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Hawkins v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

March 7, 2017

DOMINIC LAMAR HAWKINS, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of the City of St. Louis Honorable James E. Sullivan

          KURT S. ODENWALD, JUDGE

         Introduction

         Dominic Lamar Hawkins ("Hawkins") appeals the denial of his Rule 29.15[1] motion after an evidentiary hearing. On appeal, Hawkins argues that his defense counsel was ineffective in creating a negative inference for the jury when he told the jury in his opening statement that Hawkins would testify, and then did not call Hawkins to testify at trial. Because defense counsel's decision to tell the jury that Hawkins would testify was a reasonable trial strategy, later complicated by an unforeseeable event, the motion court did not clearly err in denying Hawkins's claim of ineffective assistance of counsel. We affirm.

         Factual and Procedural History

         On the day of the crime, Hawkins pulled up in a Pontiac Grand Am beside a car containing Charles Meeks ("Meeks") and Asraella Aitch ("Aitch") and began shooting. Bullets struck Meeks and Aitch, but both lived. Meeks and Aitch identified Hawkins as the shooter based on their prior interactions.[2]

         Hawkins was charged with two counts of first-degree assault and two counts of armed criminal action. In his opening statement at trial, defense counsel stated:

[T]he evidence from the testimony of Mr. Hawkins will be that, one, he doesn't own a Grand Am. Two, he doesn't have a weapon like this .9 millimeter, he didn't own this particular weapon, and he didn't do the shooting on St. Louis Avenue.
He can't tell you exactly where he was. He can tell you his routine during that time period, that during that time period, he was with his girlfriend, Tia Hughes, that when he wasn't working in construction, that he was preparing his family, that he was getting ready to have a baby, that he was with her most every day all the time, but he wasn't on St. Louis Avenue, he didn't even own a car to drive, and at the times that he had to drive, he had to borrow Tia's mother's red car to drive and not all the time would she allow him to drive that car around.
You'll also get to observe Mr. Hawkins on the stand. You'll observe his demeanor. You'll get to observe what he looks like, and you'll get to observe any physical characteristics that Mr. Hawkins may have that may stand out in your mind if anybody would observe him even at a glance.

         Hawkins did not testify at trial, and the jury subsequently convicted him on all counts.

         After trial, Hawkins filed an amended Rule 29.15 motion asserting that defense counsel was ineffective (1) in promising the jury it would hear Hawkins's testimony and then not presenting it and (2) in failing to secure the testimony of Tia Hughes ("Hughes"), Hawkins's girlfriend, who would have corroborated his potential alibi defense.[3]

         The motion court held an evidentiary hearing, where defense counsel testified that he initially intended to present an alibi defense at trial. The alibi defense was to consist of the joint testimony of Hawkins and Hughes, both of whom were prepared to testify that Hawkins was with Hughes at her home around the time of the crime.

         To secure Hughes's testimony, defense counsel testified that he personally corresponded with Hughes and her mother, and he subpoenaed Hughes. Defense counsel testified that Hughes appeared with her mother at Hawkins's original trial date in May 2009, but the trial was continued. After that trial date, Hughes became difficult to reach. Between May 2009 and September 2009, defense counsel repeatedly attempted to contact Hughes through his investigator and by phone, but the attempts were unsuccessful. The day before trial in September 2009, defense counsel's investigator was able to contact Hughes's mother by phone. Hughes's mother became angry, informing the investigator that her daughter was a minor and that she did not want her daughter testifying at trial. Defense counsel testified at the hearing that he gave his opening ...


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