Court of Appeals of Missouri, Eastern District, Fourth Division
ELEX L. MURPHY, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of the City of St. Louis 1422-CC10210
Honorable Thomas J. Frawley
M. Gaertner, Jr., Judge.
Murphy (Movant) appeals the motion court's denial of his
motion for post-conviction relief under Rule
29.15 after an evidentiary hearing. He argues
the motion court clearly erred in failing to find his trial
counsel and his appellate counsel ineffective. We affirm.
2013, Movant was convicted by a jury of one count of
second-degree murder, one count of first-degree assault, and
two counts of armed criminal action (ACA). His convictions
arose out of an incident in which he punched two victims in
the head, a married couple ages 79 and 59. The older victim,
Hoang Nguyen (Mr. Nguyen) died at the hospital shortly after
this incident. His wife, Yen Nguyen (Mrs. Nguyen), had a
broken bone and three stitciies near her right eye. Movant
punched these two victims as part of a "knockout game,
" in which participants find someone to punch and try to
knock that person out with one punch. The trial court
sentenced Movant to concurrent terms of life and 15 years for
second-degree murder and the accompanying ACA charge,
respectively, to run consecutively with concurrent terms of
25 years and 12 years for first-degree assault and the
accompanying ACA charge, respectively.
appealed his convictions, and this Court reversed the ACA
convictions because Movant committed the crimes using only
his fist, and a fist is not a "dangerous
instrument" under the ACA statute. State v.
Murphy, 443 S.W.3d 721, 725 (Mo. App. E.D. 2014). This
Court affirmed Movant's convictions and sentences for
second-degree murder and first-degree assault, hi at 728.
timely filed a motion for post-conviction relief under Rule
29.15, and subsequently an amended motion through counsel,
raising several claims of ineffective assistance of trial
counsel and appellate counsel. The motion court held an
evidentiary hearing on the claims in Movant's motion.
After the hearing, the motion court found that Movant failed
to establish by a preponderance of the evidence that he was
entitled to relief. This appeal follows.
review of the denial of a Rule 29.15 motion is limited to the
determination of whether the motion court's findings and
conclusions are clearly erroneous. Rule 29.15(k); Gehrke
v. State, 280 S.W.3d 54, 56 (Mo. banc 2009). Findings
and conclusions are clearly erroneous when the appellate
court, after reviewing the entire record, is left with the
definite and firm impression that a mistake has been made.
order to be entitled to relief on Movant's claims of
ineffective assistance of counsel, Movant had to make two
showings by a preponderance of the evidence: (1) that
counsel's performance fell below the level of skill and
diligence of a reasonably competent counsel in a similar
situation, and (2) that Movant was prejudiced thereby.
Johnson v. State, 388 S.W.3d 159, 163 (Mo. banc
2012) (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)); see also Evans v. State, 70 S.W.3d
483, 485 (Mo. App. W.D. 2002) (test for ineffective
assistance of appellate counsel is "essentially the same
as that employed for trial counsel"). There is a strong
presumption that Movant's counsel's performance was
reasonable and effective. Id. If Movant fails to
demonstrate either counsel's ineffective performance or
prejudice, we need not consider the other. Smith v.
State, 276 S.W.3d 314, 317 (Mo. App. E.D. 2008).
raises four points on appeal. In Points I and II, he argues
that the motion court clearly erred in failing to find his
trial counsel ineffective. He argues in Point I that trial
counsel ineffectively failed to request a lesser-included
instruction for assault in the second degree, and in Point
II, that trial counsel failed to object when the prosecutor
stated during closing argument that Movant cried during Mrs.
Nguyen's testimony because "he knows he's
responsible for the pain and suffering." Points III and
IV involve appellate counsel's performance. In Point III,
Movant argues the motion court clearly erred in failing to
find his appellate counsel ineffective for choosing not to
argue on appeal that there was insufficient evidence on the
record from which the jury could find Movant guilty of
second- degree murder. Finally, in Point IV, Movant argues
his appellate counsel was ineffective for failing to argue on
appeal that the trial court erred in refusing Movant's
proffered lesser-included instruction on voluntary