FROM THE CIRCUIT COURT OF BOONE COUNTY The Honorable Kevin
PATRICIA BRECKENRIDGE, CHIEF JUSTICE.
Tisius appeals the judgment overruling his Rule 29.15 motion
for post-conviction relief from his sentences of death for
two counts of murder in the first degree. On appeal, Mr.
Tisius asserts that the motion court clearly erred in
overruling his claims that he received ineffective assistance
of trial counsel during the retrial of his penalty phase and
ineffective assistance of appellate counsel on direct appeal.
This Court affirms the motion court's judgment.
and Procedural Background
2000, Mr. Tisius was charged with two counts of murder in the
first degree, section 565.020. The charges arose after Mr. Tisius shot
and killed two deputies, Leon Egley and Jason Acton, at the
Randolph County jail. Mr. Tisius shot the deputies in an
attempt to help his former cellmate, Roy Vance, escape from
the jail. A jury convicted Mr. Tisius of both counts and
sentenced him to death. His convictions were affirmed on
direct appeal. State v. Tisius, 92 S.W.3d 751 (Mo.
motion court subsequently granted Mr. Tisius post-conviction
relief, and the case was remanded for a new penalty phase.
Tisius v. State, 183 S.W.3d 207 (Mo. banc 2006).
Prior to the new penalty phase, the public defender's
office entered into an arrangement with attorneys Chris
Slusher and Scott McBride to represent Mr. Tisius for a flat
fee of $10, 000 each.
2010, the retrial of Mr. Tisius' penalty phase began. The
state introduced several pieces of aggravation evidence
regarding Mr. Tisius' conduct while awaiting trial. This
evidence included testimony from a Chariton County deputy
that, on July 2, 2000, Mr. Tisius made hand gestures at her
mimicking the shooting of a gun. The state also introduced
testimony from a Boone County jail guard that, in April 2001,
Mr. Tisius asked her if she knew who he was. When the jail
guard stated she did not, Mr. Tisius stated he was the one
who killed the two jail guards in Randolph County. The state
further introduced evidence that, in 2006, a boot shank was
found hidden in a radio in Mr. Tisius' cell. Mr. Tisius
subsequently entered an Alford plea to possession of a prohibited article
in the department of corrections, section 217.360.1(4).
the state's evidence, several character witnesses
testified on behalf of Mr. Tisius, including his mother,
Patricia Lambert, and his brother, Joseph Mertens. Their
testimony reflected that Mr. Tisius had little interaction
with his father as a child. Ms. Lambert further testified
that Mr. Tisius had attempted or threatened to attempt
suicide several times and that she could not prevent Mr.
Mertens from beating up Mr. Tisius on a regular basis. Mr.
Mertens testified he would severely beat Mr. Tisius, who was
smaller than him and would not fight back.
Dr. Shirley Taylor also testified on Mr. Tisius' behalf.
Dr. Taylor evaluated Mr. Tisius on two separate occasions and
opined that he suffered from depression, anxiety, and
post-traumatic stress disorder. She further testified that
Mr. Tisius was neglected as a child and described Mr.
Tisius' relationship with his father as one of sporadic
involvement and broken promises. Dr. Taylor also opined that
the shootings were contrary to Mr. Tisius' passive,
non-aggressive nature and that Mr. Tisius was remorseful for
his actions. On cross-examination, Dr. Taylor was asked about
the incidents in the Boone and Chariton county jails. Dr.
Taylor stated she was unaware of the incidents and could not
comment about them without more context.
counsel chose to present Dr. Taylor's live testimony at
the retrial of the penalty phase over two psychiatrists, Dr.
Stephen Peterson and Dr. A.E. Daniels, who had previously
testified on Mr. Tisius' behalf. Instead, trial counsel
entered into a stipulation with the state as to the portions
of Dr. Peterson's and Dr. Daniel's prior testimony
that could be read into evidence at the retrial.
close of evidence, the state submitted three statutory
aggravating circumstances with respect to each murder count:
(1) that the murder was committed while Mr. Tisius was
engaged in the commission of another unlawful homicide; (2)
that the murder involved depravity of the mind; and (3) that
the murder was committed against a peace officer engaged in
official duties. Trial counsel objected on double jeopardy
grounds to the third aggravating circumstance being submitted
with respect to the murder of Mr. Acton because the jury from
the original penalty phase did not find that circumstance.
Trial counsel's objection was overruled. The jury found
all three aggravating circumstances with respect to the
murder of Mr. Egley and only the first and the third
aggravating circumstances with respect to the murder of Mr.
Acton. The jury found no mitigating circumstances and
recommended Mr. Tisius be sentenced to death on each count.
The trial court sentenced Mr. Tisius in accordance with the
jury's recommendation. Mr. Tisius' death sentences
were affirmed on direct appeal. State v. Tisius, 362
S.W.3d 398 (Mo. banc 2012).
