Tuesday, June 15, 2010

Vaca v. Missouri[1]

Opinion handed down June 15, 2010
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that a criminal appellant’s defense counsel was constitutionally ineffective during the sentencing phase of a trial when he failed to consider calling a mental health expert to testify even though the counsel was apprised of the jury’s interest in appellant’s mental condition during the guilt phase. The court additionally held that the defense strategy of linking the defendant to a fourth robbery for which he had not been charged was reasonable, and, therefore, defense counsel was not constitutionally ineffective on this point. The court determined that appellant’s motion for post-conviction relief should have been granted in part. Ultimately the judgment was upheld in part, remanded in part, and reversed in part.

I. Facts and Holding

Miguel Vaca “committed three armed robberies in Platte County in October and November 2002.”[2] In each case, he employed the same method of robbery: he wore a ski mask, rode his bicycle from his apartment to the target location, and carried a Taurus revolver.[3] The police deduced Vaca’s mode of operation, arrested him, and confiscated evidence that linked Vaca to the robberies, including the ski mask and bicycle.[4]

A. Pretrial Events

After the defense counsel visited Vaca at the county jail, he learned that the county jail psychiatrist suspected that Vaca was suffering from a mental illness and had prescribed a regimen of drugs for depression, panic attacks, and schizophrenia.[5] Vaca’s counsel then summoned a clinical and forensic psychologist, Dr. Bill Geis, to determine whether Vaca was competent to stand trial and whether he suffered from diminished capacity.[6] Dr. Geis conducted a battery of psychological exams.[7] He reviewed Vaca’s history and determined that Vaca suffered from life-long schizophrenia, which “could have had an impact on his ability to form rational thought and conform his behavior to the expectations of society at the time of the offense.”[8] Dr. Geis also concluded that Vaca suffered from a low intelligence condition called borderline intellectual functioning “that could have affected his ability to understand the impact of his actions.”[9] Both Dr. Geis and the defense vaguely recalled that they had discussed Dr. Geis’ psychological report on Vaca.[10]

B. The Guilt Phase

Vaca’s trial was bifurcated in accordance with Missouri’s “newly codified procedure for non-capital cases.”[11] The court described Vaca’s defense counsel as an experienced trial advocate who was conducting his first bifurcated non-capital case.[12] The defense counsel attempted to prove that the prosecution had the wrong defendant by introducing evidence of a fourth robbery for which Vaca had not been charged.[13] Although police had initially believed Vaca might have committed that robbery, they later determined that the robbery was unrelated when fingerprints at the scene did not match Vaca’s.[14]

The prosecution preemptively excluded any evidence regarding Vaca’s mental condition by “arguing that defense counsel failed to notify the State of his intention to introduce such evidence.”[15] Defense counsel neither called Dr. Geis nor submitted his psychological report into evidence.[16] During deliberations in the guilt phase, the jury sent four questions to the court: “1) Where has [Vaca] been since arrested 11-2002; 2) Was [Vaca] given psychological testing; 3) Had he been compliant with medications before arrest; 4) Is he currently on meds.”[17] The court did not respond to the jury’s questions, and Vaca subsequently was convicted on all charges.[18]

C. Sentencing Phase and Post-Trial Motions

Dr. Geis did not testify, and his report was not entered into evidence during the sentencing phase either.[19] The jury sentenced Vaca to life imprisonment plus 102 years, which were to run consecutively.[20] At this point, defense counsel filed a motion for a new trial.[21] During the subsequent hearing, “defense counsel asked the court to set aside the sentences based in part on a pre-sentence investigation report.”[22] This document referenced Dr. Geis’ report stating that Vaca has suffered from life-long psychological disorders.[23] The trial court did not modify the sentence, and the sentence was affirmed on appeal.[24]

D. Post-Conviction Proceeding and Appeal

Vaca brought a Rule 29.15 motion for post-conviction relief, arguing that he had ineffective assistance of counsel.[25] During the proceeding for post-conviction relief, Dr. Geis stated that he had been available during the sentencing phase “to testify and would have been able to expand” on his report and on Vaca’s mental illness.[26] Vaca’s original defense counsel, present at the proceeding, stated, “There was no strategic reason that I can recall for not calling Dr. Geis at sentencing.”[27] The trial court overruled the motion for post-conviction relief – it is from this ruling that Vaca appealed.[28]

