Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of Franklin County 15AB-CC00117
Honorable Keith M. Sutherland
M. Gaertner, Jr, Judge.
Weinhaus (Movant) appeals the motion court's denial of
his motion for post-conviction relief under Rule
29.15. 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.
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.
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
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
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
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.
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.
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.
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.
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
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 ...