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Brown v. State

Court of Appeals of Missouri, Southern District, Second Division

December 18, 2014

BRADLEY LEE BROWN JR., Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent

Page 848

[Copyrighted Material Omitted]

Page 849

APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY. Honorable Robin E. Fulton, Associate Circuit Judge.

AFFIRMED.

For Appellant: KEVIN B. GAU, Hannibal, MO.

For Respondent: JENNIFER A. RODEWALD, Jefferson City, MO.

MARY W. SHEFFIELD, P.J. -- OPINION AUTHOR. GARY W. LYNCH, J. -- CONCURS. DON E. BURRELL, J. -- CONCURS.

OPINION

MARY W. SHEFFIELD, P.J.

Page 850

Bradley Lee Brown, Jr., (" Movant" ) appeals from the motion court's denial of his Rule 29.15[1] motion for post-conviction relief. Movant's post-conviction motion challenged his convictions for first-degree domestic assault and armed criminal action. See § 565.072, RSMo Cum. Supp. (2008), § 571.015, RSMo (2000). Movant asserts several claims of ineffective assistance of counsel. Movant failed to prove these claims at the evidentiary hearing, and we affirm the motion court's judgment.

Factual and Procedural Background

On March 8, 2008, Movant stabbed his then-girlfriend Nancy McCormick (" Victim" ) 11 times. He was charged with first-degree domestic assault and armed criminal action. At his trial for the charges, Movant testified Victim was angry with him and while in a drug induced frenzy stabbed herself to get him in trouble. The jury rejected Movant's testimony, found Movant guilty, and Movant's convictions and sentences were affirmed on appeal. State v. Brown, 353 S.W.3d 412, 414 (Mo. App. S.D. 2011).

Movant timely sought post-conviction relief. An amended motion was filed on Movant's behalf. The motion court denied Movant's claims after an evidentiary hearing, and Movant appeals the denial of his claims.

Standard of Review and Legal Principles Applicable to All Points

When granted an evidentiary hearing in a post-conviction case, the movant has the burden of proving his claims " bye a preponderance of the evidence." Rule 29.15(i). Appellate review of the motion court's decisions in such cases is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k); Morgan v. State, 319 S.W.3d 514, 517 (Mo. App. S.D. 2010). " The findings of the motion court are presumptively valid." Morgan, 319 S.W.3d at 517 (quoting Fry v. State, 244 S.W.3d 284, 285 (Mo. App. S.D. 2008)). Thus, " [t]he motion court's findings and conclusions are clearly erroneous 'only if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made.'" Id. (quoting State v. Ervin, 835 S.W.2d 905, 928 (Mo. banc 1992)).

To prevail on a claim that his trial counsel provided ineffective assistance, " a movant must show that: '(1) counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney[; ]' and (2) counsel's poor performance prejudiced the defense." Id. at 518 (quoting State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998)). Prejudice exists " when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ' Morgan, 319 S.W.3d at 518 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Additionally, " [s]hould a movant fail to satisfy either element, the appellate court on review need not consider the other." Craig v. State, 410 S.W.3d 728, 731

Page 851

(Mo. App. W.D. 2013) (quoting Slater v. State, 147 S.W.3d 97, 101 (Mo. App. W.D. 2004)).

Point I

In his first point, Movant claims the motion court clearly erred when it found Andrea Zimmerman (" trial counsel" ), the attorney who represented Movant at trial, was not ineffective for failing to impeach the officer who initially responded to the scene of the stabbing with the officer's prior inconsistent statements and omissions which allegedly would have " implicated the quality of the police investigation, the legitimacy of his searches, and his believability." This argument is without merit.

Page 852

The following additional facts are relevant to the resolution of this claim. Officer Jason Hammontree of the City of Chaffee Police Department (" Officer Hammontree" ) was the first police officer to arrive on the scene. He searched the residence for ...


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