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Schwertz v. State

Court of Appeals of Missouri, Southern District, Second Division

November 15, 2017

BRENT SCHWERTZ, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable William E. Hickle, Judge

          OPINION

          WILLIAM W. FRANCIS, JR., J.

         Brent Schwertz ("Schwertz"), appeals the judgment of the motion court denying his Rule 29.15[1] motion to set aside his convictions for first-degree murder and armed criminal action. In one point, Schwertz asserts the motion court clearly erred in denying his Rule 29.15 motion because trial counsel was ineffective for failing to investigate, research, present evidence and argue that the gun involved in the murder was a model known to be defective and to accidentally discharge. Because the motion court's decision to deny the post-conviction motion was not clearly erroneous, we affirm.

         Facts and Procedural History

         In reciting the facts of this matter, we view the evidence in the light most favorable to the motion court's judgment. Day v. State, 495 S.W.3d 773, 774 (Mo.App. S.D. 2016).

         Schwertz's trial theory was that he shot Victim accidentally, after they had been arguing about an engagement ring Victim refused to return to Schwertz when she broke off the engagement. When Victim refused to give back the ring, Schwertz became "aggravated." Schwertz then made "the worst decision I've ever made in my entire life[, ]" and retrieved a silver Bryco Jennings Model 9 semi-automatic pistol in order to scare Victim into giving back the ring. When Victim still refused to return the ring, Schwertz loaded a round into the chamber. Victim then told him to put the gun down, they would talk, and she would give him the ring. Schwertz put the gun down on a countertop, but when Victim lunged for the gun, he "grabbed the gun" and "the gun went off." Schwertz admitted his finger was on the trigger, but denied it was his intention to shoot Victim, and that it was an accident. Schwertz then called his father, telling him he had shot Victim, and asking him to call 911. Schwertz also told law enforcement that he had shot Victim.

         Schwertz stated that after Victim was shot, the gun jammed. He tilted the gun sideways, shook the slide, and two cartridges fell out. He did it again, and two more cartridges fell out.

         The defense called Kathleen Green ("Green"), a 23-year firearms examiner for the Missouri State Highway Patrol Crime Lab, who testified that she examined Schwertz's gun and it "malfunctioned" in that "it did not chamber the cartridges consistently like it should[, ]" and did not "eject the expended cartridge cases like it consistently should after each shot."

         The jury found Schwertz guilty of first-degree murder and armed criminal action, and the trial court sentenced Schwertz to concurrent terms of life imprisonment without the possibility of parole, and forty years' imprisonment, respectively.

         This Court affirmed Schwertz's convictions and sentences on direct appeal in a written statement. State v. Schwertz, SD32902. Mandate issued on December 24, 2014.

         Schwertz timely filed his pro se Rule 29.15 motion on March 17, 2015.[1] On July 7, 2015, post-conviction counsel timely filed an amended motion. The amended motion alleged that trial counsel was ineffective for failing to "investigate, research, present evidence and argue that the weapon involved in this case is known to be defective in numerous ways including discharging without having the trigger pulled." Schwertz asserted that "[e]vidence demonstrating numerous examples of accidental discharges of this make and model of weapon would have supported [Schwertz]'s theory of accident in this case and there is a reasonable probability that the outcome of the trial would have been different." In support, Schwertz cited two articles published in The Association of Firearm and Tool Mark Examiners Journal ("AFTE Journal"), which he asserted showed that the model of Schwertz's gun was "prone to accidental discharge under various conditions." Schwertz also asserted that the manufacturer of the gun was forced into bankruptcy following a product liability suit. Schwertz concluded that such evidence could have been presented through Green, the firearms examiner who testified at trial.

         On January 28, 2016, the motion court held an evidentiary hearing on the amended motion, at which Green, trial counsel, Schwertz's parents, and Schwertz testified.

         Green testified she test-fired Schwertz's gun three times. The gun never fired without a trigger pull during the two years it was in the evidence locker at the Missouri Highway Patrol Crime Lab. Her analysis determined that the trigger pull of Schwertz's gun was eight and a half to nine pounds, which was normal for that gun and not considered a "hair trigger." A "hair trigger" usually indicated a trigger pull of a pound or less. Green found no reason to conduct accidental discharge testing on the gun. Green had examined the same make and model of Schwertz's gun many times before, and denied ever seeing one fire without its trigger being pulled. Green denied that the make and model of Schwertz's gun was known to discharge without having its trigger pulled.

         Green also testified she was a member of The Association of Firearm and Toolmark Examiners, and had received copies of the AFTE Journal since beginning her employment at the crime lab. Green stated the AFTE Journal was "the journal for experts in my field[, ]" and that experts in her field reasonably relied on the journal. Green testified that the first article cited by Schwertz, published in the summer 1999, concerned a different model than Schwertz's gun. While that article described a failure of the gun's magazine safety, the gun at issue still required a trigger pull in order to fire. The second article relied on by Schwertz, published in the spring 2001, was in regard to the same make and model as Schwertz's gun, but that article described a worn or damaged sear in two guns that caused them to function as fully automatic weapons upon a trigger pull. This defect was specific to these two particular guns, rather than a problem widely associated with the model, and that damage to the sear is often the result of having been filed down or other purposeful damage caused by the owner. Schwertz's gun was not similarly ...


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