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Jones v. State

Court of Appeals of Missouri, Eastern District, Third Division

March 21, 2017

SHARNIQUE JONES, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of St. Louis County Honorable Colleen Dolan

          OPINION

          Angela T. Quigless, P.J.

         Sharnique Jones ("Movant") appeals from a judgment denying her Rule 29.15[1] 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.

         Factual and Procedural History

         Movant 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.

         Movant 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.

         Detective 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.

         The 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.

         Following a jury trial, Movant was found guilty of second-degree murder, the lesser included offense of second-degree assault, [2] 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.

         Thereafter, 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. banc 2014).

         Movant timely filed pro se and amended motions for post-conviction relief per Rule 29.15.[3]Movant alleged, inter alia, that trial counsels[4] 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.

         Points Relied On

         Movant 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.

         Standard of Review and Applicable Law

         Appellate 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.

         An 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 29.15(h).

         To be 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 different. Id.

         Discussion

         Point I-Failure to Investigate Effects of Phenobarbital

         In 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.

         Under 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).

         Here, 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 ...


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