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Houston v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

March 14, 2017

DWAYNE L. HOUSTON, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of the City of St. Louis, Missouri 1422-CC01274 Honorable Timothy J. Wilson

          OPINION

          James M. Dowd, Judge.

         Dwayne L. Houston was convicted after a jury trial of first-degree burglary, attempted forcible rape, and second-degree sexual misconduct. The trial court sentenced Houston to concurrent terms of seventeen years' imprisonment for the first-degree burglary and attempted forcible rape convictions. Houston's sentence for the second-degree sexual misconduct conviction was discharged for time served awaiting trial. Houston's convictions were affirmed on direct appeal. See State v. Houston, 467 S.W.3d 894 (Mo.App.E.D. 2015).

         Houston now appeals the denial following an evidentiary hearing of his Rule 29.15[1]motion for post-conviction relief. Houston raises one point on appeal: that his trial counsel was ineffective for failing to call witnesses to testify at his hearing on his motion for new trial in support of his claim of newly-discovered evidence. Specifically, Houston claims that certain witnesses should have been called to testify regarding the newly-discovered evidence that juror Rose Clemons had failed to disclose during voir dire that she knew Houston from an intimate relationship they had over a decade ago. Finding no clear error, we affirm.

         Factual and Procedural Background

         In the late 1990s, when Houston and Clemons were teenagers, they dated. In 2012, Houston was charged by a grand jury indictment with first-degree burglary, attempted forcible rape, and second-degree sexual misconduct. In January 2014, Houston was tried by a jury on those charges.

         During voir dire, all members of the venire panel were asked if they knew Houston. Clemons did not indicate that she knew Houston. Later, she also stated generally that she knew of no reason why she could not be fair. Throughout the three-day trial, neither Houston nor Clemons ever indicated that they knew one another. On January, 15, 2014, the jury found Houston guilty on all three counts.

         On January 21, 2014, Houston's trial attorney filed a motion for new trial, raising eight points of error. The motion did not raise any issue or argument regarding Clemons's prior relationship with Houston. On March 6, 2014, Houston informed his trial attorney that his cousin, Melvin Lane, told him that Clemons had contacted Lane's family to inform them that she was on the jury that convicted Houston.

         At the start of Houston's sentencing hearing, Houston's counsel informed the court that he had learned that Houston knew Clemons. Counsel asserted that Clemons had contacted Houston's family and let them know that she had dated Houston in the past and was on the jury that convicted him, but that she did not disclose that she knew Houston during voir dire. Counsel did not request an evidentiary hearing and did not submit any evidence in support of the claim. The trial court denied the motion for new trial, finding Clemons's answer given during voir dire that she did not know Houston to be credible.

         Houston filed a direct appeal, arguing that the trial court committed plain error by failing to hold an evidentiary hearing on his claim that Clemons was not an impartial juror. This court found no plain error because it found Houston's claim that he did not recognize Clemons was not believable and that Houston attempted to sandbag the trial court by waiting until after the verdict was announced to raise this claim for the first time. See Houston, 467 S.W.3d at 900-01. Moreover, we found that Houston failed to meet his burden of proving juror misconduct by failing to produce any evidence in support of his claim to the court's attention. See id.

         Now, in his Rule 29.15 motion, Houston claims that his trial counsel was ineffective for failing to call himself, Lane, and Clemons to testify at the hearing on his motion for new trial. The motion court granted Houston an evidentiary hearing, and at the hearing, Houston presented the deposition testimony of his trial attorney, himself, Lane, and Clemons.

         Houston's trial attorney testified that he had no independent recollection of the vow* dire proceedings from Houston's trial but his notes indicated that Clemons stated that she could be fair. Trial counsel testified that if Clemons had indicated that she knew Houston, it would have been reflected in his notes and it was not, and further that he did not recall Houston ever telling him during voir dire or trial that he knew Clemons. He testified that he first became aware that Clemons and Houston knew each other during a jail visit with Houston on March 6, 2014, which was after the trial and the filing of the motion for new trial, but before sentencing.

         Houston testified that he knew Clemons from a past relationship in 1998 or 1999 when he was eighteen years old, but that he did not recognize her during his trial because she had gained weight. He testified he learned from his cousin Lane that demons had contacted Lane telling him that she had served on Houston's jury.

         Lane testified Clemons was his ex-girlfriend and that he introduced Clemons to Houston about fifteen years ago. Lane testified that after the trial Clemons called his cousin ...


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