author: MICHAEL A. WOLFF, Judge. STEPHEN N. LIMBAUGH, JR., Judge,

text:
    Brandon HUTCHISON, Appellant, v. STATE of Missouri, Respondent.
    No. SC 85548.
    Supreme Court of Missouri, En Banc.
    Dec. 7, 2004.

      Melinda K. Pendergraph, Office of the Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie M. Morrell, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   MICHAEL A. WOLFF, Judge.

INTRODUCTION

Brandon Hutchison was convicted of two counts of first-degree murder and sentenced to death. This Court affirmed the convictions on direct appeal. The court overruled Hutchison’s Rule 29.15 postcon-viction motion. On appeal, this Court, without addressing the other issues raised, remanded the postconviction motion for hearing on whether the state failed to reveal a plea agreement with the primary witness against Hutchison. After the hearing on remand, the court again denied relief. All issues raised by Hutchison relating to his postconviction motion are now before this Court.

The denial of relief as to the guilt phase of the trial, including the denial of relief on the state’s alleged failure to disclose a plea agreement with the primary witness against Hutchison is affirmed.

As to the penalty phase of Hutchison’s trial, however, this Court concludes that Hutchison’s trial attorneys were ineffective for failing to investigate and present evidence of his impaired intellectual functioning. Counsel have a duty under the United States Constitution to conduct a reasonable investigation and to present evidence of impaired intellectual functioning — evidence that is inherently mitigating — -in the penalty phase of a murder trial.

The judgment is affirmed as to the guilt phase of the trial. The judgment is reversed as to the penalty phase of the trial. Pursuant to Rule 84.14, a new penalty phase trial is ordered. The case is remanded.

BACKGROUND

Hutchison, Michael Salazar and Freddy Lopez were charged with first-degree murder for their participation in the murders of Brian and Ronald Yates after a New Year’s Eve party at Lopez’s home on December 31, 1995. Salazar shot and severely wounded the Yates brothers at Lopez’s home. Salazar, Lopez and Hutchison then transported the victims in the trunk of Lopez’s car to another location, where Salazar and Hutchison removed the victims from the trunk and Hutchison fatally shot the victims using Lopez’s gun. The bodies were left by the side of the road. Hutchison and Salazar fled to California where they were apprehended several days later.

Hutchison and Salazar were tried and convicted of first-degree murder in separate trials, and Lopez pled guilty to second-degree murder. Hutchison was tried first and was sentenced to death for his role in the murders. Freddie Lopez was the State’s main witness against Hutchi-son. Salazar was tried after Hutchison and was sentenced to life in prison without parole. Lopez did not testify at Salazar’s trial. Lopez was sentenced to ten years in prison.

Hutchison was represented at his trial by two attorneys who had no experience in defending murder cases and who had never tried a capital case. They spent nearly the entire time before trial preparing for the guilt phase and virtually no time preparing for the penalty phase. Hutchison’s trial counsel retained only one expert, who had no independent knowledge of Hutchi-son. Hutchison’s parents paid for his trial defense and could not provide extra money for experts and other discovery expenses. Hutchison’s attorneys did not investigate Hutchison’s life history or obtain any records documenting his troubled background and his mental and emotional deficits.

Before, during and after Hutchison’s trial, Lopez’s attorney and the prosecutor had discussions about a plea agreement in exchange for Lopez’s testimony. After Hutchison’s trial, the prosecutor extended a formal offer to Lopez, agreeing to reduce the charges from first-degree to second-degree on each count and ten years for armed criminal action, for a total of 30 years. Lopez rejected the offer, and the state prepared to go ahead with a trial and to seek the death penalty against Lopez.

Lopez fired his attorney and hired a well-known criminal defense firm after his sister won a large cash prize in the California lottery. One of Lopez’s new criminal case co-counsel contacted an attorney to negotiate a wrongful death settlement with the 'victims’ family. The settlement called for the family to recommend to the state that Lopez receive no more than a ten-year sentence in exchange for a cash payment to the family of $200,000.00 plus $30,000.00 in attorneys’ fees. Lopez pled guilty to two counts of second-degree murder. At the plea hearing, sentencing was continued until after the money was deposited into the victims’ family’s trust account. With the state’s consent, and at the recommendation of the Yates family, Lopez was sentenced to two ten-year terms to be served concurrently.

The court overruled Hutchison’s Rule 29.15 motion after a lengthy evidentiary hearing on all but two claims. The court did not allow Hutchison to present evidence to support his claims that the State failed to reveal a plea bargain with Lopez during the trial and that Lopez’s payment to the victims’ family inappropriately resulted in a lenient sentence. After hearing other evidence, the court also denied relief on Hutchison’s claim that his trial counsel was ineffective for failing to investigate and present evidence of his impaired intellectual functioning.

On remand, the court again denied relief. The court found that the plea agreements did not violate any of Hutchison’s constitutional rights. The court held that the state did not make a formal offer of a plea until after the trial and that the prosecutor and the court were not involved in the civil settlement in which Lopez paid the victims’ family in exchange for the family’s recommendation of a lenient sentence.

THIS APPEAL

Standard of Review

“This Court will uphold the findings and conclusions of the motion court unless they are clearly erroneous.” Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000); Rule 29.15(k). Findings and conclusions are “clearly erroneous” if, after reviewing the entire record, the court has the definite and firm impression that a mistake has been made. State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).

Points on Appeal

Hutchison presents 11 points of error in this appeal. Except for one point regarding penalty phase jury instructions, all of the points can be grouped generally into two main categories: error with regard to Lopez’s plea agreements and ineffective assistance of counsel for failing to conduct a reasonable investigation into Hutchison’s life history and to present evidence of his impaired intellectual functioning.

Jury Instructions

Hutchison claims that his attorneys were ineffective for failing to offer evidence challenging the penalty phase instructions even though they believed the instructions were incomprehensible and, thus, objectionable. Hutchison contends that jurors do not understand penalty phase instructions and that when jurors do not understand the instructions, they are more likely to impose death.

Claims of instructional error are beyond the scope of a Rule 29.15 motion for postconviction relief and are matters for direct appeal. State v. Shurn, 866 S.W.2d 447, 468 (Mo. banc 1993). Moreover, the motion court found that the study relating to jurors’ comprehension of Missouri approved death penalty instructions that Hutchison claimed his trial counsel should have offered was discounted by this Court in State v. Deck, 994 S.W.2d 527, 542-543 (Mo. banc 1999). The motion court held that counsel cannot be ineffective for failing to present evidence concerning a study that this Court has found to be unpersuasive. The court’s conclusion is not clearly erroneous.

Lopez’s Plea Agreements

Hutchison claims that the remand court erred in concluding that:

1) the plea agreement between Lopez and the victims’ family did not violate the Missouri Constitution and Hutchison’s state and federal constitutional rights;
2) the prosecutor did not mislead the jury by not acknowledging the ongoing plea discussions with Lopez;
3) trial counsel was not ineffective for failing to object to the prosecutor’s statements in closing argument that there were no plea deals; and
4) considering Lopez’s and Salazar’s sentences, Hutchison’s sentence is not disproportionate.

“Justice for Sale ?

“[JJustice shall be administered without sale, denial or delay.” Mo. Const, article I, section 14. Hutchison claims that the state’s agreement to a sentencing recommendation in exchange for Lopez making a substantial payment to the victims’ family was tantamount to “justice for sale” in violation of the Missouri Constitution and the United States Constitution.

Hutchison asserts that he received the death penalty not because he is the most culpable, but because he was the least able to afford justice and that evidence presented at the remand hearing proved this claim. As previously noted, after Hutchi-son was convicted, and before Lopez was tried, Lopez pled guilty to second degree murder after reaching an agreement with the victims’ family and with a recommendation by the prosecutor for a ten-year sentence. Under the settlement agreement entered into evidence at the hearing, Lopez would pay the victims’ family $230,000.00 if: the family recommended to the prosecutor that Lopez receive no more than ten years in prison and the judge actually sentenced Lopez to a prison term not to exceed ten years.

On its face, the agreement was contingent on actions of both the prosecutor and the judge in Lopez’s case. The prosecutor testified that he did not believe ten years was a just sentence, but he made the recommendation at the family’s request, so that they could get the money. The sentencing judge testified that he did not know the specifics of the agreement, but he was aware that there was an agreement that involved a payment to the family. The sentencing judge stated that he went along with the prosecutor’s recommendation because it was what the family wanted.

Despite this evidence, the court denied Hutchison’s claim and accepted the state’s position, characterizing Lopez’s payment to the family as a “settlement agreement in a friendly suit.” The court denied Hutchison’s claim of violation of the Missouri Constitution because it found that Hutchison did not prove any involvement by the prosecutor or the court in the civil settlement.

While victims may assert a right to be heard at sentencing, the sentencing decision is wholly within the discretion of the judge. A plea agreement may circumscribe the range of a judge’s discretion, but the judge retains the prerogative of rejecting the agreement by refusing to accept the plea. Rule 24.02(d). That, however, was not the case with Lopez, whose plea of guilt could have resulted in the maximum punishment under the statute. In this case the judge determined Lopez’s sentence within the range of punishment prescribed by statute.