Tisius subsequently filed his Rule 29.15 motion for
post-conviction relief. In his amended motion, Mr. Tisius
alleged multiple claims of ineffective assistance of trial
and appellate counsel. Following an evidentiary hearing, the
motion court overruled Mr. Tisius' motion for
post-conviction relief. Mr. Tisius appeals. Because this case
involves the imposition of the death penalty, this Court has
exclusive jurisdiction over the appeal. Mo. Const. art. V,
Court's review of the overruling of a motion for
post-conviction relief is limited to a determination of
whether the motion court's findings of fact and
conclusions of law are clearly erroneous. Rule 29.15(k). A
motion court's findings and conclusions are clearly
erroneous "if, after reviewing the entire record, this
Court is left with the definite and firm impression that a
mistake has been made." Barton v. State, 486
S.W.3d 332, 336 (Mo. banc 2016) (internal quotation omitted).
movant is entitled to post-conviction relief for ineffective
assistance of counsel upon establishing: (1) trial counsel
"failed to exercise the level of skill and diligence
that a reasonably competent counsel would in a similar
situation, and (2) he or she was prejudiced by that
failure." McIntosh v. State, 413 S.W.3d 320,
324 (Mo. banc 2013) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Both prongs of
the Strickland test "must be shown by a
preponderance of the evidence in order to prove ineffective
assistance of counsel." Strong v. State, 263
S.W.3d 636, 642 (Mo. banc 2008).
satisfy the Strickland performance prong, a movant
"must overcome the strong presumption that counsel's
conduct was reasonable and effective." Hoeber v.
State, 488 S.W.3d 648, 655 (Mo. banc 2016) (internal
quotation omitted). This presumption is overcome if the
movant identifies "specific acts or omissions of counsel
that, in light of all the circumstances, fell outside the
wide range of professional competent assistance."
McIntosh, 413 S.W.3d at 324 (internal quotation
establish Strickland prejudice, a movant must prove
that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different." Id.
(internal quotation omitted). "A reasonable probability
exists when there is a probability sufficient to undermine
confidence in the outcome." McLaughlin v.
State, 378 S.W.3d 328, 337 (Mo. banc 2012) (internal
quotation omitted). "Regarding a sentence to death, a
defendant must show with reasonable probability that the
jury, balancing all the circumstances, would not have awarded
the death penalty." Strong, 263 S.W.3d at 642.
to Rebut the Boot Shank Aggravation Evidence
first point, Mr. Tisius asserts the motion court erred in
overruling his motion for post-conviction relief because
trial counsel were ineffective for failing to rebut the
state's aggravation evidence regarding his conviction for
possessing a boot shank. In 2006, while awaiting the retrial
of his penalty phase, a boot shank was found hidden in a
radio in Mr. Tisius' cell. Mr. Tisius subsequently
entered an Alford plea to one count of possession of
a prohibited article in the department of corrections. At the
plea hearing, Mr. Tisius acknowledged he knew the boot shank
was in his cell but claimed another inmate had put it in the
radio and threatened Mr. Tisius that he better leave it
there. The trial court accepted Mr. Tisius'
Alford plea and sentenced him to a concurrent
five-year term of imprisonment.
the retrial of Mr. Tisius' penalty phase, the state
referenced his Alford plea to possession of the boot
shank in opening and closing argument. The state also read
into evidence the docket entry regarding Mr. Tisius'
Alford plea and a portion of the complaint charging
Mr. Tisius with possession of the boot shank. The state did
not read the portion of the complaint stating the boot shank
was an instrument that may be used in such manner as to
endanger the safety or security of the correctional center.
motion for post-conviction relief, Mr. Tisius alleged trial
counsel were ineffective for failing to further investigate
and rebut the aggravation evidence. Mr. Tisius alleged that
further investigation would have led to the discovery that
the boot shank was not sharpened and that he possessed the
boot shank because another inmate put it in his cell. Mr.
Tisius also alleged reasonable trial counsel would have
explained to the jury what an Alford plea is and
read the plea hearing transcript so the jury could hear the
real reason he possessed the boot shank.
motion court concluded trial counsel were not ineffective
because additional evidence regarding the boot shank would
have been a double-edged sword. The motion court reasoned
that reading the plea transcript would have put Mr.
Tisius' version of events before the jury, but it also
would have presented information favorable to the state. The
motion court further reasoned it was not unreasonable for
trial counsel to avoid giving additional details about the
offense because it could have led to the jury placing more
significance on the conviction. The motion court also
concluded that some of the rebuttal evidence would have been
witnesses may testify only "to those matters of which
the witness has personal first-hand knowledge."
