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Tisius v. State

Supreme Court of Missouri, En Banc

April 25, 2017

MICHAEL TISIUS, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY The Honorable Kevin Crane, Judge

          PATRICIA BRECKENRIDGE, CHIEF JUSTICE.

         Michael 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.

         Factual and Procedural Background

         In 2000, Mr. Tisius was charged with two counts of murder in the first degree, section 565.020.[1] 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. banc 2002).

         The 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.

         In 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[2] plea to possession of a prohibited article in the department of corrections, section 217.360.1(4).

         Following 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.

         Psychologist 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.

         Trial 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.

         At the 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).

         Mr. 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, sec. 3.

         Standard of Review

         This 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).

         A 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).

         To 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 omitted).

         To 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.

         Failure to Rebut the Boot Shank Aggravation Evidence

         In his 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.

         During 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.

         In his 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.

         The 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 inadmissible hearsay.

         Typically, 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.

         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.[3] Trial counsel, therefore, cannot be deemed ineffective for failing to present such evidence.

         The 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 inmates.

         While 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"[4] 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.

         Moreover, 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.[5]

         Failure to Rebut the Testimony Regarding the Boone County Jail Incident

         In his 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.

         In his 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 ...


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