The court also denied Hutchison’s equal protection claim, finding that Hutchi-son was not similarly situated to Lopez. The court found that it was significant that Lopez had cooperated with the police and that Lopez did not actually shoot the victims. Hutchison, by contrast, did not cooperate. Lopez testified that Hutchison was the one who fatally shot the victims. The motion court’s factual findings in denying Hutchison’s equal protection claim are not clearly erroneous.

The Initial Plea Offer During Trial

Hutchison claims that the jury was misled by Lopez’s testimony that the state was not making any deals and the prosecutor’s statement at closing argument that Lopez was still charged with first-degree murder and “didn’t get out of anything.” Lopez’s testimony minimized his involvement and portrayed Hutchison as the most culpable. Hutchison’s counsel tried to impeach Lopez by questioning him about what he was getting for his testimony. Lopez said his lawyer told him that the prosecutor was not giving any deals, that he was testifying only to clear his conscience and that he hoped he would get a deal. The prosecutor did not contradict this testimony, but referred to it in closing argument. Although the prosecutor and Lopez’s attorney had been trading offers, and Lopez understood that obtaining a deal depended on the state’s satisfaction with his testimony, the court was correct in finding that they had not actually agreed on a plea at the time of Lopez’s testimony.

As for the prosecutor’s statement in closing, although the prosecutor had indicated to Lopez’s counsel before and during trial that if Lopez testified favorably for the state the charges could be reduced from first to second-degree murder, there was no actual deal. “The State does not commit prosecutorial misconduct for failing to reveal information that did not exist at the time.” State v. Clay, 975 S.W.2d 121, 141 (Mo. banc 1998). The prosecutor’s conduct came perilously close to fostering the false impression that Lopez would get nothing for his testimony. But it was correct that there was no deal at the time of Lopez’s testimony. In fact, Lopez rejected the deal that was offered after Hutchison’s trial because he wanted an even lighter sentence. The findings and conclusions of the motion court are not clearly erroneous.

Hutchison claims his counsel was ineffective for failing to object at several points in the trial, including the prosecutor’s statement in closing argument that Lopez would receive no deal. The failure to object constitutes ineffective assistance of counsel only where the comment was of such a character that it resulted in a substantial deprivation of the accused’s right to a fair trial. State v. McRoberts, 837 S.W.2d 15, 23 (Mo.App.1992). In arguing ineffectiveness, a defendant must overcome a strong presumption that counsel’s performance was sound trial strategy. State v. Clay, 975 S.W.2d at 135.

As discussed above, the state did not have a completed agreement with Lopez during Hutchison’s trial. Thus, Hutchi-son’s trial counsel cannot be ineffective for failing to object to the prosecutor’s statement in closing argument that there was no agreement.

Hutchison’s claim with regard to the prosecutor’s statement in argument about the position of the bodies was raised in the direct appeal of his convictions. The Court found that the claim of error was not preserved and that no manifest injustice or miscarriage of justice resulted from the admission of the statement. State v. Hutchison, 957 S.W.2d at 764-765. Hutchison’s claim with regard to the late endorsement of a penalty phase witness was preserved and raised on direct appeal. The Court found that the trial court did not abuse its discretion by allowing the late endorsement. Id. at 764. Finally, the court denied Hutchison’s claim that his counsel was ineffective for failing to object when the prosecutor asked Dr. Bland during the penalty phase about his finding that Hutchison was competent to stand trial. The court found that counsel’s failure to object was reasonable trial strategy because counsel testified that he did not object because he did not want to appear to discredit his own witness. This conclusion is not clearly erroneous.

Hutchison also claims that his trial counsel were ineffective because they did not know how to preserve constitutional error for appellate review. The explanation trial counsel offered was that they made simple objections because they did not want to annoy the jury, and they thought this would be sufficient to preserve federal constitutional claims. Under the circumstances of this case, the court’s finding that counsel’s failure to object was reasonable trial strategy is not clearly erroneous.

Proportionality

Hutchison’s claims that this Court’s proportionality review is inadequate were rejected on direct appeal, and the same arguments have been offered and rejected by this Court in other cases. See Clay, 975 S.W.2d at 146.

Hutchison also claims that Lopez’s and Salazar’s sentences should have been considered as part of this Court’s proportionality review pursuant to section 565.035. Hutchison urges this Court to reexamine its holding in State v. Clay, 975 S.W.2d 121 (Mo. banc 1998), that “[a] co-actor’s plea agreements and convictions for crimes other than first degree murder are not to be considered in the proportionality review of a death sentence.” Id. at 146. Hutchison notes that the United States Supreme Court has held that co-actor’s sentences' may be considered in deciding whether a death sentence is disproportionate. Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), and Richmond v. Lewis, 506 U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992).

Proportionality review is appropriately done on direct appeal. State v. Ramsey, 864 S.W.2d 320, 328 (Mo. banc 1993). There is no need to re-visit the issue here.

Failure to Investigate Hutchison’s Life History and Present Evidence of His Impaired Intellectual Functioning

For a convicted defendant to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 690-691.

Hutchison’s counsel were overwhelmed, under-prepared and under-funded by the time they arrived at the penalty phase. They spent most of the available time preparing for the guilt phase of the trial, and as a result, the jury did not hear compelling evidence for mitigation in the penalty phase. Counsel knew that they needed to prepare for the penalty phase, but they left no time to prepare adequately and to present such evidence.

Prevailing professional standards for capital defense work require counsel to “discover all reasonably available mitigating evidence ...” Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). This includes “medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences.” Id. at 2537. Section 565.032.3 outlines miti-gators of extreme mental or emotional disturbance, extreme distress or domination by another, and substantial impairment of capacity to appreciate the criminality of his conduct or to conform it to the requirements of law.

Hutchison asserts his trial counsel were ineffective for:

1) failing to investigate and present evidence of his background, including school, medical, mental health and jail records and a psychiatrist who treated Hutchison for bipolar disorder, attention deficit hyperactivity disorder and alcoholism when he was a teen in California;
2) failing to adequately investigate his family history and to call family members as witnesses to testify about Hutchison’s mental problems during his troubled childhood;
3) failing to provide their expert with background materials and failing to follow up on the expert’s findings;
4) failing to call witnesses to testify to Lopez’s psychological domination of Hutchison;
5) failing to obtain a continuance to do a more thorough investigation of Hutchison’s life history and prepare the mitigation case; and
6) failure of the public defender’s office to provide sufficient funds to do a thorough investigation of Hutchison’s life history, in the postconviction proceedings.

Hutchison’s trial counsel requested a continuance to prepare a life history for penalty phase, including a trip to California, where Hutchison had spent most of his life. Trial counsel maintained that eight months was not enough time to prepare a capital case. The request was denied. Hutchison claims that the trial court abused its discretion in denying the continuance. The motion court found that trial counsel had sufficient time to prepare for both guilt and penalty phase and misallo-cated that time so that a continuance was not appropriate. Generally, claims of trial error are not cognizable in a postconviction motion. State v. Redman, 916 S.W.2d 787, 793 (Mo. banc 1996).

Hutchison also claims his appellate counsel was ineffective for not raising the issue of the denial of a continuance on appeal. At the motion hearing, Hutchison’s appellate counsel stated that it was difficult to win such claims on appeal where the standard is “abuse of discretion” and that it was his general practice not to raise such claims because of the limited chance of success. The motion court found that counsel’s decision to “winnow out” claims with little chance of success in favor of stronger points is a reasonable strategy.

To support a claim of ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error that would have required reversal had it been asserted and that was so obvious from the record that a competent and effective appellate lawyer would have recognized and asserted it. Moss v. State, 10 S.W.3d 508, 514 (Mo. banc 2000). The court’s finding that failure to pursue the claim of error with regard to the denial of a continuance is reasonable trial strategy is not clearly erroneous.

Hutchison was represented by private attorneys at his trial but he was represented by the public defender’s office throughout the postconviction and appellate proceedings. Hutchison claims that his postconviction counsel requested $15,000 from the public defenders’ office to investigate his life history but that they provided only about $7,500. Hutchison claims that he was denied due process because the state public defender failed to provide his counsel reasonable and necessary litigation expenses, such as money to investigate witnesses and records located in California where Hutchison, Lopez and Salazar grew up, in violation of Rule 29.16(d).

The court denied this claim because claims of ineffective assistance of postconviction counsel are categorically unreviewable. State v. Hunter, 840 S.W.2d 850, 871 (Mo. banc 1992). The court went on to note that Hutchison called several experts and many other witnesses during more than a week of testimony during the evidentiary hearing and that postconviction counsel spent over $27,000.00 on expert witness testimony alone in support of Hutchison’s postconviction motion. The court was not clearly eiToneous in denying this claim.

