Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court of Marion County. Honorable Rachel Bringer Shepherd.
FOR APPELLANT: Mark A. Grothoff, Assistant Public Defender, Office of the Missouri Public Defender, Columbia, Missouri.
FOR RESPONDENT: Chris Koster, Attorney General, Karen Kramer, Assistant Attorney General, Jefferson City, Missouri.
Robert G. Dowd, Jr., J., Gary M. Gaertner, Jr., J., Concurs.
Kurt S. Odenwald, Presiding Judge
Franklin Riley (" Riley" ) appeals from the judgment of the motion court denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Riley claims that the motion court clearly erred in denying his motion because a review of the record leaves a definite and firm impression that he was denied effective assistance of counsel. Specifically, Riley asserts that trial counsel rendered ineffective assistance by: 1) failing to object and seek a mistrial after the venire panel had been tainted by certain inflammatory and prejudicial remarks made by two panel members, and 2) failing to object to a portion of the testimony by Corporal Matt Wilt (" Wilt" ) that constituted improper testimonial hearsay. Because Riley has failed to show he was prejudiced by either of trial counsel's failures to object, we affirm the judgment of the motion court.
Factual and Procedural History
Riley was charged by information with attempt to manufacture or produce a controlled substance and possession of anhydrous ammonia in a non-approved container. On March 16, 2011, the case was tried before a jury in the Circuit Court of Marion County.
During voir dire of the jury panel, the prosecutor had the following exchange with panel member 48:
PROSECUTOR: Are you willing to listen to all the evidence before you decide whether somebody's guilty or not?
PANEL MEMBER 48: Well, yeah.
PROSECUTOR: Okay. Have you already made up your mind that he's guilty?
PANEL MEMBER 48: Pretty much, yeah.
PROSECUTOR: How could you do that, sir, without having heard any of the evidence?
PANEL MEMBER 48: Well, I know him -- him and his dad.
PROSECUTOR: Okay. All right. Well, that's a whole different question.
PANEL MEMBER 48: All right. Sorry.
PROSECUTOR: Anybody else here know the defendant? Okay. Got a few hands. All right. And number 48, you do, too?
PANEL MEMBER 48: Yes.
PROSECUTOR: And you know his dad?
PANEL MEMBER 48: Uh-huh.
PROSECUTOR: And because you know his dad, you think you don't need to hear any evidence? You already know he's guilty?
PANEL MEMBER 48: Yeah.
PANEL MEMBER 48: 95 percent chance, yeah.
PROSECUTOR: All right. Okay. Thank you, sir.
The prosecutor then had the following exchange with panel member 13:
PROSECUTOR: All right. Juror number 13, you know ...