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Murphy v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

March 7, 2017

ELEX L. MURPHY, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of the City of St. Louis 1422-CC10210 Honorable Thomas J. Frawley

          Gary M. Gaertner, Jr., Judge.

         Introduction

         Elex L. Murphy (Movant) appeals the motion court's denial of his motion for post-conviction relief under Rule 29.15[1] 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.

         Background

         In 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.

         Movant 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.

         Movant 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.

         Standard of Review

         Our 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. Id.

         In 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).

         Discussion

         Movant 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 manslaughter.

         Poin ...


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