There was evidence in Hutchison’s background that his psychological and emotional deficits made him a “follower,” not a “leader.” The defense theory was that Salazar and Lopez, who had a history of criminal violations and were members of a violent Hispanic gang, were “running herd” over Hutchison. Lopez testified at trial that Hutchison was in control of the situation and made the decision to shoot the victims. Hutchison claims his trial counsel should have presented expert testimony regarding his physical, psychological and emotional deficiencies to rebut Lopez’s testimony and explain why he was not likely to have taken control and made the decision to kill the brothers. However, because trial counsel spent all of their time preparing for the guilt phase, they failed to investigate and present testimony in support of this theory. At the evidentiary hearing, five witnesses testified that Lopez and Salazar were “gang brothers” and that Lopez controlled Hutchison. Although Hutchison’s trial counsel actually spoke to two of these witnesses, counsel failed to elicit potential evidence for mitigation of duress from any of them at trial. The court also heard testimony from expert witnesses about Hutchison’s intellectual and emotional deficits that made him particularly susceptible to domination.

To prevail on a claim of ineffective assistance of counsel for failure to call a witness, a defendant must show 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.

State v. Harris, 870 S.W.2d 798, 817 (Mo. banc 1994).

Counsel’s decision not to call a witness is presumptively a matter of trial strategy and will not support a claim of ineffective assistance of counsel unless the defendant clearly establishes otherwise. State v. Clay, 975 S.W.2d at 143.

The court found that this testimony was unnecessary because gang evidence was presented at trial and that “follower” evidence was refuted at trial because the evidence presented — i.e., Lopez’s testimony — suggested that Hutchison was in control and made his own decisions. The court also found that any resulting prejudice was overcome by the negative information the state could have elicited from these witnesses so that the presumption of reasonable trial strategy was not overcome. Moreover, trial counsel was not even aware of two of these witnesses, so they could not be ineffective when they did not know their identity or the nature of their testimony. The court’s finding on this point is not clearly erroneous.

Readily available records that trial counsel admitted they did not attempt to obtain would have documented Hutchison’s troubled childhood, mental health problems, drug and alcohol addiction, history of sex abuse, attention deficit hyperactivity disorder, learning disabilities, memory problems and social and emotional problems. The court found that the absence of these documents did not prejudice Hutchi-son because the information in these background documents was cumulative or too remote in time to be relevant and in some cases it was actually detrimental to Hutch-ison. Therefore, counsel could not be ineffective for failing to investigate and obtain them to be offered into evidence.

“Virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances.” Tennard v. Dretke, - U.S. -, 124 S.Ct. 2562, 2570, 159 L.Ed.2d 384 (2004). Most of the facts that the court cited as detrimental, such as drug use and gun possession, were introduced at some point during the trial. The documents would not have added anything new that was unfavorable, but could have demonstrated to the jury the problems Hutchison had growing up and his intellectual and emotional deficits far more effectively than the rudimentary information actually presented during the penalty phase. See, Wiggins, 539 U.S. at 524-525, 123 S.Ct. 2527.

Trial counsel did not follow up on the few leads they had, such as the name of the psychiatrist who treated Hutchison during his teens, Dr. Parrish. Hutchison’s trial counsel were on notice that Hutchison had severe psychiatric problems, because their own expert, Dr. Lester Bland, told them about Dr. Parrish. They failed to contact Dr. Parrish. They knew Hutchi-son had been hospitalized, but they did not request the records. Dr. Bland told them Hutchison had an IQ of 76 and trouble at school, but they did not get school records. Dr. Bland also told them of emotional and sexual abuse, but they did not follow up. Hutchison’s trial counsel did not obtain readily available records showing mental illness, sexual abuse and impaired intellectual functioning. “In assessing the reasonableness of an attorney’s investigation, however, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 527, 123 S.Ct. 2527.

The court found that any information Dr. Parrish could have provided would be irrelevant because it was remote in time from the murders, and Dr. Parrish could not provide any opinion regarding Hutchi-son’s state of mind at the time of the crime. However, “[i]mpaired intellectual functioning has mitigating dimension beyond the impact it has on the ability to act deliberately.” Tennard, — U.S. at -, 124 S.Ct. at 2572. Moreover, records from remote time are useful to show that a claim of impaired intellectual functioning is not a recent discovery for the purpose of the defense.

The court also found that part of Dr. Parrish’s records would have been detrimental, such as notes about Hutchison skipping school and fighting when he was a teenager. Foregoing mitigation because it contains something harmful is not reasonable when its prejudicial effect may be outweighed by the mitigating value. The information about Hutchison’s troubled background and impaired intellectual ability contained in Dr. Parrish’s records would have provided significant evidence for mitigation not heard by the jury.

Finally, the court found that Dr. Parrish’s notes would not have assisted the jury because they were “illegible.”

Hutchison claims that trial counsel were ineffective for failing to adequately investigate his family background and present mitigating testimony from his family members. Hutchison asserts that his family members could have provided stronger mitigating information than the cursory testimony his parents provided at trial. At trial, Hutchison’s mother testified only briefly about his learning disability and placement in special education classrooms. His father testified briefly that his son did not deserve death. No other relatives testified. The additional testimony Hutchi-son’s parents and other relatives presented at the evidentiary hearing was not merely cumulative, as the motion court found. One glaring example of trial counsel’s failure is that Hutchison’s parents did not testify at trial that Hutchison was sexually abused as a child. His parents also did not testify at trial about Hutchison’s mental deficits or his family’s history of mental illness and alcohol and substance abuse.

Trial counsel talked to Hutchison’s brother but did not call him as a witness to testify about their childhood. Hutchison’s trial counsel did not talk to Hutchison’s aunt, uncle and cousin who were willing to testify about Hutchison’s childhood in California.

The court found that some of the family members who were not contacted were unfamiliar with Hutchison’s recent activities so their testimony was not relevant. Contrary to that court’s ruling, a defendant need not show a nexus between his mental capacity and the crime to admit such mitigating evidence. See, Tennard, — U.S. at -, 124 S.Ct. at 2573.

Specifically, the court found that trial counsel were not ineffective for not calling Hutchison’s brother because, as a matter of trial strategy, they decided he was not believable. The court also found that counsel was not ineffective for not presenting testimony regarding childhood sexual abuse because Hutchison’s mother wanted it to be kept private. In Wiggins the trial counsel failed to investigate or present significant evidence for mitigation in Wiggins background, including his history of sexual abuse. The United States Supreme Court found that failure to discover this evidence was not reasonable professional judgment. Wiggins, 539 U.S. at 533-534, 123 S.Ct. 2527.

The court looked at each family member’s testimony and found that it would not have changed the outcome. However, in deciding prejudice from counsel’s failure to investigate a client’s life history, courts should evaluate the totality of the evidence. Wiggins, 539 U.S. at 536, 123 S.Ct. 2527. The question is whether, when all the mitigation evidence is added together, is there a reasonable probability that the outcome would have been different?

An investigation of Hutchison’s family history in preparation for his posteonviction case revealed that: Hutchison had a low IQ and learning disabilities; he had difficulties in school and was placed in special education classes; Hutchison’s mother smoked marijuana with her sons when they were small boys; he turned to alcohol and drugs; his family had a history of alcoholism, substance abuse and mental illness; he was physically and sexually abused as a child; and by the time he was 16, Hutchison was being treated by a psychiatrist, who concluded that he suffered from bipolar disorder and alcoholism. The jury never heard most of this evidence.

Hutchison claims that his trial counsel were ineffective for failing to provide their expert, Dr. Bland, with sufficient background information to conduct an adequate evaluation and for failing to follow up on any information in Dr. Bland’s report. Dr. Bland had only the oral history that Hutchison provided. Bland’s reliance solely on the background information Hutchi-son related to him left Dr. Bland open to impeachment at trial. He spent less than three hours with Hutchison, and his report was very short. Bland identified some problems in his report, including borderline intellectual functioning, personality disorder and drug and alcohol abuse, but did not address the effect these deficits had on Hutchison. Trial counsel did not follow up with additional preparation with regard to these problems.

Hutchison claims his trial counsel were ineffective for not asking Dr. Bland to look for mental problems that were mitigating. When trial counsel hired Dr. Bland to evaluate Hutchison, they instructed him to decide whether Hutchison was competent and whether he suffered from a mental disease or defect. Dr. Bland concluded that Hutchison was competent and had no mental disease or defect that would preclude him from being tried for murder. Dr. Bland did not evaluate Hutchison for mitigation.

