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Jackson v. State

Court of Appeals of Missouri, Eastern District, Third Division

December 12, 2017


         Appeal from the Circuit Court of St. Louis County 14SL-CC04340 Honorable Thea A. Sherry



         Michael Ray Jackson (Movant) appeals from the motion court's judgment denying his Rule 29.15[1] motion for post-conviction relief after an evidentiary hearing. We affirm.


         After a trial, a jury convicted Movant of two counts of statutory sodomy in the first degree. The trial court sentenced Movant to concurrent terms of fifteen years in the Missouri Department of Corrections on one count and ten years on the other. This Court affirmed the convictions and sentences on appeal in State v. Jackson, 439 S.W.3d 276 (Mo. App.E.D.2014).

         Movant timely filed a pro se Rule 29.15 motion. Through appointed counsel, Movant filed a timely amended motion, which asserted, as relevant to the issues raised on appeal, trial counsel was ineffective for failing to impeach Victim with a birthday card she had sent Movant after the molestation had begun that suggested they had a good relationship, for failing to move for a mistrial after witnessing a juror sleeping during trial, and for failing to adequately advise Movant of the risks of proceeding to trial. The motion court granted an evidentiary hearing at which Movant and his trial attorneys, Anthony Muhienkamp (Muhlenkamp) and Matthew Radefeld (Radefeld), testified.

         Muhlenkamp testified to the following. His trial strategy had been to stress the inconsistencies in Victim's statements and behaviors to show she was fabricating the allegations against Movant. Muhlenkamp discussed the strength of the case with Movant, stating that they had a good defense with Victim's inconsistencies. Muhlenkamp warned Movant, however, the best defense in a sex-offense case is a motive for the victim to fabricate the allegations, of which there was none here. Muhlenkamp advised Movant that going to trial is high reward but high risk, with mandatory jail time if they lost.

         Regarding plea negotiations, Muhlenkamp testified Movant was concerned about having to register as a sex offender if he pleaded guilty, and once the State made it clear it would not offer a plea deal to a non-registerable offense, Movant "dug in his heels" and insisted on going to trial. On the morning of trial, the State offered a plea deal to a reduction of the charges to one count of child molestation with probation, but Movant denied it after about 20-30 minutes of discussion with counsel because of the requirement that he register as a sex offender. Muhlenkamp stated he discussed with Movant the potential penalty if he was convicted, and Movant "seemed to understand" and wanted, instead, to proceed to trial because of the registration requirement.

         As for Movant's claim of a sleeping juror, Muhlenkamp remembered Radefeld informing him that Movant had seen a juror sleeping. Although Muhlenkamp and Radefeld both watched the juror, Muhlenkamp did not see the juror sleeping. Because he did not see it, he decided not to make a record of it.

         Last, Muhlenkamp agreed Movant had provided him with a birthday card Victim had given Movant to use for impeachment purposes. The card had a hand-drawn heart on it and included the signature: "Love your nieces, [A] & [Victim]." Muhlenkamp testified that he planned to cross-examine Victim about the birthday card because it fit with their trial strategy of pointing out that her behavior towards Movant was inconsistent with a victim of sexual abuse, but at trial Muhlenkamp forgot. He cross-examined Victim on other inconsistencies that were similar in theme but more persuasive, including that she had requested to move in with Movant and his wife around the same time as the alleged molestation. Muhlenkamp testified he did not believe that if he had cross-examined Victim on the birthday card it would have made a difference, stating: "if [the jury wasn't] buying our defense with all the other stuff that we'd already told them, I don't think a birthday card would have put them over the top. ... Unfortunately, I just -- they weren't believing our defense." Moreover, Muhlenkamp agreed Victim testified on the stand that she did love Movant, who was her uncle, and thus the birthday card in which she signed "love, your nieces" would have been cumulative to evidence already admitted.

         Radefeld testified to the following. He and Muhlenkamp had many discussions with Movant about trial strategy, whether or not to go to trial, and the statutory range of punishment. His practice is to warn clients that every time they go before a jury there is only about a 50/50 chance of acquittal. Radefeld did not recall seeing a juror who was sleeping. Radefeld stated that compared to other much stronger evidence of Victim's inconsistencies, he did not believe the birthday card to be strongly discrediting to Victim's testimony. Moreover, in his experience with sex-offense cases, the victim will frequently continue to show affection towards the perpetrator while the abuse is ongoing.

         Movant testified he told Radefeld about the sleeping juror and that together they watched the juror sleep for about ten minutes, but Radefeld stated he did not want to tell the judge because he did not want the judge to declare a mistrial. Movant agreed he did not want to register as a sex offender, but he testified Muhlenkamp and Radefeld misled him about the strength of his case, saying it was a good case with a 50/50 chance of acquittal. Movant believed that cross-examining ...

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