Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri held that a defendant received ineffective assistance of counsel during the penalty phase of his trial.[2] Counsel failed to present evidence of sexually explicit material on the computer of the victim, evidence which should have been used by the defense to rebut the state’s evidence of the victim’s good character.[3] Although the state gave defense counsel a report detailing the contents of the victim’s computer, defense counsel did not diligently review the report and failed to recognize the sexually explicit file names listed in the report.[4] A reasonably competent attorney would also have interviewed the investigator who had knowledge of the contents of the computer.[5] This deficient performance prejudiced the defendant because, had the jury heard an alternative description of the victim, the jury may have decided that death was not the proper punishment for the defendant.[6] The court reversed and remanded the judgment as to the penalty phase.[7]
Gill was convicted of first degree murder in the death of Ralph Lee Lape, Jr. in 2002.[8] In addition to murdering Lape, Gill and a co-defendant used the victim’s ATM card and computer to transfer and withdraw money from the victim’s bank account.[9] The computer was found with Gill when he was arrested, and this fact was placed in the probable cause statement prepared by Lt. David James.[10] Lt. James also prepared a report detailing the file folders and instant message records found in the computer, and, approximately one month before trial, the prosecutor sent a copy of the report to defense counsel.[11] Some of the file names listed in the report contained words or phrases with sexual connotations.[12] Gill’s counsel reviewed the report and discussed the report with the prosecutor but decided not to focus on the contents of the computer.[13] During the penalty phase of the trial, the prosecutor presented family members who testified about how the victim’s death had affected their lives and that the victim was a person of good character.[14] This testimony included the victim’s daughter regretting that her father would never see her go to college or get married, his sister describing how generous he was with his money, and his brother-in-law describing the values by which the victim professed to live.[15] The jury recommended a sentence of death and Gill’s conviction was affirmed on appeal.[16]
However, at the Rule 29.15 hearing, Lt. James testified that a few days after writing his report he became aware of pornography on the victim’s computer.[17] The sexually explicit material included instant message conversations referencing sex with underage girls and bestiality content.[18] Although Lt. James knew of the illicit content before Gill’s trial, he did not make the information known to either the defense or state until after Gill’s trial because he did not believe it was relevant.[19] In fact, Lt. James only disclosed the presence of the explicit materials when counsel for Gill’s co-defendant asked him whether there was any child pornography on the victim’s computer.[20] Gill’s trial counsel also testified at the hearing that, in retrospect, some of the file names listed on Lt. James’ report should have alerted the defense to the computer’s sexual contents.[21] Regardless of these facts, the motion court denied Gill’s Rule 29.15 motion, and he appealed to the Supreme Court of Missouri.[22]
Gill argued that he received ineffective assistance of counsel when his attorneys failed to discover the child pornography on the victim’s computer.[23] He asserted that there were two ways the evidence could have been used in the penalty phase: to either rebut the state’s characterization of the victim as a “saint” or to discourage the state from using character evidence at all.[24] The court stated that two prongs must be satisfied in order to show ineffective assistance of counsel sufficient to overturn a death sentence.[25]
First, counsel’s performance must be deficient in that it falls below an objective standard of reasonableness and overcomes the presumption that the performance was reasonable.[26] Because the state introduced testimony about the victim’s character during the penalty phase, the defense should have presented evidence of the child pornography found on the victim’s computer as a rebuttal.[27] However, although they had Lt. James’s report in front of them, defense counsel failed to investigate the computer’s contents and had not discovered this evidence.[28] The court found that a reasonably competent attorney would have recognized that the file names in the report indicated sexually explicit material and investigated further.[29] Additionally, a reasonably competent attorney would have interviewed Lt. James, learned of the computer’s contents from him, and used that information to rebut the state’s character evidence during the penalty phase.[30] Because Gill’s counsel failed to act as a reasonably competent attorney, the performance was deficient, and the first prong of the ineffective assistance of counsel test was met.
