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Johnson v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

February 14, 2017


         Appeal from the Circuit Court of the City of St. Louis, Missouri 1322-CC01318 Honorable Philip D. Heageny



         Justin 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).

         Johnson now appeals the denial following an evidentiary hearing of his Rule 29.15[1]motion 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.

         Standard of Review

         Appellate 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. Id.


         A. 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 counsel.

         Johnson 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.

         To 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).

         A 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).

         At the 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.

         Regarding 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 be removed.

         Based 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 ...

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