Thursday, July 31, 2008

Steven Crenshaw v. State of Missouri[1]

Opinion handed down July 31, 2008
Link to Mo. Sup. Ct. Opinion

In Crenshaw v. State, The Missouri Supreme Court expanded on its rule that if a movant is abandoned by counsel the appropriate remedy is to return the movant to where he or she would have been absent the abandonment.[2] Also, the Court held that trial counsel is not ineffective for failing to subpoena a witness if counsel reasonably believes that the witness will testify without a subpoena.

I. Facts & Procedural History[3]

Steven Crenshaw was charged with first degree assault and armed criminal action in connection with the shooting of Darwin Beck. At trial, Beck identified Crenshaw as the shooter. Crenshaw claimed he spent the night of the shooting with a female friend. His female friend, who was not subpoenaed, did not appear at trial to confirm Crenshaw’s alibi. Crenshaw was convicted on both counts.

In May 2002, Crenshaw moved for post-conviction relief under Rule 29.15 for ineffective assistance of counsel. Crenshaw argued that his attorney should have subpoenaed his female friend to corroborate his alibi defense. In January 2003, the motion court overruled Crenshaw’s motion. Crenshaw did not appeal the decision. In March 2005, however, Crenshaw moved to re-open his post-conviction case on grounds of abandonment. In June 2006, he moved to set aside the motion court’s judgment for lack of notice.

In August 2006, the motion court found that post-conviction counsel had abandoned Crenshaw by failing to file a timely notice of appeal. It reentered its previous order overruling Crenshaw’s motion for post-conviction relief, allowing him to appeal. Crenshaw filed his notice of appeal on August 7, 2006. The Missouri Court of Appeals, Eastern District dismissed Crenshaw’s appeal on April 10, 2007, holding that Crenshaw was not entitled to re-open his post-conviction proceedings based on the fact that his post-conviction counsel had failed to file a timely notice of appeal. The Missouri Supreme Court accepted transfer of the case on September 25, 2007.

II. Legal Background

In his appeal, Crenshaw presented two claims for relief. First, he argued that he was entitled to relief, under Rule 29.15, because his post-conviction counsel effectively “abandoned” him. Secondly, Crenshaw argued that his counsel at trial was ineffective and he is entitled to post-conviction relief. The Missouri Supreme Court dealt with each of Crenshaw’s claims separately.

A. Abandonment Claim
The motion court has authority to consider a motion to reopen Rule 29.15 proceedings when a movant has been abandoned by his counsel.[4] In general, remedies for abandonment are available in two situations. The movant is entitled to relief if either:
(1) post-conviction counsel takes no action on a movant’s behalf with respect to filing an amended motion and as such the record shows that the movant is deprived of a meaningful review of his claims; or
(2) when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a timely manner. [5]

If a court finds that a movant has been abandoned, then the proper remedy is to put the movant in the place where the movant would have been if abandonment had not occurred.[6] In this case, the motion court believed that reentering its previous order overruling his motion for post-conviction relief put him in the position he would have been in had his counsel not abandoned him.

The state argued that the motion court erred in concluding that Crenshaw had been abandoned by his counsel. Therefore, the motion court should not have reentered its order and Crenshaw’s appeal would be untimely. The Supreme Court held that the issue of abandonment was not before it. In order for the Court to review the finding of abandonment, “the issue must be presented to the Court in an appeal filed by the party adversely affected.”[7] Since the state did not appeal or cross-appeal in the present case, the Court declined to rule on the issue of abandonment.

B. Ineffective Assistance of Counsel Claim
In his second claim, Crenshaw argued that the motion court erred in denying his claim that trial counsel was ineffective in two respects. First, he asserted that the trial counsel’s failure to subpoena his female friend was conduct that “did not conform to the degree of professional skill and diligence of a reasonably competent attorney and that, absent this failure, there is a reasonable probability the outcome of his case would have been different.”[8] Secondly, Crenshaw asserted that trial counsel was ineffective in moving to continue his case without his approval.[9]

a. Failing to Subpoena a Witness
To plead a claim for ineffective assistance of counsel, Crenshaw needed to allege facts showing that his trial counsel’s conduct “did not conform to the degree of professional skill and diligence of a reasonably competent attorney and that he was thereby prejudiced.”[10] To show that he was prejudiced by his counsel’s conduct, Crenshaw must demonstrate a reasonable probability that, but for counsel’s conduct, the result of the proceeding would have been different.[11] A reasonable probability is a probability sufficient to undermine confidence in the outcome.[12]

In this case, Crenshaw’s trial counsel had spoken with the witness and she had agreed to testify at trial. The evidence adduced at trial showed trial counsel believed the witness would testify without being subpoenaed because of her intimate relationship with the defendant. Based on this belief, trial counsel did not subpoena her. In Missouri, trial counsel is not deemed ineffective for failing to subpoena a witness to testify at trial if the conduct of the witness is such that trial counsel was reasonable in believing the witness would appear to testify without a subpoena.[13]