II. Legal Background

A. Points on Appeal

Vaca raised two points on appeal. First, he claimed that his defense counsel was ineffective for eliciting evidence of the fourth uncharged robbery during the guilt phase.[29] Second, he claimed his defense counsel was ineffective for failing to consider calling Dr. Geis to testify and failing to enter his report into evidence during the sentencing.[30]

B. Standard of Review

The standard of review for this case was “clearly erroneous” review.[31] Under this standard, “the motion court’s findings are presumed to be correct.”[32] The motion court’s judgment can be overturned only when its findings of fact or its conclusions of law are so clearly erroneous so that Supreme Court of Missouri has the “definite and firm impression that a mistake has been made.”[33]

C. Ineffective Assistance of Counsel

The test to show ineffective assistance of counsel is two-pronged.[34] First, the appellant must show his representation “’fell below an objective standard of reasonableness’.”[35] Second, the appellant must show ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,’ which is a probability ‘sufficient to undermine confidence in the outcome.’[36]

D. Eliciting Evidence of the Uncharged Fourth Robbery was Reasonable Trial Strategy

Vaca’s overarching defense strategy in the guilt phase of his trial focused on the fourth uncharged store robbery.[37] The defense counsel presented the theory that the same assailant committed all four robberies and that the unmatched fingerprints from the fourth robbery were evidence of Vaca’s innocence.[38] Thus, the prosecution must have misidentified Vaca as the assailant when, in fact, someone else had committed the crimes.[39] That defense strategy fell apart when the police determined that the fourth robbery was an isolated incident, unrelated to the other robberies that had been linked to Vaca.[40] Vaca argued that it was unreasonable for his counsel to use that strategy because it resulted in prejudicing both the guilt and sentencing phases.[41]

The Supreme Court of Missouri responded that Vaca’s defense strategy obviously failed to persuade the jury but that counsel’s failure to persuade is not the standard for ineffective assistance of counsel.[42] During the post-conviction relief proceeding, the defense counsel testified that he had weighed the benefits and downfalls of employing the strategy during the guilt phase and whether it would adversely affect the sentencing phase.[43] Because the defense counsel had considered the strategy’s feasibility, the court concluded that the strategy could not be considered unreasonable; thus, Vaca was not entitled to post-conviction relief on that point.[44]

E. Counsel Was Ineffective as to the Treatment of Dr. Geis’ Testimony

Ineffective assistance can be demonstrated by showing that: “(1) trial counsel knew or should have known of the existence 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 produced a viable defense.”[45] Although the prosecution conceded the first three elements of Hutchinson applied in this case, it contended that the fourth element was unmet because the defense could have submitted Vaca’s mental health history as a viable defense strategy.[46]

The court noted that “the selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim.”[47] However, this applies only in situations “[w]here counsel has investigated possible strategies.”[48] In the present case, “defense counsel admitted that he gave no consideration to calling Dr. Geis and that there ‘was no strategic reason’ for not calling him,”[49] especially since the counsel noted Vaca’s mental instability upon meeting him and was aware that the jury had asked about Vaca’s mental condition during the guilt phase at trial.[50] Despite compelling reasons to call Dr. Geis to the stand, defense counsel could recall no specific reason for not including this testimony at the sentencing phase.[51]

The court found that “[c]ounsel’s inaction fell below an objective standard of reasonableness.”[52] The Majority reasoned that because it was defense counsel’s first bifurcated trial, he might have mistakenly believed that Vaca’s mental health history was excluded in the sentencing phase because it had been excluded in the guilt phase of the trial.[53] It held that failure to consider Dr. Geis as a witness was what constituted ineffective assistance of counsel in this case, not the mere failure to call him as a witness.[54] Finally, the court emphasized that Vaca’s future defense counsel must consider Dr. Geis’ possible testimony when deciding courtroom strategy.[55]

F. Dissent

The dissent argued that the standard for ineffective assistance of counsel was not fulfilled under Strickland standard[56] because the defendant must show that counsel’s deficient performance prejudiced the defense and that the prejudice was “definite and identifiable.”[57] The dissent asserted that the majority simply speculated that Dr. Geis’ testimony could have helped Vaca,[58] while conceding that a showing of mental illness could also have hardened the jury against Vaca.[59] Thus, the dissent argued, prejudice against Vaca was not definite.[60]

