Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County Honorable Colleen
T. Quigless, P.J.
Jones ("Movant") appeals from a judgment denying
her Rule 29.15 post-conviction
relief motion. The motion court held an evidentiary hearing
on two of her five claims. Movant contends the motion court
clearly erred in denying her motion because trial counsels
were ineffective for (1) failing to investigate and elicit
information from medical witnesses at trial that her
daughter, S.J., was on phenobarbital when she stopped
breathing; (2) failing to submit a lesser-included offense
instruction of third-degree assault, as a lesser-included
offense for first-degree assault; (3) failing to preserve the
issue of corpus delicti for the second-degree murder
charge; (4) failing to submit a lesser-included offense
instruction of second-degree endangering the welfare of a
child, as a lesser-included offense for second-degree murder;
and (5) failing to request the removal of a sleeping juror.
We affirm the motion court's judgment.
and Procedural History
gave birth to her daughter, S.J., on January 3, 2008. Between
January 3 and April 7, 2008, Movant took S.J. to the hospital
thirteen times for various health concerns. Medical staff
described S.J. as healthy and counseled Movant regarding
proper feeding, safe sleeping positions, and community
resources for new mothers. On April 7, 2008, Movant placed
S.J. facedown on a pillow because S.J. would not stop crying.
Movant then left the room, intending to commit suicide;
however, Movant changed her mind. When Movant returned to the
bedroom fifteen to twenty minutes later, S.J. was still
facedown on the pillow and was not breathing. Movant called
911, but first responders were unable to resuscitate S.J.
gave birth to her son, D.W., on January 18, 2009. Movant took
D.W. to the hospital two days later because he was jaundiced.
The hospital admitted D.W. for malnutrition and marginal
dehydration, and began a feeding program. However, Movant
became upset with the feeding program, accused hospital staff
of force-feeding D.W., and checked him out of the hospital
against medical advice. Three days later, Movant took D.W.
back to the hospital, stating that he had stopped breathing.
Movant later admitted she had been watching television with
D.W. facedown in her lap and had stopped paying attention to
him. Movant admitted that when she returned her attention to
D.W., his face was pressed into a burp rag, and he was not
breathing. The hospital contacted the Children's
Division, which placed D.W. in protective custody.
Harolton Clayborn ("Detective Clayborn") of the St.
Louis County Police Department contacted Movant, who agreed
to come to police headquarters to answer questions about D.W.
Movant was taken to an interview room where she signed a
Miranda rights warning and waiver form. Movant told
Detective Clayborn that she missed several of D.W.'s
feedings, and that she felt the hospital had attempted to
force-feed D.W. Movant also admitted to the burping incident
when D.W. stopped breathing. Movant then discussed S.J.'s
death. After, Detective Clayborn expressed doubt about the
cause of S.J.'s death, Movant admitted that she had
become frustrated with S.J.'s crying and had placed her
facedown on a pillow. Movant stated she left S.J. unattended
and later discovered S.J. had stopped breathing.
State charged Movant with second-degree murder of S.J. by
suffocation, first-degree assault by knowingly causing
serious physical injury to D.W., and first-degree endangering
the welfare of a child by creating a substantial risk to the
life and health of D.W.
a jury trial, Movant was found guilty of second-degree
murder, the lesser included offense of second-degree assault,
 and first-degree endangering the
welfare of a child. The court sentenced Movant to concurrent
sentences of fifteen years for murder, and seven years each
for assault and endangering the welfare of a child.
Movant appealed her conviction. This Court reversed
Movant's second-degree murder conviction, State v.
Jones, No. ED97595, 2012 WL 4497968 (Mo. App. E.D. Oct.
2, 2012), concluding that the trial court plainly erred when
it admitted evidence of Movant's out-of-court statement
without proof of corpus delicti because her
statement was the only evidence at trial indicating that
S.J.'s death was the result of criminal agency.
Id. at *3. On transfer, the Missouri Supreme Court
declined to review for plain error and reinstated the
conviction. State v. Jones, 427 S.W.3d 191, 197 (Mo.
timely filed pro se and amended motions for
post-conviction relief per Rule 29.15.Movant alleged, inter alia, that
trial counsels were ineffective
for (1) failing to request lesser- included offense
instructions for second-degree murder, including
second-degree endangering the welfare of a child; (2) failing
to request lesser-included offense instructions for
first-degree assault, including third-degree assault; (3)
failing to investigate or litigate that S.J. was on
phenobarbital when she stopped breathing; (4) failing to move
to strike a juror for sleeping and dozing off through crucial
testimony; and (5) failing to preserve the issue of the
corpus delicti for the second-degree murder charge.
