Perry v. State

PHILLIP R. GARRISON, Chief Judge,

concurring.

I concur with the result reached in the principal opinion, but write separately to express some of my reasons for doing so. As noted in the principal opinion, a movant is required to show both deficient performance and prejudice to be entitled to relief under a claim for ineffective assistance of counsel. Courts are not required to consider both prongs of the test; if a movant fails to satisfy one of them, the court need not consider the other. State v. Clements, 849 S.W.2d 640, 646 (Mo.App. S.D.1993). Such a claim may be denied if there is no showing of prejudice. Sanders v. State, 738 S.W.2d 856, 857 (Mo. bane 1987).

In his first point of error, Movant alleges that Mr. Wampler was ineffective by arranging the January 4, 1993 and January 7, 1993, interviews, and by leaving the latter interview before its conclusion. As I understand the record, Movant had met with authorities twice prior to Mr. Wam-pler being retained to represent him. In the first interview, on January 2, 1993 (the day of the murder), Movant told the police that he had found his grandfather lying in a pool of blood upon his return to the home. He specifically denied involvement in the death. The next day, he gave another statement in which he related factual statements which were inconsistent with facts otherwise learned by the police. Apparently after the second statement, Mov-ant admitted to his uncle, a detective with the Oklahoma City Police Department, that he had accidentally killed his grandfather. Thereafter, Movant, with his parents, went to Mr. Wampler’s office and retained him to represent Movant. Mov-ant then told Attorney Wampler that he had accidentally killed his grandfather, a story which he then told authorities in the statement on January 4, 1993. Movant knew, at that time, that he had shot his grandfather twice in the head, once from the back and once in the forehead at close range. Mr. Wampler, however, was not apparently aware of these facts at that point. Nevertheless, the motion court found that Mr. Wampler did advise against the January 4, 1993 interview. The record here indicates that prior to that interview, Movant’s uncle had already informed the *863police that Movant had admitted accidentally shooting his grandfather. The police, therefore, were already in possession of that information prior to that interview.

It was not until January 6, 1993, that Movant informed Mr. Wampler that he had, in fact, intentionally shot his grandfather. At that point in time, the authorities were in possession of, or would shortly come into possession of, information indicating that the shooting had not been accidental. Included in this information was the autopsy report revealing that his grandfather had been shot twice in the head, from different directions. The motion court concluded that Mr. Wampler’s strategy, after learning the truth, was to try to convince the authorities to leave Movant in the juvenile justice system rather than certifying him for trial as an adult.

In my view, the motion court correctly concluded that once Movant made the January 4, 1993, statement to authorities claiming that he had accidentally killed his grandfather, his legal position was indefensible. The motion court concluded that this statement was against the advice of Mr. Wampler, but was also given at a time when the authorities had already been informed that Movant had at least admitted an accidental shooting. The motion court also noted that the physical facts were inconsistent with an accidental shooting, and that once Movant admitted to the authorities that he was the force behind the killing, his factual defense was impossible. Accordingly, the motion court concluded that the January 7, 1993, statement to police did not affect the outcome of this case. I agree with these conclusions and concur as to this point for the reason that no prejudice has been demonstrated.

I also write separately concerning the contention that the motion court erred in denying relief because Mr. Wampler disclosed confidential attorney-client communications to the prosecutors. In my view, the compelling response to this point also has to do with the lack of prejudice in that the prosecutors already had in their possession all of the information which Mr. Wampler could have revealed. I do not intend to minimize or indicate approval of the meeting itself. I simply do not believe that prejudice has been demonstrated in the context of entitlement to relief under Rule 29.15.

I concur with the result reached in the principal opinion.