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Salazar v. State

Court of Appeals of Missouri, Southern District, Second Division

September 15, 2016

EDDIE A. SALAZAR, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable David C. Dally, Circuit Judge

          OPINION

          WILLIAM W. FRANCIS, JR., J.

         Eddie A. Salazar ("Salazar") appeals from the judgment of the motion court denying his amended Rule 29.15[1] motion to set aside his conviction for the class A felony of murder in the second degree. See § 565.021. Salazar challenges the judgment of the motion court in four points on appeal. Finding no merit to any of Salazar's points, we affirm the judgment of the motion court.

         Factual and Procedural Background[2]

         We set forth only those facts necessary to complete our review. In doing so, we view the evidence in the light most favorable to the motion court's judgment. McCauley v. State, 380 S.W.3d 657, 659 (Mo.App. S.D. 2012).

         On the evening of February 4, 2010, Salazar's son, while in Salazar's care, died from blunt force trauma to the head. Salazar then threw his son's body into a nearby river. He staged cuts and scrapes on himself to make it appear as though he had been in a fight. Salazar then called authorities and claimed that two men had entered his home and kidnapped his son. After Salazar gave several contradictory versions of what happened, his son's body was found in the river, and Salazar was charged by amended information as a prior offender for the class A felony of second-degree murder.

During a pre-trial motion hearing, the following colloquy occurred:
BY [TRIAL COUNSEL]: Judge, I am concerned about the way I understand we're going to conduct the voir dire with, I guess, 56 jurors, potential jurors brought into the courtroom. If we do that, that is going to take up every bit of the seating in the courtroom. I understand there is only limited seating in the courtroom, but on the other hand Mr. Salazar does have a right under the Sixth and the Fourteenth Amendments to the U.S. Constitution, Article I, Section 18A of the Missouri Constitution to a public trial. I'm sure there will probably be family members of Mr. Salazar, and perhaps other people that would like to attend the trial.
And I would ask for some accommodations, so it is possible to have a public presence during the entire trial including voir dire. Otherwise, I think he would be denied his right to a public trial.
BY THE COURT: They can attend the trial, but there is not going to be room in here during the voir dire and there is never room in here for the voir dire. And so I don't know of any accommodations that we can make. So that request is going to be denied.
On the morning of trial, the following occurred:
BY [TRIAL COUNSEL]: I think, finally, Judge, I've got this motion on the record from last week, but I do object to the exclusion of the public during voir dire on the basis of the 6th and 14th amendments to the United States Constitution Article I, Section 8 today and according to the Missouri State Constitution and the First Amendment to the United States Constitution.
BY THE COURT: All right. And so the record is clear we have summons - how many people, Carl? 60 - 63 people. We have normally room for 43 individuals in our courtroom. To make room for the extra people the Court has taken out chairs that are in front of the bar and put in a bench which still accommodates 53 people. 56 people.
And so that takes up every seat that we have in this courtroom. Counsel's table is full. In fact, I don't know where - if the prosecutors were planning on putting their . . . stuff. We have to cram them in as it is. So there is no room for anybody else in this courtroom and because of that during voir dire anybody else will be excluded from the courtroom.
BY [TRIAL COUNSEL]: Motion is overruled and continuing, Judge?
BY THE COURT: Yes.

         At trial, the State moved for admission in evidence of State's Exhibit 3, designated as a "DVD [Salazar] interview HP, " which referenced Salazar's prior prison time and drug use; State's Exhibit 6, designated as a "DVD [Salazar] interview CPD, " also referencing Salazar's prior prison time and drug use; and State's Exhibit 13, designated as a "Photo [Salazar] rt side stomach, " showing scratches on Salazar's body, but which also showed a tattoo Salazar claimed to be a "gang tattoo."[3] Trial counsel made general objections to the introduction of these exhibits, but the objections were overruled and the exhibits were admitted. Trial counsel did not make specific and timely objections to the references to drug use and prison time in State's Exhibit 6.

         The jury found Salazar guilty of second-degree murder, and Salazar was sentenced to life in prison. After his conviction was affirmed by this Court on direct appeal, mandate issued December 26, 2013.

         On March 24, 2014, Salazar filed a timely pro se Rule 29.15 motion for post-conviction relief. On April 23, 2014, post-conviction counsel was appointed. On July 20, 2014, after an extension was granted, counsel filed a timely Rule 29.15 amended motion. See Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015).

         A hearing was held on June 3, 2015. Salazar's trial counsel testified at the hearing, and Salazar's appellate counsel testified via deposition. On September 9, 2015, the motion court entered its "Findings of Fact, Conclusions of Law and Judgment" denying Salazar's Rule 29.15 motion. This appeal followed.

In four points on appeal, Salazar asserts:
1. The motion court clearly erred in finding that trial counsel was not ineffective for failing to make an offer of proof that there were people who attempted to attend voir dire, but were excluded, thereby depriving Salazar of a fair trial.
2. The motion court clearly erred in finding that appellate counsel was not ineffective for failing to raise on Salazar's direct appeal the issue that the trial court erred in admitting State's Exhibit 13, which contained evidence of what Salazar claims is a gang tattoo on his person.
3. The motion court clearly erred in finding that trial counsel was not ineffective for failing to object to the introduction of State's Exhibit 6, which contained a videotaped interview of Salazar in which he referenced his prior drug use and prison time.
4. The motion court clearly erred in finding that appellate counsel was not ineffective for failing to raise on Salazar's direct appeal the trial court's error in allowing the introduction of State's Exhibit 3, which contained a videotaped interview of Salazar in which he referenced having used drugs and serving prison time.

         Standard ...


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