Court of Appeals of Missouri, Eastern District, Fourth Division
JUSTIN F. JOHNSON, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of the City of St. Louis, Missouri
1322-CC01318 Honorable Philip D. Heageny
M. DOWD, PRESIDING JUDGE.
F. Johnson was convicted after a bench trial of first-degree
murder, first-degree assault, and two counts of armed
criminal action arising out of a fight between Johnson and
Terryl Morgan ("Victim") at the comer of 9th and
Cole Street in the City of St. Louis that ended with Johnson
shooting and killing Victim and firing a shot at a nearby
witness's vehicle. The trial court sentenced Johnson to
life imprisonment for the first-degree murder conviction and
to concurrent terms of fifteen years' imprisonment on
each of the remaining charges. Johnson's convictions were
affirmed on direct appeal. See State v. Johnson, 393
S.W.3d 618 (Mo.App.E.D. 2013).
now appeals the denial following an evidentiary hearing of
his Rule 29.15motion for post-conviction relief. Johnson
raises two points: (1) that his trial counsel was ineffective
for failing to file a motion to withdraw as his attorney due
to an irreconcilable conflict between them; and (2) that his
trial counsel was ineffective for failing to object and
request a mistrial after the trial judge had ex
parte communications with Victim's brother and the
victims' services advocate during the trial. Finding no
clear error, we affirm.
review of the denial of a Rule 29.15 motion is limited to a
determination of whether the motion court's findings,
conclusions, and judgment are clearly erroneous. Anderson
v. State, 196 S.W.3d 28, 33 (Mo.banc 2006). Findings and
conclusions are clearly erroneous if after a review of the
entire record we are left with the definite and firm
impression that a mistake has been made. Id. We
presume that the motion court's findings are correct.
The motion court did not clearly err in denying Johnson's
ineffective assistance claim based on his trial
attorney's failure to move to withdraw as Johnson's
argues that he received ineffective assistance of counsel
because his trial attorney failed to move to withdraw as his
trial counsel. Johnson asserts that counsel should have tried
to withdraw because a complete breakdown of the
attorney-client relationship had occurred after he and his
attorney argued over whether counsel would review videotape
evidence with him. Finding no clear error, we affirm.
prove the ineffective assistance of trial counsel, the movant
must satisfy the following two-prong test from Strickland
v. Washington, 466 U.S. 668, 687 (1984): 1) that
counsel's performance did not conform to the degree of
skill and diligence of a reasonably competent attorney; and
2) that as a result thereof, the movant was prejudiced.
Zink v. State, 278 S.W.3d 170, 75 (Mo.banc 2009).
The movant must overcome a strong presumption that
counsel's performance was reasonable and effective to
meet the first prong. Id. at 176. To satisfy the
second prong, the movant must show that there was a
reasonable probability that, but for counsel's alleged
errors, the outcome would have been different. Id.
If either the performance or the prejudice prong is not met,
then we need not consider the other and the claim of
ineffective assistance must fail. State v. Simmons,
955 S.W.2d 729, 746 (Mo.banc 1997).
criminal defendant has no absolute right to a particular
attorney. State v. Johnson, 328 S.W.3d 385, 398
(Mo.App.E.D. 2010). To warrant substitution of appointed
counsel, a defendant must demonstrate justifiable
dissatisfaction with counsel. Wilson v. State, 383
S.W.3d 51, 56 (Mo.App.E.D. 2012). Mere dissatisfaction with
counsel is not enough; a defendant's dissatisfaction must
be justifiable before the Sixth Amendment requires the
appointment of substitute counsel. Id. Examples of
justifiable dissatisfaction include a conflict of interest,
an irreconcilable conflict, or a complete breakdown in
communication between the attorney and the defendant.
Johnson, 328 S.W.3d at 398. Disagreement about trial
strategy or a general dissatisfaction with the amount of time
a defendant is able to spend with counsel is insufficient to
establish a total breakdown in communication. State v.
Cobbins, 445 S.W.3d 654, 659 (Mo.App.E.D. 2014). Whether
counsel should be permitted to withdraw rests within the
sound discretion of the trial court. State v.
Kennel!, 605 S.W.2d 819, 820 (Mo.App.S.D. 1980).
evidentiary hearing, Johnson testified that he wanted his
attorney to withdraw prior to trial because they had an
argument over whether his attorney had time to review
videotape evidence with him. Johnson testified that his
attorney told him she did not have time to review the tape
with him so he lost trust in her and wanted her to withdraw
from his case. Further, Johnson testified that his attorney
indicated that she would remove herself if he filed a motion
with the court, and that after he wrote a letter to the court
requesting her removal, she failed to remove herself so he
proceeded to trial with her as his counsel.
the video evidence, Johnson's trial attorney testified
that Johnson wanted someone to watch the video with him so
that he could take notes, but that she did not have time to
do that so she asked the jail authorities to give Johnson a
copy of the tape to watch without her being present. Trial
counsel testified that from her review of an email she did
not believe Johnson received a copy of the tape. She could
not recall if Johnson told her he wanted a different attorney
or if Johnson filed anything with the court asking that she
on this evidence, the motion court, the same judge who
presided over Johnson's trial, denied Johnson's
claim. The court found that Johnson failed to show an
irreconcilable conflict or that his trial counsel failed to
do something that ...