Court of Appeals of Missouri, Southern District, First Division
APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY. Honorable Kenneth M. Hayden, Circuit Judge.
For Appellant's: John P. O'Connor, of Kansas City, Missouri.
For Chris Koster, Attorney General and Shaun J. Mackelprang, Assistant Attorney General, of Jefferson City, Missouri.
WILLIAM W. FRANCIS, JR., C.J./P.J. - OPINION AUTHOR. JEFFREY W. BATES, J. - Concurs. DANIEL E. SCOTT, J. - Concurs.
WILLIAM W. FRANCIS, JR., C.J./P.J.
Curtis Shore (" Shore" ) appeals the motion court's denial of his Rule 29.15 motion, following an evidentiary hearing, on the basis the motion court clearly erred in denying his claim of ineffective assistance of trial counsel. We affirm the judgment of the motion court.
Factual and Procedural Background
We set forth only those facts necessary to complete our review. In doing so, we view the evidence in the light most favorable to the motion court's judgment. McCauley v. State, 380 S.W.3d 657, 659 (Mo.App. S.D. 2012).
Shore was tried before a jury on September 14 through 17, 2009, and was found guilty of the class A felony of murder in the first degree (Count I), pursuant to section 565.020, and the class A felony of armed criminal action (Count II), pursuant to section 571.015. Shore was sentenced to life without parole on Count I, and to 30 years' imprisonment on Count II, to run consecutive to Count I. This Court affirmed Shore's conviction and sentence on direct appeal in State v. Shore, 344 S.W.3d 292, 294 (Mo.App. S.D. 2011). Additional facts detailing Shore's offenses are recited there.
On November 14, 2011, with the assistance of counsel, Shore filed a post-conviction motion. Among the claims asserted in the motion, Shore alleged that his trial counsel, Daniel Hunt (" attorney Hunt" ) and attorney Darrell Deputy (" attorney Deputy" ), were ineffective for " failing to hire a mental health expert to examine [Shore] for the defense of not guilty by reason of mental disease or defect" (Ground 5), and " failing to produce evidence of [Shore]'s weakened condition and state of mind due to his September 2005 stroke[,]" as this evidence would have been useful " to negate the elements of murder or demonstrate the required fear element for self-defense" (Ground 7).
On January 8 and July 2, 2013, the motion court held an evidentiary hearing.
Shore's attorney advised the motion court that Shore intended to abandon all but two of his claims, and that he intended to proceed only " on grounds 5 and 7," addressing Shore's contentions he was not " guilty by reason of insanity and diminished capacity and the general allegations of self-defense as they may relate to his diminished capacity only[.]"
At the hearing, Daniel Mizell (" attorney Mizell" ) testified that he practiced law with attorney Deputy at the time attorney Deputy's firm was defending Shore. Attorney Mizell, upon direction of attorney Deputy, obtained and reviewed Shore's Social Security disability file and medical records for the purpose of investigating a possible diminished capacity defense. Attorney Mizell contacted Dr. Dale Halfaker (" Dr. Halfaker" ), a neuropsychologist who had examined Shore in the past, to determine if he would serve as an expert witness.
At attorney Mizell's request, Dr. Halfaker reviewed Shore's medical records and then had a telephone conference with attorney Mizell. Attorney Mizell discovered that Dr. Halfaker's associate, Dr. Steven Akeson (" Dr. Akeson" ), performed cognitive testing of Shore for Shore's Social Security disability claim and wrote a consultative report approximately six months before the murder. In his report, Dr. Akeson concluded that Shore appeared to have an
'underlying personality disorder with narcissistic and possibly antisocial traits present,' that he did 'appear to have a degree of depression,' that . . . 'his cognitive skills appear[ed] generally intact,' and that there did not appear to be 'enough evidence of cognitive decline to warrant a vascular dementia diagnosis.' Dr. Akeson did make a 'provisional diagnosis of cognitive disorder' not otherwise specific 'due to some problems with attention and mental control, relative to his reported premorbid functioning.
Dr. Akeson's diagnosis was that [Shore] was depressed, had a non-specific cognitive disorder, abused alcohol and had a personality disorder with ...