Link to Mo. Sup. Ct. Opinion
Ineffective assistance of counsel claims are a fairly common part of criminal appeals and are present in nearly all capital appeals. In the instant case, the Supreme Court of Missouri held that all five of petitioner’s claims were without merit, either because counsel was not deficient, or if he was, that petitioner was not prejudiced by the deficiency, thus once again reaffirming the large burden that a movant carries in an ineffective assistance of counsel claim.
I. Facts and Holding
In 1995, Ernest Lee Johnson was convicted of three counts of first degree murder for the murders of three Casey’s convenience store employees and sentenced to death for each murder. Following his original conviction and sentencing, Johnson’s case was remanded for a new penalty phase twice. During his third penalty phase proceeding, Johnson called a variety of witnesses to testify about the effects that his cocaine use might have had on him at the time of the murders at issue. Two of these witnesses, a psychologist and another doctor, also testified that Johnson is mentally retarded and that his condition suggests fetal alcohol syndrome. After his third penalty phase proceeding, in which the jury again recommended three death sentences, Johnson filed a Rule 29.15 motion for post-conviction relief. The motion court overruled the motion, and Johnson appealed to the Supreme Court of Missouri.
Johnson raised five points on appeal regarding his claim of ineffective assistance of counsel. First, Johnson claimed that his attorney should not have called Dr. Keyes as a witness, knowing that he was unprepared, unqualified, and incredible. Second, Johnson claimed that his attorney was ineffective because he should have presented evidence that Rod Grant, who was also present at the time of the murders, was the mastermind behind the crime and that Johnson was acting under Grant’s domination. Third, Johnson claimed that his counsel was ineffective due to his failure to offer into evidence the deposition of Dr. Bernard, who had evaluated Johnson prior to his first post-conviction hearing, as well Johnson’s mother’s mental health records.
Fourth, Johnson claimed that his counsel should have moved to exclude portions of a videotaped evaluation done by Dr. Heisler, the state’s mental examiner, on the grounds that Johnson was not properly advised of his Miranda rights before the evaluation and was improperly questioned about the commission of the crime during the evaluation. Fifth, Johnson claimed that his counsel was ineffective because he failed to object to the prosecutor’s use of the statements of Dr. Kline, who evaluated Johnson’s competency to proceed to trial, and that he was prejudiced because of references made to Dr. Kline’s opinion that he was not mentally retarded.
In his final point on appeal, he argued that the motion court erred in denying his claim that the death penalty is imposed both arbitrarily and capriciously in Boone County, claiming that Boone County prosecutors seek the death penalty in more cases than prosecutors in other counties.
The Supreme Court of Missouri denied all six of Johnson’s points on appeal and affirmed the motion court’s denial of his motion for post-conviction relief. With regard to his five ineffective assistance of counsel claims, the majority concluded that Johnson’s counsel was not ineffective. Further, the majority quickly dismissed Johnson’s argument regarding the imposition of the death penalty in Boone County because he failed to preserve the claim for appellate review, as he had not raised such reasoning in his post-conviction motion.
II. Legal Background
A. Ineffective Assistance of Counsel
In order to make a successful showing of ineffective assistance of counsel, a movant must show that “counsel’s performance ‘did not conform to the degree of skill, care, and diligence of a reasonably competent attorney’ and that the movant was thereby prejudiced.” Further, in order to show prejudice, a movant must prove that there is a reasonable probability that the outcome would have been different but for counsel’s deficient performance. Finally, there is a presumption that the attorney acted professionally in making decisions and that his challenged actions were legitimate trial strategy.
With regard to Johnson’s first argument under his ineffective assistance of counsel claim, the majority concluded that it was not deficient for his attorney to call Dr. Keyes. The court noted that, in Goodwin, it did not hold that Dr. Keyes was per se incredible or unreliable. It had found Dr. Keyes unreliable and insufficient to provide relief as to the particular facts in Goodwin, not as to any testimony from Dr. Keyes generally.
As to Johnson’s second argument regarding ineffective assistance of counsel, the majority concluded that his attorney’s decision not to present evidence during the penalty phase that Rod Grant had orchestrated the offense was a matter of sound trial strategy. Johnson’s attorney had testified that it was a strategic decision to only focus on Johnson’s mental retardation during the penalty phase rather than bring in evidence relating to the guilt phase. Therefore, the court noted that “ineffective assistance of counsel will not lie when the conduct ‘involves the attorney’s use or reasonable discretion in a matter of trial strategy.’”
In his third argument under ineffective assistance of counsel, Johnson claimed that Dr. Bernard’s deposition, in which he stated that he believed Johnson was mentally retarded, should have been admitted based on the court’s holding in Hutchinson v. State. In Hutchinson, the majority held that trial counsel was ineffective because he failed to “follow up on information in their expert’s report, fail[ed] to investigate the defendant’s medical, educational, family, and social history, and for failing to present the available evidence about his emotional and intellectual impairment.” The result of these failures was that the jury did not hear a great deal of significant evidence.