There is no Missouri law or case providing guidelines for what would constitute an adequate mental examination for the purposes of providing mitigation evidence and what would not. The court found that Hutchison failed to prove that Dr. Bland’s evaluation was inadequate. However, when Dr. Bland testified in the penalty phase, he addressed no statutory mitigators relating to Hutchison’s impaired mental functioning. He merely stated that Hutchison’s IQ was 76-78 and that Hutchison read at a fourth grade level. He did no independent investigation, gave no interpretations and provided no testimony to assist the jurors in making an educated determination about Hutchi-son’s mental condition and whether it mitigated the offense. Due process mandates that a defendant facing the death penalty have access to a competent expert who will conduct an appropriate examination and assist in the evaluation, preparation and presentation of evidence for the sentencing phase. See, Ake v. Oklahoma, 470 U.S. 68, 84, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

Hutchison claims that trial counsel were ineffective for failing to investigate and present evidence about Hutchison’s learning disability, attention deficit hyperactivity disorder, bi-polar disorder, sexual abuse and brain damage and about pharmacological evidence of the effects of drug and alcohol addiction on his intellectual functioning. Trial counsel failed to follow up on even the limited information in Dr. Bland’s report, and they did not obtain additional testing.

Hutchison does not claim that the specific experts who testified at the motion hearing should have been called at trial. Indeed, there is no claim that trial counsel knew about these specific experts. Hutch-ison merely argues that this type of expertise should have been pursued. For example, an evaluation of the damage to Hutchison’s intellectual and emotional functioning inflicted by his troubled childhood and substance abuse could have been presented as mitigation. Furthermore, there was no attempt to obtain or introduce expert testimony on neuropsychological evidence of brain damage because trial counsel “did not observe” any manifestations of brain damage. In fact, one expert testified at the evidentiary hearing that Bland’s findings should have raised a red flag to evaluate potential brain damage and that Hutchison had suffered two head injuries and had mild brain damage.

Hutchison also does not argue that his counsel were ineffective for failing to shop for a more favorable expert; only that the expert they hired should have conducted a more thorough investigation and evaluation. Although Hutchison’s family could not afford these experts, failure to do any follow-up cannot, under these circumstances, satisfy Wiggins’ mandate to discover all “reasonably available mitigating evidence.” The evidence, readily obtained and presented by postconviction counsel established that with adequate mental health evaluations, the jury would have heard significant evidence for mitigation.

For the postconviction case, several experts reviewed background material and analyzed and explained Hutchison’s problems. Evidence was presented that Hutchison has brain damage in the mild impairment range, impaired mental functioning, and suffers from a learning disorder, attention deficit hyperactivity disorder, bipolar disorder and polysubstance dependence. His functioning places him at the bottom nine percent of the population. His mental age is eight to 12 years. The court found this to be unpersuasive because “most 8-12 year olds know right from wrong.” “Impaired intellectual functioning has mitigating dimension beyond the impact it has on the ability to act deliberately.” Tennard, — U.S. at -, 124 S.Ct. at 2565.

The jury did not hear significant mitigating evidence about Hutchison’s impaired mental functioning and did not have the opportunity to consider and give effect to all of the mitigating evidence in the penalty phase. Id. at 2566.

Here, as in Wiggins, the defendant’s claim of ineffective assistance of counsel arises from trial counsel’s decision to limit the scope of their investigation into potential mitigating evidence. Counsel in Wiggins knew some of the details of the defendant’s background from the defendant himself and from a pre-sentence investigation report and department of social service documents, but decided not to investigate further. The United States Supreme Court held that counsel had an obligation to conduct a thorough investigation of the defendant’s background and that the cursory investigation from a “narrow set of sources” was unreasonable. Wiggins, 539 U.S. at 524, 123 S.Ct. 2527.

The motion court found that trial counsel was not ineffective for failing to investigate and present evidence relating to Hutchison’s impaired intellectual functioning, because much of the expert testimony proposed by postconviction counsel would have been “complex and confusing to a jury.” The court held that failure to present the evidence offered at the motion hearing was not prejudicial. In fact, evidence of impaired intellectual functioning is inherently mitigating and “obviously evidence that ‘might serve as a basis for a sentence less than death.’ ” Tennard, — U.S. at -, 124 S.Ct. at 2572 quoting Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1990). That such testimony might be complex is not a sufficient reason for holding that there is no prejudice; expert testimony is often offered precisely because the subject is complex and the testimony is intended to assist the finder of fact. State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 158 n. 16 (Mo. banc 2003).

Hutchison’s trial counsel did not follow up on any of the information in their own expert’s report. They did not investigate Hutchison’s medical, educational, family, and social history and did not present available evidence of Hutchison’s emotional and intellectual impairment. Without this evidence, the jury sentenced Hutchison to death; had they heard this evidence, there is a reasonable probability that the result of the proceedings would have been different.

CONCLUSION

The judgment is affirmed as to the guilt phase of the trial. The judgment is reversed as to the penalty phase of the trial. Pursuant to Rule 84.14, a new penalty phase trial is ordered. The case is remanded.

WHITE, C.J., STITH and TEITELMAN, JJ., and RAHMEYER, Sp.J., concur.

LIMBAUGH, J., concurs in part and dissents in part in separate opinion filed.

PRICE, J., concurs in opinion of LIMBAUGH, J.

RUSSELL, J., not participating.

STEPHEN N. LIMBAUGH, JR., Judge,

concurring in part and dissenting in part.

I concur in that part of the majority opinion affirming the motion court’s judgment on the guilt phase of the trial, but I respectfully dissent from that part of the opinion overturning the imposition of the death penalty due to purported ineffective assistance of counsel during penalty phase.

In the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in which the Supreme Court set the standard for ineffective assistance of counsel, there is an important word of caution:

It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [citations omitted] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.

Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In this case, unfortunately, the “distorting effects of hindsight” permeate the majority opinion, which is fraught with one-sided accounts of the record and an undue emphasis on small and mainly cumulative evi-dentiary points that, even taken together, could not have made a difference in the outcome.

Tellingly, the majority opinion provides only a cursory statement of appellant’s penalty phase evidence of mitigation. In fact, four defense witnesses were called— appellant’s parents, Lorraine and Bill Hutchison; a friend, Frankie Young; and a clinical psychologist, Dr. Lester Bland— who testified about appellant’s family and school background and his social and intellectual impairment. Lorraine Hutchison and Dr. Bland did so at length.

Lorraine Hutchison testified that appellant was a “very loving little boy,” that he had a “big heart,” that he was close to his family, and that he played on youth league baseball teams. She also testified, however, that he was diagnosed with hyperactivity and attention deficit disorder for which he was prescribed Ritalin, and that he was placed in special education. She explained that they did not have a lot of problems with appellant as a child, but rather “special problems” due to his hyperactivity. She then related that eventually appellant dropped out of school and that he began abusing drugs and alcohol, which necessitated family counseling. Eventually the family moved from their home in Palm-dale, California, to Missouri, because Palmdale was a “bad area” and she did not want to raise her younger son there. She added that once in Missouri, appellant entered an apprentice program with his father in the construction trade.

Next, Bill Hutchison testified, confirming his wife’s account of his son’s background, and reiterating the family’s efforts to help their son through his difficulties. He added that he and his wife were caring for their son’s children and that he visited their son at every opportunity.

Frankie Young then testified that she and appellant were close friends, that she had known him for over a year, and that appellant had stayed at her residence on occasion. She also related that appellant helped her by babysitting her children and doing household chores. Additionally, she stated that appellant was “part of the family,” that he never treated her with disrespect, and that she never felt threatened to have him with her family.

The bulk of the appellant’s penalty phase evidence was presented by Dr. Bland, who holds a doctoral degree in clinical psychology and who has extensive experience in evaluating prison inmates at the United States Medical Center for Federal Prisoners in Springfield. Dr. Bland began by stating that he interviewed appellant for two to three hours, taking a complete life history and conducting a psychological evaluation. Dr. Bland related that appellant had been in special education classes throughout elementary school and that he had dropped out of school in the tenth grade. After conducting various intellectual screening tests, Dr. Bland found that appellant had an IQ of 78, and that due to his intellectual deficit, he functioned in the bottom eight percent of the population. He then administered the Wechsler Adult Intelligence Scale Revised, the verbal section, which revealed appellant’s IQ to be 76. After administering another test, he found that appellant performed at the fourth-grade level of reading ability. Dr. Bland then added that his personal, clinical observations of appellant were consistent with the test results.

Dr. Bland also testified about appellant’s history with alcohol and drug use including an overdose of methamphetamine and appellant’s use of alcohol and drugs the night of the murders. He also related appellant’s version of the crime, including appellant’s assertion that he did not kill the Yates, and appellant’s fear of his co-defendants. In conclusion, Dr. Bland testified that appellant was competent to stand trial and that he did understand the charges against him, but that appellant suffered from “borderline intellectual functioning and personality disorder, not otherwise specified.”

Dr. Bland’s written report was also admitted into evidence. This included appellant’s account of his family life, and his express comment that he had a good relationship with his mother and father. The report also reviewed appellant’s time in special education and his problems in school, as well as the diagnosis of hyperactivity and an additional diagnosis that he was “manic depressant.” Appellant also reported being sexually molested by an uncle at the age of 11. The report also discussed appellant’s addiction to drugs and alcohol, his treatment with a social worker and psychiatrist, and his acknowledgment that he was not compliant with drug treatment. The report also discussed appellant’s two children and his common law wife, and his efforts to get a job.