The motion court found that the evidence in this case showed that Crenshaw’s trial counsel acted reasonably in not subpoenaing the female witness. The Missouri Supreme Court agreed, holding that trial counsel was not ineffective in failing to subpoena her as a witness. Furthermore, the Court reasoned that “there [was] sufficient evidence to support the motion court’s finding that the friend’s testimony . . . was not credible and that Mr. Crenshaw was not prejudiced by her failure to testify because the jury was likely to believe her alibi testimony was perjured.”[14]

b. Continuing a Case Without Client Approval
Crenshaw also claimed that trial counsel was ineffective in moving for a continuance without Crenshaw’s approval.[15] When the initial charges were filed against Crenshaw, he requested final disposition of his case within 180 days as provided for under the Uniform Mandatory Disposition of Detainers Law (UMDDL).[16] He argues that, but for the continuance, the state would have been forced to drop all charges against him.[17]

At the time Crenshaw’s case was continued, Crenshaw was acting as his own attorney.[18] He did not qualify for representation by the public defender and had not hired an attorney himself.[19] The court disposed of this claim summarily after determining that Crenshaw had no right to complain of ineffective assistance of counsel if he was not represented by counsel at the time the continuance was filed.[20]

III. Commentary

In this case, the Missouri Supreme Court came to two important conclusions. First, the Court expanded the rule announced earlier this term in State v. McFadden:[21] “If a court finds that a movant has been abandoned, then the proper remedy is to put the movant in the place where the movant would have been if the abandonment had not occurred.”[22] Where a criminal defendant can show that he has been deprived of legal counsel during the appellate stage of the proceedings, the court rightfully permits him another bite of the apple. While the precise circumstances for determining abandonment are not fixed, Missouri courts were given significant guidance in Barnett v. State.[23] This type of reasoned analysis provides courts with the ability to rectify potential injustices intelligently and without worry of undue furor.

The second holding announced in Crenshaw clarified the responsibilities of trial counsel with respect to subpoenaing specific witnesses. Trial counsel is not ineffective for failing to subpoena a witness if counsel reasonably believes that the witness will testify without a subpoena.[24] Requiring counsel to issue subpoenas for witnesses that he or she reasonably believes will appear at trial without such impetus imposes additional undue bureaucracy into a system already taxed for resources. There is no cause to establish a bright-line rule requiring subpoenas for every witness expected to testify at trial, and doing so would impose burdens that would significantly outweigh the benefits garnered.

There is, however, another issue to consider in this opinion. While the Supreme Court’s holding as to the ineffectiveness of counsel claim is correct, the Court may have overstepped its bounds when it made a factual determination regarding the testimony of Crenshaw’s female friend. The motion court found the friend’s testimony was not credible and determined that Crenshaw was not prejudiced by her failure to testify because “the jury was likely to believe her alibi testimony was perjured.”[25] On transfer, the Supreme Court affirmed that decision and held the evidence sufficient to support such a finding.[26] While it is important to recognize the difficulty in determining whether an action of a defendant’s counsel is prejudicial, a motion court should not invade the province of the jury by unilaterally judging the credibility of testimony.

- Robert J. Morrison

[1] No. SC88584 (Mo. 2008) (en banc). The West reporter citation is Crenshaw v. State, 266 S.W.3d 257 (Mo. 2008) (en banc).
[2] Id.; The Court ruled a month prior to the instant decision on this issue. See McFadden v. State, 256 S.W.3d 103 (Mo. 2008) (en banc).
[3] Id. at *1-*3.
[4] See Edgington v. State, 189 S.W.3d 703, 706 (Mo. Ct. App. 2006).
[5] Barnett v. State, 103 S.W.3d 765, 773-74 (Mo. 2003) (en banc).
[6] See McFadden, 256 S.W.3d 103.
[7] Crenshaw, 2008 WL 2929806, at *2; see also Mo. R. Crim. P. 29.15(k) (“An order sustaining or overruling a motion filed under the provisions of this Rule 29.15 shall be deemed a final judgment for purposes of appeal by the movant or the state.”) (emphasis added).
[8] Crenshaw, 2008 WL 2929806, at *2.
[9] Id.
[10] State v. Brooks, 960 S.W.2d 479, 497 (Mo. 1997) (en banc).
[11] Strickland v. Washington, 466 U.S. 668, 694 (1984).
[12] Id.
[13] State v. Norfolk, 807 S.W.2d 105 (Mo. Ct. App. 1990).
[14] Crenshaw, 2008 WL 2929806, at *3.
[15] Id.
[16] See Mo. Rev. Stat. §§ 217.450 & 217.460 (2004).
[17] Crenshaw, 2008 WL 2929806, at *3.
[18] Id.
[19] Id.
[20] Id.
[21] McFadden, 256 S.W.3d at 108. In McFadden, the Supreme Court noted its reluctance to impose remedies for abandonment. Id. However, the fact that Crenshaw was not even represented by counsel after the trial stage of the proceedings against him gave the motion court more than enough cause to find abandonment in this case.
[22] Crenshaw, 2008 WL 2929806, at *1.
[23] Barnett, 103 S.W.3d at 773-74.
[24] Crenshaw, 2008 WL 2929806, at *3.
[25] Id.
[26] Id.