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Pherigo v. State

Court of Appeals of Missouri, Southern District, Second Division

November 24, 2015

DANIEL LEE PHERIGO, Movant-Respondent
v.
STATE OF MISSOURI, Respondent-Appellant

APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY. Honorable Carr L. Woods, Senior Judge.

For Appellant State of Missouri: Chris Koster, Attorney General, and Adam Rowley and Rachel Flaster, Assistant Attorneys General, Jefferson City, Missouri.

For Movant: Emmett D. Queener, Columbia, Missouri.

GARY W. LYNCH, J.-Opinion author. DON E. BURRELL, P.J.-concurs. NANCY STEFFEN RAHMEYER, J.-concurs.

OPINION

GARY W. LYNCH, J.

The State of Missouri appeals the motion court's judgment granting Daniel Lee

Page 234

Pherigo's (" Movant" ) Rule 29.15[1] motion for post-conviction relief finding that Movant received ineffective assistance of counsel. The State claims the motion court clearly erred in finding Movant's trial counsel was ineffective: (1) for failing to request a continuance in response to the State's late disclosure on the morning of trial of two recorded interviews of Movant, a supplemental report pertaining to those interviews, and recorded interviews of three of Movant's co-defendants, because the disclosed evidence was not Brady[2] material and Movant invited the error; (2) for failing to move for a mistrial when the State disclosed, during trial, that there was a security video of someone leaving the victim's home in a stolen vehicle, because such failure was reasonable trial strategy and Movant did not allege prejudice; and (3) for failing to make an adequate record containing the recorded interviews of the three co-defendants, because the evidence at issue was not Brady material and such a claim is not cognizable in a post-conviction proceeding. Finding no clear error in the motion court's finding that trial counsel was ineffective for failing to request a continuance and that this determination is dispositive of this appeal, we affirm.

Factual and Procedural Background[3]

Rex and Carol Malson lived in Branson and, in September 2010, went on vacation. On September 29, 2010, Deputy Donald Piveral of the Taney County Sheriff's Department received a report of a burglary at the Malsons' home. When he arrived at the scene, the front door and garage door of the residence were open. Items in the home were strewn about. Deputy Piveral photographed the scene, secured the residence, and left. Later, he determined that a silver Mercedes had been taken from the home.

The following day, as he was on his way to another investigation, Deputy Carl Pride, also of the Taney County Sheriff's Department, noticed a silver Mercedes that matched the description of the one missing from the Malsons' home. The trunk was open, and two people were standing outside the car. He notified Detective Roger Ellis, who responded to the location. As he arrived, Detective Ellis saw Movant transfer two backpacks from the silver Mercedes to a red BMW parked nearby. Detective Ellis approached Movant and asked if Movant had any identification. Movant asked what the problem was, and Detective Ellis told Movant that the vehicle had been reported stolen. Movant reached into a blue backpack, and Detective Ellis " told him he better come out with his ID and nothing else." Movant " put his hands in the air and said 'it's not worth it.'" Detective Ellis handcuffed Movant and sat him on the ground. Movant's companion, who was still sitting in the driver's seat of the Mercedes, identified herself as Teresa Buckner. Movant told officers that Buckner had borrowed the car from a man named Matt and that she had told Movant to take the bags from the Mercedes and put them in the BMW.

Detective Ellis seized the backpacks. There were no identification documents for Movant in the backpacks. One of the backpacks did contain a pair of gloves, a loaded pistol, and an American Express credit card with Carol Malson's name on it. The officers took the Mercedes back to the

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sheriff's department to inventory it. They found personal papers belonging to the Malsons in plain view ...


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