In sum, appellant’s penalty phase evidence in mitigation was extensive and comprehensive, and counsel painted appellant in the best light possible by highlighting his redeeming qualities and by attempting to garner sympathy by focusing on his many difficulties as a child and young adult. The majority’s conclusion that counsel “did not investigate Hutchison’s medical, educational, family, and social history and did not present available evidence of Hutchison’s emotional and intellectual impairment” is a gross mischaracterization of the record.

Finally, it bears mention that the majority’s repeated reliance on the holdings of Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) overlooks the facts of that case. In Wiggins, counsel elected to focus their efforts in penalty phase by “retrying the factual case,” rather than introducing evidence in mitigation, except to show that the defendant had no prior convictions. Id. at 2533, 2543, 123 S.Ct. 2527. Counsel did not even inquire about defendant’s life history and social history, and as a result was wholly unaware of the fact that defendant had been subjected to repeated instances of sexual abuse and molestation. Id. at 2541, 123 S.Ct. 2527. The gist of the opinion, of course, is that counsel could not have made a reasonable strategic choice to forego evidence in mitigation without having conducted a reasonable investigation. Id. at 2543, 123 S.Ct. 2527. In the case at hand, though, as the record shows, counsel for Hutchison made that reasonable investigation.

For the foregoing reasons, I would hold that there was no ineffective assistance of counsel in either phase of the trial and affirm the motion court’s judgment in all respects.

      . State v. Hutchison, 957 S.W.2d 757 (Mo. banc 1997).

      . Hutchison v. State, 59 S.W.3d 494 (Mo. banc 2001).

      . An investigator for the public defender’s office stated in an affidavit that Salazar admitted during the postconviction investigation that he shot the victims both in the garage and by the side of the road. However, during Hutchison's trial the jury only heard Lopez’s testimony that Hutchison shot and killed the victims by the side of the road and the affidavit was not allowed into evidence at Hutchi-son's postconviction evidentiary hearing.

      . Hutchison’s family members had tried to hire this firm but were referred to the attorneys who represented Hutchison at trial because they could not afford the sizeable retainer.

      . The parties did not address the issue of whether Hutchison has standing to challenge another defendant's sentence, and there is no need to decide this issue here, as there will be a new sentencing phase trial.

      . Article I, section 32.1(2) of the Missouri Constitution grants crime victims the right to be heard at guilty pleas, sentencings, etc. "unless in the determination of the court the interests of justice require otherwise.”
      Article I, section 32.4 provides that nothing in section 32 shall be construed to authorize a court to set aside or to void a finding of guilt or an acceptance of a plea of guilty in any criminal case.

      . All statutory references are to RSMo 2000 unless otherwise indicated.

      . Rule 29.16(d) provides: "As to any counsel appointed as provided in this Rule 29.16, the state public defender ... shall provide reasonable and necessary litigation expenses.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED C.O.D., Appellant, v. STATE of Missouri, et al., Respondents.
    No. SC 85537.
    Supreme Court of Missouri, En Banc.
    Dec. 7, 2004.

      Herman L. Jimerson, Clayton, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Maureen C. Beekley, Asst. Atty. Gen., St. Louis, Cynthia L. Hoemann, Patricia Red-ington, Associate County Counselor, Clayton, Patricia A. Hageman, Edward J. Han-lon, St. Louis, for respondents.
   PER CURIAM.

United C.O.D. is a collective group of independent cab drivers and owners operating in the city and county of St. Louis. It filed suit challenging the validity of sections 67.1800 to 67.1822, RSMo Supp.2003. These sections create a metropolitan taxicab commission. Pursuant to these sections, the commission adopted a code regulating vehicles for hire. The trial court enjoined the commission from applying the code’s dress code provisions to persons who certify that they are subject to a religious mandate that prohibits or conflicts with full compliance. In all other respects the court denied relief to United, which appeals. This Court has jurisdiction. Mo. Const, article V, section 3. The judgment is affirmed.

United’s first point asserts that the statutes violate various constitutional rights. To properly raise a constitutional question, one must: (1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review. Callier v. Director of Revenue, State of Mo., 780 S.W.2d 639, 641 (Mo. banc 1989). A statute is presumed to be constitutional and will not be held to be unconstitutional unless it clearly and undoubtedly contravenes the constitution. Courts will enforce a statute unless it plainly and palpably affronts fundamental law embodied in the constitution. When the constitutionality of a statute is attacked, the burden of proof is upon the party claiming that the statute is unconstitutional. Adams By and Through Adams v. Children’s Mercy Hosp., 832 S.W.2d 898, 903 (Mo. banc 1992). This Court will resolve doubts in favor of the procedural and substantive validity of an act of the legislature. Hoskins v. Business Men’s Assur., 79 S.W.3d 901, 904 (Mo. banc 2002).

As to an equal protection challenge, the first step is to determine whether the challenged statutory classification operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution. If so, the classification is subject to strict judicial scrutiny to determine whether it is necessary to accomplish a compelling state interest. Otherwise, review is limited to a determination of whether the classification is rationally related to a legitimate state interest. In re: Marriage of Kohring, 999 S.W.2d 228, 231-32 (Mo. banc 1999).

A class receiving heightened scrutiny in equal protection analysis includes race, alienage, national origin, gender, and illegitimacy. As for fundamental rights, those requiring strict scrutiny are the rights to interstate travel, to vote, free speech, and other rights explicitly or implicitly guaranteed by the Constitution. In re Marriage of Woodson, 92 S.W.3d 780, 784 (Mo. banc 2003). United fails to identify any of these suspect classifications or fundamental interests.

As to the rational basis for the statutes, there only need be a conceivably rational basis to uphold the regulatory scheme. FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211. A legislative choice “is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Id. The statutes are conceivably rationally related to regulating part of the public transportation system and improving the quality of the system. See Ex parte Lockhart, 350 Mo. 1220, 171 S.W.2d 660 (1943).

In its second point, United contends that the statutory powers seek to achieve “what was beyond their power because it could not be realized by- any exercise of specific powers granted by the constitution.” The Missouri constitution, unlike the federal constitution, however, does not make specific grants of legislative power to the General Assembly, but rather specifies limits on its power. Americans United v. Rogers, 538 S.W.2d 711, 716 (Mo. bane 1976). United fails to identify any constitutional limitation applicable to this case.

As its third point on appeal, United contends the trial court has not entered a final judgment. The court found that United had failed in its burden of proof as to the contested statutes, code and regulations, except as to the dress code, and entered judgment for respondents accordingly. To the extent United wanted additional findings or an opinion containing a statement of the grounds for the court’s decision, it was required to file a request with the court prior to the introduction of evidence at trial. Rule 73.01(c). The record does not contain any such request.

For its final point, United contends the members of the regional taxicab commission, created by the relevant statutes, have a vested interest in the success of the commission which will adversely affect United’s members. Section 67.1806.2, RSMo Supp.2003, requires four representatives of the taxicab industry to be appointed to the nine-member commission. United provides no meaningful authority for its position. It is not uncommon for members of a regulatory body to be engaged in the profession. See, e.g., section 32⅛.063 (occupational therapists to serve on Missouri board of occupational therapy); section 326.160 (certified public accountants to serve on state board of accountancy); section 328.030 (registered and practicing barbers to serve on barber board); section 329.190 (registered and licensed cosmetologists to serve on state board of cosmetology); and Rule 8.01 (members of The Missouri Bar to serve on board of law examiners). To the extent a conflict of interest may arise with a member of the board on a particular matter, section 105.452, which is applicable to the members of the board, requires the member to refrain from acting.

The judgment is affirmed.

WHITE, C.J., WOLFF, STITH, PRICE, TEITELMAN and LIMBAUGH, JJ., and RAHMEYER, Sp.J., Concur.

RUSSELL, J., not participating.

      . Except as otherwise indicated, all statutory references are to RSMo 2000.

      . United’s other constitutional claims are similarly without merit or inadequately preserved.

      . Other claims contained in the argument portion under this point are not limited to those errors included in the point relied on. Rule 84.04(e). In any event, they are without merit.

      . If United did not believe the judgment was final, it, as the sole appellant, was free to dismiss its appeal at any time before submission of the case. Rule 84.09.


author: JOHN E. PARRISH, Presiding Judge.

text:
    Lee Kraft STICKLER and Terry Stickler, Plaintiffs-Respondents, v. FOREMOST SIGNATURE INSURANCE CO., Defendant-Appellant.
    No. 25627.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 24, 2004.
    Motion for Rehearing or Transfer to Supreme Court Denied Oct. 4, 2004.

      Russell F. Watters, T. Michael Ward, Brown <& James, P.C., St. Louis, James B. James, Brown & James, P.C., Springfield, for defendant-appellant.
    Michael T. Pivac, Thomas H. Hearne, Hearne & Pivac, Springfield, for plaintiffs-respondents.
   JOHN E. PARRISH, Presiding Judge.