The majority in the instant case distinguished Johnson’s situation from that of the defendant in Hutchinson, noting that in the instant case, Dr. Bernard’s deposition regarding Johnson’s mental retardation did not provide any new mitigating evidence that would have aided the jury in its decision. Further, regarding counsel’s failure to admit his mother’s medical records, the majority concluded that aside from whether or not the attorney’s actions were deficient, the defendant was not prejudiced by this omission because the records would have been cumulative to the evidence that was already admitted concerning his mother’s alcohol use during pregnancy.
The majority found meritless Johnson’s fourth argument that counsel was ineffective due to a failure to object to Dr. Heisler’s videotaped evaluation of Johnson. The court reasoned that it was reasonable trial strategy to not object to the videotape, as it supported the defense’s claim that Johnson is mentally retarded. Furthermore, the court noted that any objection would have been meritless because Johnson put his mental condition at issue at the time of the evaluation and thus he had waived his privilege against self-incrimination with regard to the evaluation.
The court also found Johnson’s fifth and final ineffective assistance of counsel argument, regarding counsel’s failure to object to the use of Dr. Kline’s testimony, to be meritless. It reasoned that the evidence was admissible and thus any objection by defense counsel would have been unsuccessful.
B. Arbitrary and Capricious Imposition of the Death Penalty
When considering Johnson’s claim that the death penalty is imposed arbitrarily and capriciously in Boone County, the court concluded that Johnson had not preserved that claim for appellate review because he had argued the point using different reasoning in his post-conviction motion than he used before the Supreme Court of Missouri.
The Supreme Court of Missouri’s decision in the instant case once again demonstrates how difficult it is for a movant to have success in an ineffective assistance of counsel claim. Further, this case also demonstrates how high the stakes are in capital cases. In the instant case, Johnson raised a variety of complaints in terms of what his attorney had failed to do; however, the majority still denied these claims because no prejudice resulted from them. The unfortunate result is that attorneys who are otherwise deficient are able to avoid accountability as long as their conduct does not prejudice their clients.
Furthermore, the stakes in a capital case are arguably the highest of any of the cases in the criminal justice system. A great of example of this is the fact that, by the time the instant case got to the Supreme Court of Missouri, the case had already been remanded twice for new penalty phases. Therefore, it is important that courts are cognizant of the high stakes presented by capital cases and are especially diligent in ensuring that capital defendants receive effective assistance of counsel. Unlike all other criminal cases, once a capital defendant’s sentence is executed, there is no going back to fix errors that may have caused a faulty result.
-Lindsay A. Ponce
 No. SC90582 (Mo. March 1, 2011) (en banc), available at http://www.courts.mo.gov/file.jsp?id=44944. The West reporter citation is Johnson v. State, 333 S.W.3d 459 (Mo. 2011) (en banc).
 Id. at *1.
 Id. at *2.
 Id. In Goodwin v. State, Dr. Keyes testified for the defense during a post-conviction relief hearing that Goodwin was mentally retarded; however, the Supreme Court of Missouri held that his testimony was insufficient to support a holding that the motion court had erred in finding that Goodwin was not mentally retarded. 191 S.W.3d 20 (Mo. 2006) (en banc). Johnson claimed in the instant case that his attorney should have known that Dr. Keyes was not a credible witness based on Goodwin. Id. at *3.
 Id. at *5.
 Id. at *6.
 Id. at *7.
 Id. at *8.
 Id. at *10.
 Id. at *2-10.
 Id. at *2-9.
 Id. at *10. In Johnson’s post-conviction motion he only argued that the death penalty was “randomly inflicted” in Missouri as a result of a lack of statutory guidelines or judicial decisions to narrow the amount of death penalty eligible cases. Id.
 Id. at *2 (citing State v. Hall, 982 S.W.2d 675, 680 (Mo. 1998) (en banc)).
 Id. at *2 (citing Hall, 982 S.W.2d at 681-682).
 Id. at *3.
 Id. at *5-6.
 Id. at *5.
 Id. at *6 (citing State v. Heslop, 842 S.W.2d 72, 77 (Mo. 1992) (en banc)).
 Id. at *6 (citing to Hutchinson v. State, 150 S.W.3d 292 (Mo. 2004) (en banc)).
 Id. (citing Hutchinson, 150 S.W.3d at 308).
 Id. at *7.
 Id. at *7-8 (citing Estelle v. Smith, 451 U.S. 454 (1981)).
 Id. at *8-9.
 Id. at *10.
 Supra note 17.
 Id. at *1.