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Christian v. State

Court of Appeals of Missouri, Southern District, Second Division

September 2, 2016

STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Tony W. Williams Associate Circuit Judge


          DON E. BURRELL, P.J.

         A jury found Vernon George Christian ("Movant") guilty of the class C felony of forgery. See section 570.090.[1] The trial court imposed a six-year sentence, and this court affirmed Movant's conviction and sentence on direct appeal in State v. Christian, 364 S.W.3d 797 (Mo. App. S.D. 2012). Movant now appeals the denial of his amended Rule 29.15 motion after an evidentiary hearing.[2]

         In two points, Movant claims the motion court clearly erred in denying relief because his trial counsel was ineffective in: (1) failing to object when the prosecutor introduced evidence that Movant had invoked his Fifth Amendment right to remain silent in a deposition he gave in a related civil suit; and (2) failing to object to other (unspecified) "evidence" of that civil suit. Finding merit in Movant's first point, we reverse the denial of post-conviction relief and remand the matter for a new trial.[3]

         Standard of Review and Governing Law

         We presume the findings of the motion court correct, Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005), and we will reverse only if they are clearly erroneous. Rule 29.15(k); Johnson v. State, 333 S.W.3d 459, 463 (Mo. banc 2011). "Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made." Price v. State, 422 S.W.3d 292, 294 (Mo. banc 2014).

To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test in order to prove his or her claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a movant must demonstrate that: (1) his or her counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation, and (2) he or she was prejudiced by that failure. Id. at 687, 104 S.Ct. 2052.
. . . .
To establish the prejudice requirement of Strickland, a movant must prove prejudice. Prejudice occurs when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Deck v. State, 68 S.W.3d 418, 429 (Mo. banc 2002) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).[4]

Johnson v. State, 388 S.W.3d 159, 163 (Mo. banc 2012).

         "To justify relief on a post-conviction motion, the failure to object 'must have been of such character as to deprive the defendant substantially of his right to a fair trial.'" Ervin v. State, 80 S.W.3d 817, 822 (Mo. banc 2002) (quoting State v. Bearden, 926 S.W.2d 483, 486 (Mo. App. S.D. 1996)). "The movant must prove that a failure to object was not strategic and that the failure to object was prejudicial. Counsel will not be deemed ineffective for failing to make nonmeritorious objections." State v. Clay, 975 S.W.2d 121, 135 (Mo. banc 1998) (citation omitted).

         Evidentiary and Procedural Background

         Based on the applicable standard of review, our summary of the relevant facts supporting Movant's conviction on direct appeal included only evidence favorable to the jury's verdict. To place Movant's ineffective assistance claim in context, we here include some additional evidence and procedural background.[5]

         James King ("King") provided the following testimony at the November 2010 trial. King had purchased the property at 4688 Gunnison Road ("the property") through a realtor, King's deed to the property was filed in the Taney County Recorder's Office, and King began making mortgage payments and paying property taxes on the property (which consisted of land and a cabin).

         In November 2007, King realized that he had not received a property tax bill. He called the Taney County Collector's Office and was told that he had not received one because he no longer owned the property. King learned that a deed purportedly signed by him on November 22, 2006 had transferred the property to Movant and Mike Olson ("Olson"). The signature on the deed purporting to be King's was notarized by Edmund E. Barker ("Barker").

         King testified that he did not sign the deed and had never seen it before it was shown to him at the collector's office. King said that he had never met Barker and had never had Barker notarize his signature. King also testified that he had never met either Movant or Olson before learning about the deed, and he denied ever having an agreement with them to sell or rent the property. King said that no one had paid him money for the property, no one had relieved him of his mortgage obligation, and no one else had paid any taxes on the property since King had acquired it in 2004.

         A handwriting expert, Don Lock ("Lock"), had been provided with the following materials for his examination: a statement and signature penned by King; Movant's signature on a statement he wrote for the sheriff's office; and the signature purported to be King's on the deed. Lock testified that the signature on the deed purporting to be King's was "nongenuine"; i.e., it had not been made by King. Lock also compared Movant's known signature to the signature on the deed purporting to be King's, and he testified that "[e]verything points toward [Movant] as the writer of the nongenuine signature with no unexplainable differences . . . . and nothing points away from him as a possible writer."

         During the State's case-in-chief, the prosecutor asked King, "Have you got the title back to [the property]?" When King replied that he had, the prosecutor asked, "How did you go about doing that?" King answered, "Through a civil bench trial. I had to hire an attorney . . . and finally a declaration was made . . . in September . . . 2008, transferring the documents back into my name."

         Also during the State's case-in-chief, the prosecutor read to the jury a portion of a deposition Movant had given in the civil suit about Movant's ownership of the property, and the "the pending criminal case" was referenced in the portion read to the jury. The portion the prosecutor read to the jury also included the following references to Movant's exercise of his right to refuse to answer questions based on the Fifth Amendment:

Q. Okay. How much did you pay for [the property]? Are you going to assert your Fifth Amendment right, sir?
A. Yes.
. . . .
Q. Okay. And how much -- did you tell me how much you paid for it?
A. No, I didn't.
Q. Do you remember or know?
A. I wasn't going to tell you.
Q. Okay. How much did you pay for it?
A. I'm going to stand on the Fifth Amendment. That's my business.
. . . .
Q. Okay. Now, then, when -- what were the circumstances that Mr. King would bring you this deed?
A. I'll stand on that.
Q. On your Fifth Amendment rights?
A. Yeah.
Q. So you're refusing to answer any questions about the circumstances of this deed being brought to you based on your Fifth Amendment rights?
A. Yes, sir.
Q. Okay. If I were to ask you any questions concerning the petition that was filed, would you also assert your Fifth Amendment ...

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