State v. Taylor, 466 S.W.3d 521, 529 (Mo. banc
2015). The rebuttal witnesses Mr. Tisius offered had no
personal knowledge regarding the placement of the boot shank
in his cell. Timothy O'Hara, an inmate, testified it was
his understanding that Charles Hurt, another inmate, had put
the boot shank in Mr. Tisius' radio. Mr. O'Hara also
testified that Mr. Hurt was in prison with Mr. Tisius at the
time the boot shank was found and that Mr. Hurt had a
reputation for killing a former cellmate and setting people
up in prison. Mr. O'Hara admitted to having no personal
knowledge about the boot shank in Mr. Tisius' cell.
Mitigation specialist Tami Miller testified that Mr. Tisius
told her another inmate threatened him if he did not hide the
boot shank for him. Mr. Slusher testified that Mr. Tisius
wrote a letter to the department of corrections stating the
boot shank was in his radio because Mr. Hurt put it there and
threatened Mr. Tisius to keep it.
follows that the rebuttal testimony offered was not based on
the witnesses' own personal knowledge but, instead, on
statements made following the incident. Out-of-court
statements offered for the truth of the matter asserted
constitute hearsay and are inadmissible unless they fall
under a recognized exception. Id. at 530. Trial
counsel will not be found ineffective for failing to present
inadmissible evidence. McLaughlin, 378 S.W.3d at
346. Because the rebuttal testimony was based on out-of-court
statements, it constitutes hearsay and would have been
inadmissible at trial. Trial counsel,
therefore, cannot be deemed ineffective for failing to
present such evidence.
remaining rebuttal evidence that Mr. Tisius alleges trial
counsel should have presented consists of the plea transcript
and photographs of the boot shank. Mr. Tisius asserts he was
prejudiced by trial counsel's failure to rebut the
state's evidence with the plea transcript and the boot
shank photographs because the jury was left with the
impression that he was a risk to correctional staff and other
the plea transcript would have presented Mr. Tisius'
version of why he possessed the boot shank, it also would
have revealed information favorable to the state. The factual
basis for the plea described the boot shank as "a long,
narrow piece of metal that is sharpened at one
end" and as a type of weapon that
obviously "could be used to endanger the security or
safety of another inmate or staff at the correctional
center." Although Mr. Tisius was charged pursuant to
section 217.360.1(4), which requires evidence that the
article possessed could endanger the safety or security of
the correctional center, that portion of the charge had not
been read to the jury. Accordingly, reading the plea
transcript to the jury would have emphasized the dangerous
nature of the offense to the jury.
although the photographs show the boot shank had not been
modified or sharpened, they, nevertheless, depict a long
piece of rough-looking metal with sharp corners. Mr. Tisius
can only speculate as to how the jury would have perceived
the boot shank photographs. It follows that the plea
transcript and the photographs would not have rebutted the
impression that Mr. Tisius was a risk to correctional staff
or other inmates sufficient to create a reasonable
probability that the jury would not have imposed the death
penalty had such evidence been presented. Accordingly, the
motion court did not clearly err in concluding that trial
counsel were not ineffective for failing to further
investigate or rebut the boot shank evidence.
to Rebut the Testimony Regarding the Boone County Jail
second point, Mr. Tisius asserts trial counsel were
ineffective for failing to rebut aggravation evidence that he
bragged to a Boone County jail guard about killing Mr. Egley
and Mr. Acton. During the retrial of the penalty phase,
Jacqueline Petri, who worked at the Boone County jail,
testified that, in April 2001, she was clearing the
inmates' food trays when Mr. Tisius began speaking with
her about transferring to another facility. She informed Mr.
Tisius that he would need to fill out a form and that she
would pass it along. She testified that Mr. Tisius then asked
her, "Don't you know who I am?" When she told
him she did not, he told her he was the one who killed the
two jailers in Randolph County. On cross-examination, Ms.
Petri agreed that Mr. Tisius was anxious to be moved and
that, following Mr. Tisius' comment, things were
"business as usual." In closing arguments, the
state argued Mr. Tisius was a future danger to correctional
staff and other inmates as evidenced by his bragging about
the murders to Ms. Petri.
motion for post-conviction relief, Mr. Tisius alleged
reasonable trial counsel would have rebutted such evidence
with testimony from Dr. Peterson that Mr. Tisius'
statements to Ms. Petri were nothing more than
adolescent-type behavior and had no bearing on the future
danger he posed to correctional staff. At the evidentiary
hearing, Dr. Peterson testified that Mr. Tisius'
statements to Ms. Petri were open to interpretation. He
stated one could say maybe Mr. Tisius was bragging, but one
could also say maybe he was frightened and trying to tell Ms.
Petri why it was important for him to be transferred. The
motion court concluded there was no reasonable probability
that any additional evidence ...