Second, it must be demonstrated that, but for the deficient performance, the jury would have recommended life imprisonment instead of death.[31] If counsel’s performance had not been deficient, the defense may have been able to dissuade the state from introducing character evidence at all.[32] Alternatively, if the victim’s family did testify to the victim’s character, the evidence of child pornography on the victim’s computer could have been used to rebut the characterization of the victim as a model human being.[33] There is a good possibility that, with that information, the jury might have determined that death was not the proper punishment for the defendant.[34]
The Supreme Court of Missouri held that, because the performance of Gill’s counsel was deficient and because the deficient performance prejudiced Gill, Gill had received ineffective assistance of counsel during the penalty phase.[35] The judgment as to the sentence was reversed and remanded, while the guilty determination was affirmed.[36]
II. Legal Background
The Sixth Amendment right to counsel includes the right to “effective assistance of counsel.”[37] Missouri Supreme Court Rule 29.15 is the exclusive remedy for any person making a post-conviction claim of ineffective assistance of counsel.[38] In cases where a death sentence has been imposed, reversal requires two showings: that counsel’s performance was deficient and that the deficient performance prejudiced the defendant.[39] Counsel’s performance should be evaluated against an objective standard of reasonableness using norms of the legal profession as a standard that must be met.[40] In judicial evaluation of counsel’s performance, the reviewing court should be highly deferential.[41] There is a presumption that counsel’s performance was effective and reasonable.[42] Additionally, the choice of one trial strategy over another does not constitute ineffective assistance of counsel.[43] When a sentence of death is imposed, prejudice is suffered when there is a reasonable probability that, but for counsel’s deficient performance, the jury would have determined that, when balancing the mitigating facts and circumstances, a sentence of death was not warranted.[44] In the instant case, defense counsel’s deficient performance stemmed from failing to recognize or investigate whether there was useful evidence found on the victim’s computer and failing to question Lt. James about the computer’s contents. The nature of the material ensured that Gill was prejudiced by its non-discovery; there is little doubt that telling the jury that the victim’s computer contained child pornography may have influenced the jury in deciding whether Gill deserved to die for killing the victim.
III. Comment
In a capital case, the primary goal for defense counsel should be to prevent the execution of the client. Evidence of child pornography on the victim’s computer is exactly the kind of evidence that counsel should immediately begin looking for in a capital case. Although there is no guarantee that evidence rebutting the victim’s good character will even be admitted, the stakes involved are too high to relegate such investigation to the back burner. In all capital cases where the victim may have dark secrets, it may be good practice to set a minimum number of hours that must be spent investigating the victim’s character.
-Neil D. Fossum
[1] Gill v. State, 300 S.W.3d 225 (Mo. 2009).
[2] Id. at 228.
[3] Id.
[4] Id. at 233.
[5] Id.
[6] Id. at 234.
[7] Id. at 234-35.
[8] State v. Gill, 167 S.W.3d 184, 187 (Mo. banc 2005). Gill was also convicted of armed criminal action, kidnapping, first degree robbery, and first degree tampering. Id.
[9] Id. at 187-88.
[10] Gill v. State, 300 S.W.3d 225, 228 (Mo. 2009).
[11] Id.
[12] Id.
[13] Id.
[14] Id. at 228-29.
[15] Id at 229. In fact, the victim had allowed Gill to live in a camper trailer on his property as a favor to a friend. State v. Gill, 167 S.W.3d 184, 187 (Mo. banc 2005).
[16] State v. Gill, 167 S.W.3d 184, 193 (Mo. banc 2005).
[17] Gill v. State, 300 S.W.3d 225, 229 (Mo. 2009).
[18] Id. A computer analyst testified at the Rule 29.15 hearing that there were also images of underage girls on the computer. Id.
[19] Id.
[20] Id.
[21] Id. at 233.
[22] Id. at 227.
[23] Id. at 231.
[24] Id.
[25] Id. at 232 (citing Strickland v. Washington, 266 U.S. 668 (1984)).
[26] Id.
[27] Id. at 233.
[28] Id.
[29] Id.
[30] Id.
[31] Id. at 232.
[32] Id. at 233-34.
[33] Id. at 234.
[34] Id.
[35] Id.
[36] Id. at 234-35.
[37] Strickland v. Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).
[38] Mo. R. Crim. P. 29.15(a).
[39] Strickland v. Washington, 466 U.S. 668, 687 (1984).
[40] Id. at 687-88.
[41] Id. at 689.
[42] Worthington v. State, 166 S.W.3d 566, 573 (Mo. 2005) (citing Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001)).
[43] Id. (citing Clayton v. State, 63 S.W.3d 201, 207 (Mo. banc 2001)).
[44] Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009) (citing State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997)).