Foremost Signature Insurance Co. (Signature) appeals a judgment rendered in favor of Lee Kraft Stickler and Terry Stickler (collectively referred to as plaintiffs) in an action for breach of contract. The contract in question is an insurance policy issued by Signature. This court affirms.

Signature issued a “Mobile Home Insurance Policy” to plaintiffs. It was a renewal policy. The policy period was “[fjrom 09/09/00 To [sic] 09/09/01 12:01 A.M. STANDARD TIME.” Plaintiffs made quarterly premium payments. The last premium payment plaintiffs paid was in March 2001. The property the policy covered was destroyed by fire July 24, 2001.

Ms. Stickler testified that no cancellation notice had been received from Signature during May or June of 2001. After the fire, Ms. Stickler asked for copies of any cancellation notice and for records regarding whether a cancellation notice had been mailed to her. None were provided.

Plaintiffs reported their loss to their insurance agent. Their agent told them the policy had been cancelled. Plaintiffs then contacted the Signature home office and were told “that it appeared that the policy had been cancelled for nonpayment, and that there may not be coverage.” Plaintiffs later received a letter denying their loss claim. Plaintiffs brought this action seeking the amounts of coverage provided by the terms of the policy plus interest, attorney fees, and costs. Signature alleged, as an affirmative defense, that the policy of insurance issued to plaintiffs had been cancelled for nonpayment of premium prior to the date of the claimed loss. The case proceeded to jury trial. The jury instructions included Instruction No. 6 that told the jury it was to find for Signature if it believed Signature had cancelled the policy of insurance pursuant to the cancellation provision of the policy.

Verdict was returned for Signature. The trial court initially entered judgment in accordance with the verdict, but later granted plaintiffs’ motion for judgment n.o.v. and entered judgment for plaintiffs for $59,500 “on the contract of insurance” and $8,289.24 prejudgment interest.

Signature raises two points on appeal, both directed to whether the policy of insurance had been cancelled by Signature. Both contend the trial court erred in granting plaintiffs’ motion for judgment n.o.v.; that the policy of insurance gave Signature the right to cancel the policy and that the steps required for cancellation were met. Point I contends “the jury found that [Signature] mailed a cancellation notice to Plaintiffs in compliance with the cancellation provision.” Point II asserts the cancellation notice was sufficient. It states several specifics that Signature argues were means by which it was permitted to unilaterally cancel the policy. Signature contends a notice was sent; that the notice “strictly complied with the policy’s cancellation provision, although the notice was mailed on [Signature’s] behalf by Foremost Insurance Company; there is no prohibition in the policy against a third party sending the noticef.]”

As this court perceives point I, Signature contends the policy terms were unambiguous regarding its right to unilaterally cancel plaintiffs’ insurance policy; that it complied with those terms in that a notice of cancellation was mailed to plaintiffs.

Insurance policies are contracts. Central Surety and Ins. Corp. v. New Amsterdam Casualty Co., 359 Mo. 430, 222 S.W.2d 76, 78 (banc 1949). The rules of contract construction govern insurance policies. Peters v. Employers Mutual Casualty Co., 853 S.W.2d 300, 301-02 (Mo.banc 1993)....
Absent an equitable ground, an insurance policy may be cancelled only: 1) by mutual assent of the parties or, 2) under the terms of the policy. MFA Mutual Ins. Co. v. Southwest Baptist College, Inc., 381 S.W.2d 797, 801 (Mo.1964)....

Blair by Snider v. Perry County Mut. Ins. Co., 118 S.W.3d 605, 606-07 (Mo. banc 2003).

Here, as in Blair, there was no mutual assent to cancellation; neither is there a claim of an equitable ground for cancellation by Signature. The policy Signature issued to plaintiffs provides with respect to Signature’s right to unilaterally cancel the policy:

We [i.e., Signature] may cancel this policy for any reason during the first 60 days we insure you. After the first 60 days we may cancel it if:
a. The risk has changed substantially since the policy was issued; or
b. If you or your representative:
(4) Have not paid the premium.
We will mail a cancellation notice to you at least 30 days (10 days if you have not paid the premium) before this policy is cancelled. We will mail a cancellation notice to your last address known to us or your insurance representative. We will also give the same notice to your lienholder.

An exhibit was admitted in evidence, plaintiffs’ exhibit No. 40, that was represented as being a certificate of mailing. It identified names and addresses of persons to whom material was mailed on May 29, 2001, by Foremost Insurance Company (Foremost) from Grand Rapids, Michigan. The certificate of mailing lists an item that was addressed to “MARGIE KRAFT STICKLER, TERRY 22899 ELM SPRINGS RD HUGHESVILLE MO 65334.”

The required act in order for Signature to cancel the policy of insurance issued plaintiffs for nonpayment of premium was for Signature to mail a cancellation notice at least 10 days before the date of cancellation. The policy language in this case is similar to that in Blair that was found unambiguous. See also Hudson v. State Security Ins. Co., 555 S.W.2d 859, 861 (Mo.App.1977); McGarrah v. Stockton, 425 S.W.2d 223, 228 (Mo.App.1968). This court holds that the policy language is unambiguous with respect to the act necessary to cancel the policy of insurance issued plaintiffs for nonpayment of premium. The argument in Point I directed to whether Signature complied with the stated requirements for canceling plaintiffs’ policy of insurance will be considered with Point II.

Point II asserts six bases, denominated as subparagraphs A through F, for Signature’s claim that the trial court erred in granting judgment n.o.v. because Signature had complied with the policy terms that permitted it to cancel the policy. Subparagraph D asserts that “[Signature’s] notice strictly complied with the policy’s cancellation provision, although the notice was mailed on [Signature’s] behalf by [Foremost]; there is no prohibition in the policy against a third party sending the notice.”

Signature argues that a notice that met the requirements for cancellation of plaintiffs’ policy of insurance for nonpayment of premium was mailed by Foremost May 29, 2001. Signature relies on plaintiffs’ exhibit No. 40 for proof that the required notice was mailed. Plaintiffs argue, however, that Signature did not prove that whatever may have been sent May 29, 2001, complied with policy requirements for unilateral cancellation for nonpayment of premium.

“A unilateral cancellation must strictly comply with the policy.” Blair, 118 S.W.3d at 607. As stated, supra, Signature’s policy states, “We may cancel this policy ... [i]f you or your representative ... [h]ave not paid the premium.” (Emphasis added.) The policy provides, “We, us and our means the company named on the Declarations Page.” (Emphasis added.) The company named on the “Declarations Page” is Signature. Signature is identified as “A Stock Company.”

Plaintiffs testified that they received no cancellation notice or final settlement from Signature reflecting cancellation of their policy. Signature had no copies at trial of any notice canceling the policy of insurance that it claimed had been sent to plaintiffs. Signature’s evidence was that any notices sent would have been sent by Foremost. Signature acknowledged that although notices were intended to be on Signature’s behalf, they would have been on Foremost stationery rather than on Signature stationery. Plaintiffs argued this would not have complied with policy requirements that Signature give notice of cancellation.

In Safeco Ins. Co. of America v. Stone & Sons, Inc., 822 S.W.2d 565 (Mo.App.1992), Safeco Insurance Company of America (Safeco) mailed a notice of cancellation of an automobile insurance policy in which the insured was Stone & Sons, Inc. The policy required Safeco to mail or deliver a notice of cancellation to the named insured. The notice was mailed to Richard Stone. Richard Stone had previously been the named insured on the policy, but had changed the named insured to Stone & Sons, Inc., when his business was incorporated.

The policy stated, “We may cancel the policy by mailing you at least 10 days notice at your last address known by us. We’ means the company providing the insurance, ‘y°u’ means the person or organization shown as the named insured in ITEM One of the declarations.” Id. at 568. Safeco held the notice was not in accordance with the terms of the policy; that it had not been sent to the named insured on the policy.

Safeco explained:

“The Missouri courts have held, in an unbroken line of decisions, that strict compliance with all the requirements in regard to notice is a prerequisite to cancellation.” Farrar v. Mayabb, 326 S.W.2d 337, 340 (Mo.App.1959); See, Farmers Mutual Hail Insurance Co. v. Minton, 279 S.W.2d 523, 526 (Mo.App.1955); (“where a policy contains a specific provision for cancellation by either party, it is binding upon the parties and must be strictly complied with in order to terminate the policy.”) Dyche v. Bostian, 229 S.W.2d 25, 28 (Mo.App.) aff'd, 361 Mo. 122, 233 S.W.2d 721 (1950). This is so, even when the provision is “unreasonable.” Home Ins. of New York v. Horrell, 206 Mo.App. 352, 227 S.W. 830, 831 (1921) (cancellation terms in insurance policies must be strictly complied with); Continental Ins. Co. of New York v. Phipps, 190 S.W. 994, 995 (Mo.App.1916) (“The parties entered into such a contract and the courts will not undertake to make a different one for them.”) In Farrar, an incorrectly addressed notice of cancellation was held ineffective. 326 S.W.2d at 340-41. In Farmers Mutual, the insured sent written notice of cancellation to the insurance company, but his failure to comply with the policy requirement of returning the policy together with the written notice caused him to remain liable to the company for future assessments. 279 S.W.2d at 526-27.

