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Klarr v. State

Court of Appeals of Missouri, Southern District, First Division

October 17, 2017

JAMES CLINTON KLARR, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF WRIGHT COUNTY Honorable R. Craig Carter.

          DON E. BURRELL, J.

         James Clinton Klarr ("Movant") appeals the denial of his amended Rule 29.15 post-conviction relief motion after an evidentiary hearing.[1] Movant's underlying convictions were for statutory rape in the second degree, statutory sodomy in the second degree, and child molestation in the second degree. See sections 566.034, 566.064, and 566.068.[2] In two points relied on, Movant contends the motion court clearly erred in denying Movant's claims that his trial counsel was ineffective for failing to: (1) strike a particular juror for cause based upon voir dire answers suggesting that the juror "would hold it against [Movant] if he did not testify or present a defense"; and (2) "suppress State's Exhibit 1" ("Exhibit 1")-a letter that fell from Movant's pocket while he was under arrest.

         Finding no ineffective assistance of counsel in jury selection, and no prejudice in the admission of Exhibit 1, we affirm.

         Applicable Principles of Review and Governing Law

         A successful ineffective-assistance of-counsel claim requires a movant to "show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was thereby prejudiced." Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). Our review of a defense attorney's performance is "highly deferential[, ]" Strickland 466 U.S. at 689, and "[a reviewing] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. To demonstrate prejudice, a movant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Nunley, 923 S.W.2d 911, 922 (Mo. banc 1996) (quoting Strickland, 466 U.S. at 694).

         "It is fundamental that a criminal defendant is entitled to a jury composed of only those who are free from any bias or prejudice." State v. McKee, 826 S.W.2d 26, 28 (Mo. App. W.D. 1992). In addition, a defendant in a criminal case must be afforded a full panel of qualified jurors before any peremptory challenges are exercised. James v State, 222 S.W.3d 302, 305-06 (Mo. App. W.D. 2007). "A possibility of prejudice is not sufficient to disqualify a juror: 'It must clearly appear from the evidence that the challenged venireperson was in fact prejudiced.'" Pearson v. State, 280 S.W.3d 640, 646 (Mo. App. W.D. 2009) (quoting State v. Walton, 796 S.W.2d 374, 377 (Mo. banc 1990)). "Whether a prospective juror is qualified is to be determined from the context of the entire voir dire examination, not from a single response." Pearson, 280 S.W.3d at 646. If trial counsel "fails to articulate a reasonable strategy for having [an] admittedly biased juror on the panel, counsel has failed to exercise the customary skill and diligence of a reasonably competent attorney." Id. at 645. As to prejudice, when a biased juror serves on the jury, and there was no reasonable strategy to leave the juror on the jury, prejudice may be presumed for purposes of ineffective assistance of counsel. Wadlow v. State, 518 S.W.3d 872, 877 (Mo. App. S.D. 2017).

         We review the denial of a Rule 29.15 motion to determine "whether the motion court's findings of fact and conclusions of law are clearly erroneous." Collis v. State, 334 S.W.3d 459, 463 (Mo. App. S.D. 2011); see also Rule 29.15(k). We presume that the findings and conclusions of the motion court are correct, and "[t]he movant bears the burden of demonstrating clear error." Wallar v. State, 403 S.W.3d 698, 705 (Mo. App. W.D. 2013).

         Analysis

         Because the two points raised in Movant's timely appeal address distinct portions of the trial, we will discuss the facts and procedural history relevant to each point within our analysis of that particular point, and we take them up in reverse order.

         Point 2-No Motion to Suppress Exhibit 1

         We borrow without further attribution from the statement supporting our summary order affirming the judgment in Movant's direct appeal in summarizing the events relevant to Movant's claims.

         In August 2012, Movant moved in with his nephew, nephew's girlfriend ("Mother"), and Mother's children, including a child who was 15 and 16 years old ("Child") during the time period relevant to this case. Mother began noticing interactions between Movant and Child that "seem[ed] off[, ]" and Mother thought that it was inappropriate for a "[sixty]-something-year-old man" to be spending so much time with Child. Mother responded to her concerns by trying to restrict any one-on-one contact between Movant and Child.

         During Movant's criminal trial, Child testified as follows about her relationship with Movant. Around Christmas of 2012, Child performed oral sex on Movant, and on another occasion, he performed oral sex on her. On Christmas day, they unsuccessfully attempted to have intercourse. On January 29, 2013, they succeeded, and they also engaged in oral sex. They had oral sex on two more occasions, the last occurring on Valentine's Day, 2013. Movant spoke with Child about their having a "biblical marriage[, ]" and Child understood that to mean that "God allowed [them] to get married[.]" Child believed that she was "biblically married to [Movant, ]" and she eventually told an acquaintance about their marriage.

         Mother's trial testimony was that when the acquaintance told Mother that Child "had said they [(Movant and Child)] were biblically married[, ]" Mother assumed that they had been sexually active, and she called "the hotline." Child initially told investigators that she had been joking when she claimed to be biblically married to Movant.

         The chief deputy for the Wright County Sheriff's Department, Bobby Willhite ("Officer Willhite"), testified in a pre-trial deposition taken by trial counsel. The deposition was received into evidence during the evidentiary hearing on Movant's post-conviction motion ("the motion hearing"). In his deposition, Officer Willhite recalled that when he first investigated the matter, "there was [sic] allegations that there had been some thoughts of sexual activity between [Movant] and [Child], " and several members of the family, including Child, were interviewed. After those interviews had been completed, Officer Willhite placed Movant under arrest. Officer Willhite was planning on applying for a warrant to search Movant's home, and Officer Willhite was "holding [Movant] pending a search warrant[.]" When Officer Willhite learned that he "didn't have enough to get a search warrant[, ]" he released Movant.

         During Movant's trial, Officer Willhite testified again about Movant's arrest. Officer Willhite took Movant into custody "for holding because [Officer Willhite] was in the investigation." While Movant "was changing out [at the sheriff's office], a letter fell out of [Movant's] pants pocket[.]" Officer Willhite took the letter, and it was received into evidence at Movant's trial as Exhibit 1 over trial counsel's objection that no foundation had been laid that Child was its author.[3]

         Child testified at trial that she wrote Exhibit 1 to Movant; it was addressed "'Hey, Darling'"; the second page was Child "responding back to one of [Movant's] notes"; and the last page included her question to Movant, "'What do you mean, if I deny you, you will deny me? Sorry for the bad spelling.'" Child explained that Movant "had written [her] a letter before, and it had said, 'I deny you. Will you deny me?'" but [Child] didn't understand what it meant ...


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