The motion court granted an evidentiary hearing on
Movant's second and fourth claims but denied Movant's
other claims without a hearing. Following the hearing, the
motion court entered its judgment, denying Movant's
post-conviction motion. This appeal follows.
raises five points on appeal. Movant argues the trial court
erred in denying her claim of ineffective assistance of
counsel for (1) failing to investigate and elicit information
from medical witnesses at trial that S.J. was on
phenobarbital when she stopped breathing; (2) failing to
submit a lesser-included offense instruction of third-degree
assault, as a lesser-included offense for first-degree
assault; (3) failing to preserve the issue of corpus
delicti for the second-degree murder charge; (4) failing
to submit a lesser-included offense instruction of
second-degree endangering the welfare of a child, as a
lesser-included offense for second-degree murder; and (5)
failing to request the removal of a sleeping juror.
of Review and Applicable Law
review of decisions under Rule 29.15 is limited to whether
the motion court's findings of fact and conclusions of
law are clearly erroneous. Rule 29.15(k); Moore v.
State, 328 S.W.3d 700, 702 (Mo. banc 2010). On review,
the motion court's findings are presumed correct.
Vaca v. State, 314 S.W.3d 331, 334 (Mo. banc 2010).
Findings and conclusions are clearly erroneous if we are left
with a "definite and firm impression that a mistake has
been made" after reviewing the entire record.
Moore, 328 S.W.3d at 702.
evidentiary hearing on a Rule 29.15 motion is only required
if: (1) the motion alleges facts, not conclusions, warranting
relief; (2) the facts alleged raise matters not refuted by
the case files and the records; and (3) the matters of which
the movant complains have resulted in prejudice. Ringo v.
State, 120 S.W.3d 743, 745 (Mo. banc 2003). No hearing
is required if the motion and the files and records
conclusively show the movant is not entitled to relief. Rule
entitled to post-conviction relief for ineffective assistance
of counsel, the movant must satisfy a two-prong test. First,
the movant must demonstrate that counsel failed to exercise
the customary skill and diligence of a reasonably competent
attorney under similar circumstances. Worthington v.
State, 166 S.W.3d 566, 572-73 (Mo. banc 2005) (citing
Strickland v. Washington, 466 U.S. 668, 687-88
(1984)). Second, the movant must show that trial
counsel's deficient performance prejudiced him.
Id. To satisfy the first prong, the movant must
overcome a strong presumption that counsel provided competent
representation by pointing to "specific acts or
omissions of counsel that, in light of all the circumstances,
fell outside the wide range of professional competent
assistance." Anderson v. State, 196 S.W.3d 28,
33 (Mo. banc 2006). To satisfy the second prong, the movant
must demonstrate that, absent the claimed errors, there is a
reasonable probability that the outcome would have been
I-Failure to Investigate Effects of Phenobarbital
Point I, Movant argues the trial court erred in denying her
claim that counsels were ineffective for failing to
investigate and elicit information from the medical witnesses
at trial that S.J. was on phenobarbital when she stopped
breathing. Movant argues that the phenobarbital and its side
effects could have been introduced through "any of the
multiple medical experts" at trial who were familiar
with the drug. Had counsels investigated and litigated the
effects of phenobarbital, Movant argues the jury would have
been aware of a reason other than suffocation that S.J.
stopped breathing. We disagree.
the performance prong in Strickland, counsel is
ineffective only if the movant demonstrates that
counsel's representation "fell below an objective
standard of reasonableness." Strickland, 466
U.S. at 687. To prevail on a claim that was counsel was
ineffective for failing to investigate and present mitigating
evidence, the movant must specifically identify who the
witnesses were, what their testimony would have been, whether
or not counsel was informed of their existence, and whether
or not they were available to testify. Morrow v.
State, 21 S.W.3d 819, 823 (Mo. banc 2000).
we find Movant fails to prove that counsels did not exercise
the customary skill and diligence of reasonably competent
attorneys. See Worthington, 166 S.W.3d at 572-73.
First, while Movant states that counsels could have elicited
testimony from "any of the multiple medical
experts" who testified at trial, she does not
specifically identify the witnesses by name as required.
Movant also fails to allege what the expert witness'
testimonies would have been at trial. Movant states only that
counsels could have introduced phenobarbital through
the witnesses and questioned them about the side effects of
the drug. Movant further fails to connect a specific portion
of her "theory" to a particular witness. See
Barnett v. State, 103 S.W.3d 765, 770 (Mo. banc 2003)
(finding counsel was not ineffective for failing to
investigate because the narrative of movant's life
history set forth in his motion was not ...