Id. Safeco cited MFA Mutual Ins. Co. v. Southwest Baptist College, Inc., 381 S.W.2d 797 (Mo.1964), and Fuller v. Lloyd, 714 S.W.2d 698 (Mo.App.1986), as “[m]ore recent cases” that “required strict adherence to policy and statutory language to determine if an insurer has effectively canceled an insurance policy.” Id.

The trial court in this case had before it plaintiffs’ motion for judgment n.o.v. in which plaintiffs claimed Signature “failed to sustain its necessary burden of establishing [Signature’s] strict and literal compliance with the terms and requirements of the cancellation provision of its policy of insurance”; that Signature failed to show it mailed the required cancellation notice as the terms of the policy required. The evidence supports that allegation.

Signature had no copies of the notices it claimed had been sent. There was no evidence that Signature took any action as “the company named on the Declarations Page.” Rather, the action Signature claimed was taken was performed by Foremost, a company separate and distinct from Signature. See n. 3, supra. The action taken that Signature contends was intended to cancel the policy was done in Foremost’s name, not Signature’s. Just as the giving of a notice to a party other than the named insured did not comply with policy terms in Safeco, the giving of a notice in this case by a company other than the one that issued the policy of insurance did not comply with policy terms. The part of Point I not previously considered and subparagraph D of Point II are denied. The issues raised in the remaining parts of Point II are moot. The judgment is affirmed.

PREWITT and BATES, JJ., concur.

      . The policy identified the insureds as "Margie Kraft and Terry Stickler.” Plaintiff Lee Stickler testified that "legally” Margie is her name, but she uses her middle name. The pleadings in this case denote Ms. Stickler as "Lee”; however, the judgment identifies her as “Lea Kraft Stickler.” This opinion will use the name by which Ms. Stickler is identified in the pleadings and notice of appeal.

      . Instruction No. 6 was unusual in that it purported to advise the jury as to the means by which the policy of insurance could be cancelled by quoting a lengthy provision from the text of the policy. No issue regarding the instruction is raised in this appeal.

      . Signature acknowledged at trial and in the appellate brief it filed with this court that “Foremost Insurance Company [Foremost] and Foremost Signature [Signature] are separate corporations within the Foremost Insurance Group.” At trial, a representative of Foremost Insurance Group testified that the two companies are different entities; that they are "incorporated separately,” and they issue separate policies.

      . The policy provides that if any policy provision "is in conflict with any governmental requirements” when it is written, the terms of the policy are “automatically changed to conform to them.” It also provides that if Signature "broaden[s]” the coverage that has been issued to an insured without additional premium charges, Signature will give the insured “the benefit of these broadened coverages.” The policy terms then state, "The only other way this policy can be changed is if we change it in writing.” There is no contention that the policy Signature issued plaintiffs was in conflict with any governmental requirements or that Signature "broadened” coverage or otherwise changed its terms.

      . Signature contended that Foremost's automation system could recreate documents it claimed Foremost had sent to plaintiffs on its behalf. The trial court sustained plaintiffs' best evidence objections to what Signature contended were recreated documents.

      . Richard Stone was president and 50 percent shareholder of Stone & Sons, Inc. His wife, Debra Stone, held the remaining 50 percent of the stock in the corporation. Mr. and Mrs. Stone's residence was also the office of Stone & Sons, Inc. ne & Sons, Inc.


author: PHILLIP R. GARRISON, Judge.

text:
    Leo WARREN, Plaintiff-Respondent, v. Sylvester COMBS, Defendant-Appellant.
    No. 25612.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 28, 2004.
    Motion for Rehearing or Transfer Denied Oct. 20, 2004.

      Marc L. Edmondson, Edmondson Law Firm, P.C., Springfield, for Appellant.
    Ray Lee Caskey, Jeri Leigh Caskey, Alton, for Respondent.
   PHILLIP R. GARRISON, Judge.

Sylvester Combs (“Appellant”) appeals from a judgment finding in favor of Leo Warren’s (“Respondent”) claims of wrongful eviction and conversion and awarding Respondent $5,001.

This case stems from a dispute involving real property purchased by the Appellant from Mary Parnell (“Parnell”) in June of 2002. Before and up to the time of purchase, Parnell, Respondent’s aunt, had been renting the property to Respondent for pasturing and cutting hay and seed. Respondent paid $1,750 total per year, but paid $100 each month until the end of the year when he paid the remaining amount in a lump sum. Respondent learned that Parnell had sold the property to Appellant around the first of July 2002. The parties dispute whether Appellant knew that Parnell had the property leased until the end of the year. In any event, after Appellant purchased the land, he spoke to Respondent about keeping his cattle out of a pond, but told him that he could cut the seed on the property.

Appellant and Respondent did not have any contact for a few more weeks, until Appellant found that the pasture was being mowed for hay. Appellant ordered the people mowing the hay to stop, and, later in the week, spoke to Respondent and Respondent’s son, Todd Warren. Appellant and Respondent argued about whether the property was leased or not, and, if so, for how long. Appellant told Respondent that he wanted $300 per month to lease the property. A couple of days later, Appellant and Respondent had another argument regarding the amount of hay in the field, at the end of which Appellant ordered Respondent off of the property. They had another confrontation a few days later when Respondent was in the field checking his hay. At that time, Appellant told Respondent that if the cattle were not off of the property in seven days, Appellant would charge Respondent $10 per head of cattle per day. Thereafter, Appellant found Respondent in the fields checking the cattle and hay, but did not speak to him. After locking the gates so as to exclude Respondent from the property, Appellant, on August 23, 2002, had the cattle removed and sent to Respondent’s property.

Respondent claimed that he suffered damages because the cattle consumed $150 worth of his pasture after being delivered there by Appellant. He also claimed that he had to find new pasture land for his cattle at a cost of $1,200; he was not able to remove approximately 120 bales of his hay from the property, valued at $30 per bale; and was unable to remove thirteen wire cattle panels from the property valued at $12 each, a large metal panel worth $100, and a mineral feeder worth $75.

Respondent filed suit against Appellant on September 24, 2002, alleging wrongful ejection from the property, conversion, and damages to his field and for having to find new pasture for the cattle. Appellant filed a “Motion to Add Indispensable Party” on November 1, 2002, alleging that Parnell “may be hable to [Appellant] for some part [or] all of any judgment entered in favor of [Respondent] and against [Appellant] as well as being liable for the separate claims of [Appellant].” The trial court denied this motion on November 20, 2002, and later denied Appellant’s motion for reconsideration. Prior to beginning the trial, Appellant again presented his motion to add Parnell as an indispensable party and it was again overruled. After trial to the court, the judgment was entered from which this appeal follows.

Appellant raises one point on appeal. He claims that the trial court erred in failing to join Parnell as a third-party defendant because under Rule 52.04 Parnell was a necessary party in that Parnell had an interest in the proceeding and Appellant otherwise risked incurring inconsistent obligations and multiple proceedings. Appellant then explains in his argument the reasons why, in his opinion, Parnell is a necessary party. We do not need to reach the merits of this claim, however.

Rule 84.04(d)(1)(A) requires that the point relied on shall “identify the trial court ruling or action that the appellant challenges.” Subsection (B) then requires that the appellant state concisely the legal reasons for the appellant’s, claim of reversible error. Finally, subsection (C) requires that the appellant “explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Furthermore, in the argument section of the brief, “[t]he argument shall be limited to those errors included in the ‘Points Relied On.’” Rule 84.04(e). “When matters referenced as alleged error in a point relied on are not developed in the argument portion of a brief, they are deemed abandoned.” Glidewell v. S.C. Mgmt. Inc., 923 S.W.2d 940, 956 (Mo.App. S.D.1996); see also Massage Therapy Training Institute, LLC v. Mo. State Board of Therapeutic Massage, 65 S.W.3d 601, 609 (Mo.App. S.D.2002); City of Rolla v. Armaly, 985 S.W.2d 419, 426-27 (Mo.App. S.D.1999).

The trial court ruling complained of in the point relied on is the failure to join Parnell as a third-party defendant. In Appellant’s argument section, however, Appellant claims that Parnell is a party necessary so as to give complete relief to Appellant and cites Rule 52.04 and cases supporting this proposition. Appellant does not address the issue of third-party practice in his argument section, nor does he contend that all of the procedural requirements for adding a third-party defendant were completed. Appellant does not make mention in his brief of Rule 52.11(a), the rule governing third-party practice. Appellant did not file a third-party petition against Parnell within ten days of filing an answer, nor did Appellant move the trial court to obtain leave to file a third-party petition against Parnell at a later time. Rule 52.11(a). Appellant cites no authority in support of his claimed error, only citing authority to support his claims that Parnell is a necessary party and should be joined. Third-party practice and the joinder of persons needed for just adjudication are two different doctrines, governed by different rules. See Rules 52.11 and 52.04. Appellant, by not addressing the failure of the trial court to add a third-party defendant in his argument section, abandoned his point on appeal.

