Court of Appeals of Missouri, Western District, Third Division
Appeal from the Circuit Court of Platte County, Missouri. The Honorable Owens Lee Hull, Jr., Judge.
S. Kate Webber, Kansas City, MO, for appellant.
Dora Fichter, Jefferson City, MO, for respondent.
Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge. All concur.
Cynthia L. Martin, Judge
Cavona C. Flenoy (" Flenoy" ) appeals the denial of her Rule 24.035 motion following an evidentiary hearing. Flenoy claims her trial counsel failed to adequately advise her about the law of self-defense given her youth and mental health issues, and that but for her failure to understand the law of self-defense as applied to her case, she would not have chosen to plead guilty. Because Flenoy's claim on appeal was not asserted in her post-conviction motion, the claim has been waived and is not subject to our review. The judgment denying Flenoy's 24.035 motion is affirmed.
Factual and Procedural Background
Flenoy was charged in the Circuit Court of Platte County with murder in the second degree, armed criminal action, stealing a motor vehicle, and stealing a credit card. She pled guilty to these charges on December 9, 2010. During the guilty plea hearing, the state indicated it would present the following evidence against Flenoy if the case were to proceed to trial:
Your Honor, if this case were to be tried, the state would prove that March 9, 2010, at 7:23 p.m., officers of the Riverside Department of Public Safety were dispatched to 4911 N.W. Gateway Drive, Apartment 23, here in Platte County, Missouri. On their arrival they contacted a resident identified as Hany S. Osman. Mr. Osman advised officers that his roommate was lying on the floor covered with blood just inside the apartment doorway. The officers and the responding fire personnel and EMS workers determined that the injured subject had suffered apparent multiple gunshot wounds. He was identified as Hassan A. Abbas and lived in that apartment. Mr. Abbas was unconscious and unresponsive. However, a faint pulse was found by EMS workers and he was transported to North Kansas City Hospital where he was later pronounced dead. The scene was secured by officers; detectives and Kansas City Missouri Police Department Crime Scene Investigative Unit officers processed the apartment crime scene.
Investigation of the scene determined the victim's car, a 1995 dark blue Honda Accord with Missouri license plate No. CA1-S4F was missing from the parking lot of the apartment complex along with keys to the vehicle and the victim's wallet and cell phone. It was later determined that the victim had sustained multiple gunshot wounds to the chest, face, and side. Spent .40 caliber shell casings and spent bullet rounds were recovered from the victim's bedroom. Apparent blood was found on the victim's bedroom and on the bedroom wall and floor. Small size 7 pair of women's tennis shoes were also found in the bedroom. A subsequent autopsy of Mr. Abbas determined the victim died as the result of multiple gunshot wounds to the torso, according to the Jackson County Medical Examiner's Office.
Further investigation determined that the victim had recently been introduced to a young black female in the Kansas City, Kansas area and that he had brought her to the apartment over the previous weekend on two occasions. The woman was described as a black female in her early 20's, five feet to five feet two inches, a hundred and twenty
pounds, medium complexion, with short hair. Her name was not initially known. However, subsequent investigation resulted in the identification of that young black female as Cavona C. Flenoy, the defendant in this case. Two witnesses identified Ms. Flenoy from a photo spread of six young black females with similar features.
On March 11, 2010 Ms. Flenoy was seen in a parking lot in Kansas City, Kansas, driving the victim's vehicle. The investigation also revealed that [t]he defendant had attempted to use the victim's credit card at a gas station following the murder.
On March 11, 2010, detectives located the defendant and asked her if she would be willing to accompany them to answer some questions. The defendant volunteered to accompany detectives to the Riverside Department of Public Safety to be interviewed. The defendant did not ask what the detectives wanted to talk to her about, but she was cooperative.
The detective initiated an interview and advised the defendant of her Miranda Rights which she acknowledged she understood and signed a standard Miranda Waiver form. During the interview the defendant acknowledged that she shot the victim several times with a .40 caliber handgun she had purchased from a friend of her cousin the Saturday previous, that would be March 6, 2010, for a hundred dollars. She had the handgun in a backpack and she -- and she had that backpack with her, including the gun, when the victim brought her back to his apartment at around 6:30 p.m. on March 9, 2010. The defendant also admitted that she took the victim's car when she ran from the apartment. She later changed the license plate on the victim's car to her old license that she had on a Honda car. She acknowledged that she also had the victim's wallet and attempted to buy gas for his Honda with one of his credit cards. The Honda was subsequently located where the defendant was first contacted by detectives.
During a break in the interview with the defendant, the defendant was left alone in the interview room with a pad of paper. Among other things, she wrote on that pad of paper, and I quote, [" ]I push him down like I was going to fuck him. I got the gun and I just pulled the trigger."
That would be the state's evidence in this case, Your Honor.
Flenoy's trial counsel advised the plea court that the state's recitation of the evidence was consistent with what had been revealed through discovery. Trial counsel also advised the plea court " that my client has indicated to me that she has somewhat of a self-defense argument but that she is wanting to set that aside for purposes of the plea as we don't believe that -- it may not rise to the legal standard to pass through a jury. But it is something that she will want to present in sentencing as kind of surrounding circumstances." Trial counsel then asked Flenoy to confirm that she understand the evidence the state had recited, and that " we've discussed any potential defenses, but you wish to set those aside at this time and go forward with the plea. Is that correct?" Flenoy answered, " Yes."
The plea court asked Flenoy to confirm certain of the salient facts recited by the state. Relevant to this case, the plea court then asked Flenoy:
Plea Court: And from what I understand of what [trial counsel] has said, that there may be a self-defense argument that -- that might be made. Do you understand if you enter a ...