Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable William E.
WILLIAM W. FRANCIS, JR., J.
Schwertz ("Schwertz"), appeals the judgment of the
motion court denying his Rule 29.15 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
and Procedural History
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.
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
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.
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."
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.
Court affirmed Schwertz's convictions and sentences on
direct appeal in a written statement. State v.
Schwertz, SD32902. Mandate issued on December 24, 2014.
timely filed his pro se Rule 29.15 motion on March
17, 2015. 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.
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.
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
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 ...