Furthermore, “[a]n issue that was never presented to or decided by the trial court is not preserved for appellate review.” State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122, 129 (Mo. banc 2000). Appellant never filed a motion to add Parnell as a third-party defendant. Appellant’s motion was to add Parnell as an indispensable party, although there was a reference in the motion to a contention that he believed Parnell might be liable to him for some part or all of any judgment entered in favor of Respondent. Even if we were to consider Appellant’s “Motion to Add Indispensable Party” as being in fact a motion to add a third-party defendant, Appellant never served a third-party petition against Parnell in compliance with Rule 52.11(a). Since no motion to add a third-party defendant was presented to the trial court, we cannot convict the trial court of error for failing to do that which was never presented to it.

The judgment of the trial court is affirmed.

PREWITT, J., and RAHMEYER, J., concur.

      . All rule references are to Missouri Rules of Civil Procedure (2003) unless otherwise noted.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    CITY OF SPRINGFIELD, Missouri, Plaintiff-Respondent, v. Steven Maurice HAMPTON, Defendant-Appellant.
    No. 25747.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 29, 2004.
    Motion for Rehearing and Transfer to Supreme Court Denied Oct. 21, 2004.

      S. Dean Price, Springfield, for Appellant.
    Patricia Sullivan, Springfield, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Steven Maurice Hampton appeals from a conviction for driving while intoxicated. Hampton raises one point on appeal challenging the trial court’s admission of the evidence of intoxication because of the officer’s lack of authority to make the initial stop for speeding. We affirm.

FACTS

In the early morning hours of October 12, 2000, Officer Brian Reeves of the Springfield Police Department observed a white Dodge Ram pickup truck traveling northbound on Kimbrough Avenue at a rate of speed that appeared to be greater than the posted 20 mile-per-hour speed limit. Officer Reeves’ radar equipment indicated that the pickup was traveling at 30 miles per hour. Reeves concluded that the vehicle was likely speeding and he activated his emergency equipment and stopped the truck. Steven Hampton was driving the vehicle. When Officer Reeves made contact with Hampton, Reeves noticed that Hampton’s breath contained an odor of intoxicants, his eyes were bloodshot and glossy, and his speech was somewhat slurred. Reeves conducted three field sobriety tests — the horizontal gaze nystag-mus test, the walk-and-turn test and the one-leg stand test — on Hampton. He faded each test and was arrested for driving while intoxicated; he was given a blood alcohol content test at the jail which showed that he had a blood alcohol level of .161 %.

The City of Springfield charged Hampton with driving while intoxicated and speeding. At the ensuing proceedings, the Springfield Municipal Court found Hampton guilty on both charges, and Hampton subsequently requested a trial de novo.

Prior to the trial, Hampton moved to suppress the intoxication evidence due to an inadequate basis for the traffic stop. On May 6, 2003, the Honorable Dan Conk-lin denied the motion to suppress and found Hampton guilty on both counts. On July 10, 2003, the court sentenced Hampton to a five hundred dollar fine, a sixty-day suspended jail sentence and one year of supervised probation for the driving while intoxicated violation.

STANDARD OF REVIEW

Appellate review of a trial court’s decision regarding a motion to suppress evidence “is limited to a determination of whether there is substantial evidence to support its decision.” State v. Tackett, 12 S.W.3d 332, 336 (Mo.App. W.D.2000). The trial court’s ruling on a motion to suppress evidence will be reversed only if it is clearly erroneous and the appellate court is left with a definite and firm belief that a mistake has been made. State v. Leavitt, 993 S.W.2d 557, 560 (Mo.App. W.D.1999). All evidence and any reasonable inferences that could be drawn from the evidence will be viewed in the light most favorable to the trial court’s ruling. Tackett, 12 S.W.3d at 386. Both the record made at the suppression hearing as well as the evidence introduced at trial are included within the scope of review. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). If the ruling is plausible, in light of the entire record, an appellate court will not reverse, even if convinced that it would have weighed the evidence differently. State v. Milliorn, 794 S.W.2d 181, 184 (Mo. banc 1990). The factual findings are reviewed only to ascertain if they are supported by substantial evidence, viewing the facts in the light most favorable to the trial court’s ruling and disregarding contrary evidence and inferences. State v. Hoopingarner, 845 S.W.2d 89, 92 (Mo.App. E.D.1993). Although the appellate court gives deference to the trial court’s determination of the credibility of witnesses, whether the Fourth Amendment was violated is a question of law that the appellate court reviews de novo. State v. Pfleiderer, 8 S.W.3d 249, 253 (Mo.App. W.D.1999).

ANALYSIS

The thrust of Hampton’s point on appeal is that Officer Reeves was without authority to stop him because the radar unit, which was used by the officer during the initial speeding stop, was inaccurate due to improper certification, maintenance and testing. In his argument, Hampton cites cases standing for the proposition that a speeding conviction cannot be based upon a radar device reading without proof that the unit was properly tested and functioning properly. The fallacy of Hampton’s argument is that he is not appealing his speeding conviction; he is appealing his conviction for driving while intoxicated. Had Hampton appealed his speeding conviction, the reliability of the radar device might well have been the central focus of review. But here, Hampton questions the trial court’s conclusion that Reeves had sufficient grounds to make the initial traffic stop. Therefore, the reliability of the radar unit is only relevant as it relates to Officer Reeves’ authority to have made the initial stop, and we must look to the myriad of cases that discuss the necessary requirements for a legal traffic stop.

The Fourth Amendment to the United States Constitution preserves the right of persons to be secure against unreasonable searches and seizures. U.S. Const, amend. IV; Deck, 994 S.W.2d at 534 (noting that Missouri’s constitutional “search and seizure” guarantee is co-extensive with the Fourth Amendment). Warrantless seizures conducted by police officers are generally per se unreasonable unless they are within certain recognized exceptions to the warrant requirement. State v. Taber, 73 S.W.3d 699, 704 (Mo.App. W.D.2002). One of these exceptions is a “Terry stop,” as recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Id. at 704-05. Under the principles outlined in Terry v. Ohio, a police officer may briefly stop a person when the officer has a reasonable suspicion, based upon specific and articulable facts, that the person is, was or is about to be engaged in criminal activity. State v. David, 13 S.W.3d 308, 311 (Mo.App. W.D.2000).

Reasonable suspicion of criminal activity includes traffic violations. See State v. Huckin, 847 S.W.2d 951, 955 (Mo.App. S.D.1993) (finding that reasonable suspicion existed where officer observed motorist weaving in the lane of traffic); State v. Holmes, 622 S.W.2d 358 (Mo.App. E.D.1981) (finding that reasonable suspicion existed where officer observed motorist traveling at high rate of speed and engaging in “suspicious” activities). If a police officer has knowledge of specific and articulable facts supporting his suspicion that the driver of a vehicle is committing or has committed a traffic violation, then the officer has sufficient grounds to make a Terry stop of the vehicle. Taber, 73 S.W.3d at 705.

In the present case, the trial court had substantial evidence to conclude that Officer Reeves was acting on a reasonable suspicion that Hampton had committed a traffic violation. Reeves first observed Hampton traveling at a rate of speed which appeared to be faster than the posted speed limit of 20 miles per hour. Although Reeves confirmed the validity of his observation with his radar equipment, the use of the radar equipment was not a necessary component of the initial stop. An underlying conviction for the traffic violation is not necessary to uphold the reasonable suspicion of the officer to initially stop the vehicle for a brief Tern/ stop; all that is necessary is that the officer had an articulable suspicion of the traffic violation. See State v. Slavin, 944 S.W.2d 314, 317 (Mo.App. W.D.1997) (“[a] police officer is authorized to stop a vehicle observed violating the traffic laws of the state”); State v. Bunts, 867 S.W.2d 277, 280 (Mo.App. S.D.1993) (traffic stop may be justified by observation of unusual conduct, such as an abrupt reduction of speed, which may not itself constitute a traffic violation).

Hampton questions the reliability of the radar unit used by Reeves and argues if the reliability of the unit was not sufficiently established, the trial court could not properly rely on Reeves testimony regarding the speed indicated by the radar unit. While Hampton is correct that the reliability of the unit is relevant to determine whether or not Hampton did in fact exceed the speed limit by ten miles per hour, our review does not concern whether Hampton was in fact speeding prior to the stop. Rather, our review concerns whether Reeves had reasonable suspicion to believe that Hampton was committing the crime of speeding prior to the stop. More precisely, our review asks whether sufficient evidence exists to support the trial court’s decision that the stop was valid and the intoxication evidence was admissible. For the reasons detailed above, we find that the trial court had sufficient evidence to find that Reeves had reasonable suspicion to stop Hampton and, thus, that the trial court did not err in admitting the evidence of intoxication. The judgment is affirmed.

GARRISON, P.J., and PREWITT, J., concur.

      . Hampton was also convicted of speeding; however, he does not challenge that conviction on appeal.