as violative of Petitioner’s rights under Crawford v. Washington; (2) object to various statements made by the prosecutor in closing argument; (3) ask certain questions of prospective jurors during voir dire; and (4) request a specific instruction regarding the statutory mitigator of age. Id. at 472-76. As noted, the motion court also denied all guilt phase relief.
[5] The written opinion is 26 pages. In the interest of brevity, this article will focus on the acts of trial counsel which the motion court and this Court said constituted ineffective assistance of counsel, as that was the bulk of the contention between the majority and dissenting opinions.
[6] Mo. Sup. Ct. R. 29.15(a).
[7] 29.15(a).
[8] 29.15(a).
[9] 29.15(j).
[10] Strickland v. Washington, 466 U.S. 668, 687 (1984).
[11] Sanders v. State, 738 S.W.2d 856, 857 (Mo. 1987) (emphasis in original).
[12] Strickland, 466 U.S. at 694.
[13] Id.
[14] Sams v. State, 980 S.W.2d 294, 296 (Mo. banc 1998).
[15] Hutchinson v. State, 150 S.W.3d 292, 304 (Mo. banc 1994). The same standard applies to counsel’s failure to call both lay witnesses and expert witnesses. See Gennetten v. State, 96 S.W.3d 143, 148 (Mo. App. W.D. 2003)
[16] State v. Harris, 870 S.W.2d 798, 816 (Mo. banc 1994).
[17] Id. at 816-17.
[18] Glass v. State, 227 S.W.3d 463, 470 (Mo. 2007).
[19] Taylor v. State, 2007 WL 2088555, at *6 (Mo. App. W.D. July 24, 2007).
[20] Stiers v. State, 229 S.W.3d 257, 260-61 (Mo. App. W.D. 2007).
[21] 96 S.W.3d 143, 149 (Mo. App. W.D. 2003).
[22] Id.
[23] Lindner v. State, 676 S.W.2d 299, 301 (Mo. App. E.D. 1994).
[24] Glass, 227 S.W.3d at 479 (Russell, M., dissenting). The motion court stated that failure to call these witnesses was prejudicial because “jurors perceive non-family members as more ‘disinterested’ witnesses.” Id. at 468.
[25] As the dissent points out, the argument would be different if Glass had had recent contact with Dr. Scherr, or if Dr. Scherr could testify that he had personal knowledge of Glass’ mental impairments. Id. at 478.
[26] Id. at 479-80.
[27] Id. at 480.
[28] The psychologist and neuropsychologist would have testified to Glass’ mental disorders, including fetishism, and both were aware of the child pornography and women’s underwear found in Glass’ home. Id. at 482-83. Because “a substantial inquiry into the factual basis of an expert opinion is a proper subject of cross-examination,” defense counsel rightly feared that cross-examination would elucidate these facts for the jury, even though the trial court had already determined such evidence was inadmissible. Id. at 483.
[29] Glass, 227 S.W.3d at 469 (citing Wiggins v. Smith, 539 U.S. 510, 524 (2003)).
[30] Id. (citing Payne v. Tennessee, 501 U.S. 808, 822 (1991)).