The dissent also argued that the majority mischaracterized the defense counsel’s statement during the post-conviction proceeding.[61] At that time, defense counsel stated that “[t]here was no strategic reason that I can recall for not calling Dr. Geis at sentencing.”[62] The dissent argued that failure to recollect a defense strategy for omitting Dr. Geis’ testimony is different from failing to consider Dr. Geis’ testimony.[63] The dissent concluded that Vaca failed to demonstrate prejudice that would have resulted in a different outcome.[64]

III. Comment

Vaca seems to indicate a loosening of the Strickland standard for demonstrating ineffective assistance of counsel in Missouri. As the dissent indicated, the court had previously allowed for ineffective assistance of counsel only when the movant could show “definite and identifiable” prejudice to his case, such as defense counsel’s failure to put a witness on the stand who would have buttressed the movant’s contentions.[65] However, in this case, the dissent described the prejudice to appellant Vaca as speculative when the majority conceded that Dr. Geis’ testimony wouldn’t necessarily have helped Vaca. In fact, the testimony could have hurt Vaca.[66]

Instead, the majority’s pivotal issue centered on the fact that the defense counsel had failed to consider calling Dr. Geis to the stand during the sentencing phase, even after learning that jury had explicitly inquired about Vaca’s mental health.[67] As the dissent argued, previous examples in which ineffective assistance of counsel was found included a failure by defense counsel to call a particular witness, not whether the defense counsel failed to consider a particular witness.[68] The dissent suggested that, although defense counsel could have had a strategic reason for not calling Dr. Geis to the stand during the sentencing phase, counsel’s key problem was that he could not remember this strategic reason. According to the dissent, that scenario is vastly different from failing to consider Dr. Geis possible testimony at all.

This case bodes well for defendants, who may find it easier to argue that they received ineffective assistance of counsel, since the “failure to consider”[69] strategy seems to be an amorphous standard. The problem is that Vaca changes the Strickland standard of prejudice from “definite and identifiable”[70] to something speculative. This standard is essentially no standard. Instead of requiring the defendant to show that defense counsel failed to act; this new standard essentially requires the defendant to show that defense counsel failed to think. Thus, the modified Strickland standard allows the defendant to get a second bite of the apple, with a possibly more lenient outcome.

-Linda Man

[1] 314 S.W.3d 331 (Mo. 2010) (en banc).
[2] Id. at 332.
[3] Id.
[4] Id.
[5] Id. The drug regimen prescribed by county psychiatrist was Trazadone, Paxil, Clonazepam, and Zyprexa. Id.
[6] Id.
[7] Id.
[8] Id. at 333.
[9] Id.
[10] Id.
[11] Mo. Rev. Stat. § 557.036 (Supp. 2008).
[12] 314 S.W.3d at 333.
[13] Id.
[14] Id.
[15] Mo. Rev. Stat. § 552.030.2, Supp. 2008.
[16] 314 S.W.3d at 333.
[17] Id.
[18] Id.
[19] Id. at 334.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id. (citing Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005)).
[32] Id. (citing Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009)).
[33] Id.
[34] Id. at 335.
[35] Id. (citing Edwards v. State, 200 S.W.3d 500, 518 (Mo. banc 2006) quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id. at 335-36 (referencing Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004)).
[46] Id. 336.
[47] Id. (citing Williams v. State, 168 S.W.3d at 443 (Mo. banc 2005)).
[48] Id. (citing Middleton v. State, 103 S.W.3d 726, 736 (Mo. banc 2003) (emphasis added in opinion)).
[49] Id.
[50] Id.
[51] Id.
[52] Id.
[53] Id.
[54] Id. at 337.
[55] Id.
[56] Id.
[57] Id.
[58] Id.
[59] Id.
[60] Id.
[61] Id. at 338.
[62] Id.
[63] Id.
[64] Id. at 337-38.
[65] Id.
[66] Id at 337.
[67] Id. at 332.
[68] Id. at 337-38.
[69] Id. at 337.
[70] Id.