Court of Appeals of Missouri, Southern District, Second Division
APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY. Honorable Kenneth M. Hayden, Circuit Judge.
MARK A. GROTHOFF, Columbia, MO, for Appellant.
GREGORY L. BARNES, Jefferson City, MO, for Respondent.
DON E. BURRELL, J. - OPINION AUTHOR. MARY W. SHEFFIELD, P.J. - CONCURS, GARY W. LYNCH, J. - CONCURS.
DON E. BURRELL, J.
In June 2006, a jury found Danny Ray Wolfe (" Movant" ) guilty of two counts of first-degree murder, two counts of armed criminal action, and one count of first-degree robbery for offenses committed against Leonard and Lena Walters in February 1997. See sections 565.020, 569.020, and 571.015. This court affirmed Movant's convictions and sentences on direct appeal in State v. Wolfe, 344 S.W.3d 822, 841 (Mo. App. S.D. 2011).
Movant now appeals the denial of his Rule 29.15 post-conviction relief motion (" motion" ) after an evidentiary hearing (" the evidentiary hearing" ). Movant contends the motion court clearly erred in denying relief because Movant proved that he received ineffective assistance of counsel when his trial counsel: (1) failed " to adduce evidence that Terry Smith was the actual perpetrator of the murders" ; and (2) failed to call two witnesses, Timothy Whittle and Joyce Whittle, who would have contradicted the testimony of State's witness Jessica Cox and " establish[ed] that other persons had committed the murders[.]"
Movant contends that but for trial counsel's ineffective representation, " a reasonable probability exists that the result of [his] trial would have been different."
Because the motion court did not clearly err in finding that the decisions Movant now challenges constituted reasonable trial strategy, we deny Movant's points and affirm the motion court's denial of post-conviction relief.
Applicable Principles of Review and Governing Law
We begin our analysis with a presumption that the motion court's findings and conclusions are correct, Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009); we will reverse the decision of the motion court only if we determine that its findings and conclusions are clearly erroneous. Matthews v. State, 175 S.W.3d 110, 113 (Mo. banc 2005).
To be entitled to post-conviction relief for ineffective assistance of counsel, the movant must satisfy a two-prong test. First, the movant must show that his counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would exercise in a similar situation.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, the movant must show that trial counsel's failure prejudiced the defendant. Id. Both of these prongs must be shown by a preponderance of the evidence in order to prove ineffective assistance of counsel.
Zink, 278 S.W.3d at 175. " The movant bears the burden of proving grounds for relief by a preponderance of the evidence." Nicklasson v. State, 105 S.W.3d 482, 484 (Mo. banc 2003).
When it comes to decisions of trial strategy, there is a strong presumption that strategic decisions made by trial counsel are reasonable. Matthews, 175 S.W.3d at 115. Such decisions may serve as a basis for granting post-conviction relief only if they are unreasonable; " [t]he choice of one reasonable trial strategy over another is not ineffective assistance." Zink, 278 S.W.3d at 176.
Facts and Procedural Background
The Underlying Offenses
We draw upon our Wolfe opinion for this summary of the evidence without further attribution. 344 S.W.3d at 825-30, and 835. As on direct appeal, we present that evidence as viewed in the light most favorable to the verdicts, Storey v. State, 175 S.W.3d 116, 125 (Mo. banc 2005), and we recount only those facts necessary to address Movant's ineffective-assistance claims. We also " view the record in the light most favorable to the motion court's judgment, accepting as true all evidence and inferences that support the judgment and disregarding evidence and inferences that are contrary to the judgment." Hardy v. State, 387 S.W.3d 394, 399 (Mo. App. S.D. 2012). We will recite some evidence that was unfavorable to the judgments, but we do so only to provide the necessary context for Movant's ineffective assistance claim.
In February 1997, Mr. and Mrs. Walters had a Cadillac for sale. That same month, Movant had unsuccessfully offered to sell Gregory Addington a .25 caliber pistol.
Late on the night of Wednesday, February 19, 1997, Jessica Cox went to a bar. Movant approached her there and introduced himself. Movant wanted Ms. Cox to sell drugs for him, and at around 1:00 a.m. on Thursday morning, Ms. Cox left the bar with Movant in his truck to get the drugs. They eventually wound up at Movant's hotel,
where Movant donned a camouflage jacket and nylon " parachute" pants.
Movant and Ms. Cox left the hotel around 4:30 a.m. They stopped at a gas station, and Movant told Ms. Cox to buy a pair of jersey gloves. They proceeded to Greenview, where Movant pointed out the Walters residence and said that they would be going there. Movant drove past the residence and parked by the road. Movant told Ms. Cox that Mr. and Mrs. Walters had money, they were expecting him early in the morning to test-drive the Cadillac, and that he intended to rob them. Movant put on gloves; he also handed Ms. Cox a pair of gloves, telling her that she should wear them.
Around 6:00 a.m., the pair returned to the Walters residence, and Movant parked behind the Cadillac. Mrs. Walters answered the door, and Mr. Walters walked out to the Cadillac. Movant told Ms. Cox to join them, and Mr. Walters invited Ms. Cox to drive the car. Ms. Cox asked Mr. Walters to come with her on the test drive, and he agreed to do so. Mr. Walters was riding in the front passenger seat, and Movant was sitting behind him in the back seat.
As Ms. Cox drove back toward the Walters residence, she " heard a loud bang[.]" When she looked over, Mr. Walters took " his last breath" and put his head down. Ms. Cox also saw something that " looked like a barrel of a gun." Movant took Mr. Walters's wallet and remarked, " [T]his guy is loaded."
When they reached the Walters residence, Movant told Ms. Cox to get into his truck, and Movant went inside the house. Ms. Cox heard a " commotion." She also heard other noises, including a shot, emanating from the house. After about seven or eight minutes, Movant came out of the house, and he was carrying a safe. He put the safe in the bed of his truck and drove to a wooded area. Movant took the safe and some tools into the woods, and Ms. Cox saw him open the safe with the tools. Movant put some items from the safe into his pocket, leaving the safe and some papers on the ground.
Movant then drove to some condominiums, where he asked the custodian for a key to a storage shed. The custodian observed that Movant was wearing silky, nylon pants.
Movant went to another location at the condominiums for five to ten minutes. When he returned to the truck, Movant was wearing white painter's pants and a sweatshirt. Movant told Ms. Cox that he had thrown the gun into the lake. Around 8:00 a.m., Movant drove to a shopping center near Camdenton and bought some paint. Ms. Cox asked Movant to take her to the Osage Beach Hospital, where he dropped her off and gave her $540 in cash. Movant told Ms. Cox that he would kill her and her family if she told anyone what had happened. Ms. Cox called some friends and told them that she had been kidnapped.
Around 8:30 a.m. on February 20th, a propane gas deliveryman, Kenneth Stoller, drove past the Walters residence and noticed a man sitting in the front passenger seat of the Cadillac that was for sale. When Mr. Stoller came back from the opposite direction, at around 10:30 a.m., he still saw a man ...