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Weinhaus v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

October 18, 2016


         Appeal from the Circuit Court of Franklin County 15AB-CC00117 Honorable Keith M. Sutherland

          Gary M. Gaertner, Jr, Judge.


         Jeffrey Weinhaus (Movant) appeals the motion court's denial of his motion for post-conviction relief under Rule 29.15.[1] He argues the motion court clearly erred in denying his motion without an evidentiary hearing because he pled unrefuted facts showing that his trial counsel was ineffective for failing to call certain witnesses at trial. We affirm.


         In 2013, a jury convicted Movant of felony possession of a controlled substance, misdemeanor possession of 35 grams or less of marijuana, first-degree assault of a law enforcement officer, and armed criminal action. In the light most favorable to the verdict, the evidence at trial, as relevant to this appeal, was the following.[2]

         On August 18, 2012, Missouri State Highway Patrol Sergeant James Folsom (Sergeant Folsom) received a phone call from Missouri Circuit Court Judge Kelly Parker regarding a video Movant had posted online, in which Movant had threatened judicial officers, including Judge Parker. Sergeant Folsom reviewed the video. In it, Movant stated that "the People" will "fire" various Missouri officials including the State Courts Administrator, as well as various circuit judges, lawyers, and policemen. Movant also generally referenced corrupt officials and "[his] right to blast you motherf[. . .]ers out of there if we have to." Movant also stated "we have the right to remove you use [sic] of force." Movant stated that "September 14 will be the last day of the Defacto Court. You all [are] fired and will be considered trespassers after that time."

         Sergeant Folsom also met with Crawford County officials. Sergeant Folsom discovered that the 911 dispatch center and the courthouse had increased their security because Movant had come to both places and "had put everyone on edge." Sergeant Folsom consulted with other law enforcement officials, and they decided Sergeant Folsom should visit Movant in order to determine whether he actually intended to harm anyone.

         On August 22, 2012, Sergeant Folsom and Corporal Scott Mertens (Corporal Mertens) went to Movant's home in Franklin County, Missouri. When Movant stepped outside his residence to speak with the State Troopers, they detected a strong odor of marijuana. After discussing the videos with Movant, the State Troopers asked Movant whether there was marijuana in the house. Movant replied that there was not. Sergeant Folsom and Corporal Mertens detained Movant until other State Troopers arrived, and Sergeant Folsom obtained a search warrant to search the house. During the search of Movant's basement, State Troopers seized drug paraphernalia, scales, a plastic container holding marijuana, a bag containing marijuana, and a small tin containing pills that were later identified as morphine. They also seized computer equipment and video cameras. They found a gun in the nightstand of a dresser in the master bedroom of the home, but it was properly registered to Movant's wife and was not evidence of any crime, so they did not seize it. After the search, Sergeant Folsom gave Movant an inventory of the items they had seized as well as Sergeant Folsom's business card.

         Shortly thereafter, Movant began sending emails to Sergeant Folsom asking for the name of Sergeant Folsom's attorney. Movant also filed a writ of replevin requesting his computers back. Movant called Sergeant Folsom's supervisors complaining that Sergeant Folsom had stolen Movant's computer, and Movant also posted a video online in which he said he "should have placed a bullet in [Sergeant Folsom's] head." Movant also posted a video stating he was at his home with his guns loaded.

         In the meantime, Sergeant Folsom had met with his supervisors, and they had decided that they were going to arrest Movant for possession of drugs and judicial tampering. Sergeant Folsom contacted Movant and arranged to meet in a public place. Sergeant Folsom did not want to go to Movant's home, due to what Movant had said in the videos, and Sergeant Folsom was pleased to hear Movant make the initial suggestion to meet in a public place. Sergeant Folsom told Movant this meeting was for the purpose of returning Movant's computer equipment, but Sergeant Folsom planned to arrest Movant when they met. Sergeant Folsom also sought to have other law enforcement officials accompany him and Corporal Mertens when they met Movant. Sergeant Folsom contacted the Franklin County Sheriffs Department to assist in serving the arrest warrant, but no one was available. Sergeant Folsom then contacted two FBI agents they had worked with, who agreed to go.

         The State Troopers and federal agents were all at the gas station where they had agreed to meet Movant before Movant arrived. Sergeant Folsom and Corporal Mertens parked in a visible area near the road so they could see Movant arrive, and the FBI agents were in plain clothes and were on the other side of the gas station. Movant pulled into the gas station at a high rate of speed and was removing his seatbelt as he drove past the State Troopers. Once Movant parked, Sergeant Folsom walked toward Movant's vehicle and began to talk to him. Sergeant Folsom was carrying a manila envelope containing the arrest warrant. Sergeant Folsom told Corporal Mertens to go to the back of the police vehicle and open the trunk so that Movant would believe Corporal Mertens was retrieving Movant's computer equipment.

         Sergeant Folsom testified that Movant had exited his vehicle and was facing Sergeant Folsom in a "bladed position": at a 45-degree angle, with one foot in front of the other. Sergeant Folsom stepped around Movant's vehicle and saw a holster on Movant's right hip that contained a handgun. While asking Movant why he had a gun, Sergeant Folsom removed his own handgun from the holster on his hip and held it down by his side in front of his hip. Movant said he was authorized to have a gun, and he moved his right hand to his holster and began manipulating the flap on the holster. Sergeant Folsom ordered Movant to get down on the ground, and Movant did not comply, but turned and squarely faced Sergeant Folsom. Movant opened the flap of the holster and placed his hand on the buttstock of the weapon.

         Sergeant Folsom raised his weapon and again ordered Movant to get on the ground. Corporal Mertens also ordered Movant to get down on the ground. Movant replied, "you're going to have to shoot me" and continued to draw his weapon. Sergeant Folsom saw the gun nearly out of the holster, and at that point he fired two shots into Movant's chest and one into Movant's head. Corporal Mertens also fired a shot at Movant because he believed Movant was a threat to Sergeant Folsom. Sergeant Folsom heard the shot and fired an additional shot into Movant's head. Movant collapsed onto the ground. Corporal Mertens called an ambulance while Sergeant Folsom handcuffed Movant and took Movant's gun from his hand, with FBI Agent Mike Maruschak covering Sergeant Folsom.

         The State charged Movant with possession of a controlled substance (morphine), tampering with a judicial officer, possession of up to 35 grains of marijuana, assault of a law enforcement officer in the first degree (against Sergeant Folsom), assault of a law enforcement officer (against Corporal Mertens), two counts of armed criminal action, and resisting arrest. At trial, after the State presented testimony from Sergeant Folsom, the State offered a video into evidence. The video was taken from a camera that was on a watch that Movant had been wearing at the gas station, and it captured the entire incident. At the close of the State's evidence at trial, the trial court granted Movant's motion for judgment of acquittal on the charges of tampering and resisting arrest. The trial court concluded that Movant's ...

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