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Cannady v. State

Court of Appeals of Missouri, Southern District, Second Division

April 26, 2018

JILLIAN M. CANNADY, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E. Mountjoy, Circuit Judge.

          WILLIAM W. FRANCIS, JR., J.

         AFFIRMED

         Jillian M. Cannady ("Cannady") appeals from the judgment of the motion court, following an evidentiary hearing, denying her amended Rule 29.15[1] motion to set aside her conviction for first-degree assault. In two points on appeal, Cannady argues that the motion court clearly erred in denying her post-conviction motion, contending that trial counsel was ineffective for failing to consistently object to hearsay testimony, and that Cannady was prejudiced thereby. Because the motion court's denial of Cannady's Rule 29.15 motion was not clearly erroneous, we affirm.

         Facts and Procedural Background

         The "facts, " for purposes of our review, are derived from the evidence (and reasonable inferences therefrom), when viewed 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).

         Victim had been romantically involved with Lance Hill ("Hill") for eight years, and he was the father of her two children. The couple broke up in July 2009, and Hill moved in with his mother. Cannady also had two children by Hill, and was staying at the home of Hill's mother during the 2009 Christmas season. Hill's half-brother, Michael Harris ("Harris), also resided at the household.

         On January 9, 2010, at approximately 2:30 a.m., Victim asked a neighbor to take her to where Hill was living. Upon arrival, Victim went directly upstairs to Hill's room, woke him up, and asked him if he wanted to go back to her house and talk about getting back together. Hill agreed to go with Victim.

         As Hill and Victim were leaving the house, they encountered Cannady in the kitchen. Hill and Cannady yelled at each other, then Hill and Victim went outside to the car. Once they were at the car, Hill decided to stay the night with Victim, and they went back in the house to retrieve Hill's clothes. Harris woke up and Victim and Hill ended up having a beer and talking to Harris for almost two hours. After approximately 45 minutes, they began smelling grease from the kitchen.

         At approximately 5:00 a.m., Victim and Hill decided to leave. Victim began walking down the stairs. As Victim reached the bottom third or fourth stair, Cannady threw a pot of hot grease in Victim's face. Victim started screaming and fell down the rest of the stairs. Cannady then began to beat Victim in the back of the head with the pot while calling her a "stupid bitch."

         While police were being called, Cannady ran out the back door. Responding officers found Cannady hiding underneath mattresses in a detached garage behind the house, where she was arrested.

         Victim was treated for burns to her face, neck, left ear, chest, back, left arm, and the lower left side of her stomach. Victim later underwent surgery on her left arm requiring skin grafts.

         Cannady was charged by amended information with the class A felony of assault in the first degree.

         A jury trial commenced on September 26, 2011. Victim testified during the State's case in chief. In her testimony, Victim identified Cannady as the person who threw the hot grease on her. She indicated that she personally knew Cannady, and Cannady and her children had lived with Victim in 2006 and 2008. Victim stated she and Cannady did not have a good relationship, but "tried to get along." She testified she did not see Cannady actually throw the grease in her face as it was dark at the bottom of the stairs. Victim said that after she was hit with the grease, she fell down the remaining stairs and Cannady started beating her in the back of her head with a pot saying, "You stupid bitch." She indicated that she recognized Cannady's voice. Victim's testimony was that Hill then came down the stairs and said, "Jill, what the fuck did you do?" Hill grabbed Cannady off Victim and when Victim stood up, she saw Cannady.

         Harris testified that a short time after Hill and Victim left his bedroom, he heard Victim yell "That B burnt me." Harris saw Cannady coming up the stairs with splatter marks on her shirt. Cannady told him, "I go that B, I got that B."

         Officer Chad McIntrye ("McIntrye"), with the Springfield Police Department, testified he was a major crimes investigator. He responded to a call at 5:20 a.m. at Hill's residence. He met

         Hill coming out the door. Officer McIntrye testified that as he approached the house, he smelled an odor like burnt grease. The following colloquy then took place:

[STATE:] Once you approached the house, what did you do?
[MCINTRYE:] Mr. Hill was coming outside. I asked him a few questions, if he lived there. He said he did. He said the mother of his child was burned. I asked where it happened at. He said inside.
[DEFENSE:] Objection. Hearsay.
[STATE:] I would just use this for subsequent conduct, for getting a consent to search and going into the house.
[COURT:] Okay. Have you finished that line of questioning, then, at this point?
[STATE:] I just need to ask a few follow-up questions about how he ended up in the house.
[COURT:] None of it's for the truth of it; is that what you're telling me?
[STATE:] Right.
[COURT:] Objection's overruled.
[STATE:] So you spoke with Mr. Hill about the reason you were dispatched there?
[MCINTRYE:] Yes.
[STATE:] And after he gave you some information, did he subsequently give you consent to search that house?
[MCINTRYE:] Yes.
[STATE:] And did he do so by a signed form or just verbally?
[MCINTRYE:] Both.
[STATE:] Okay. What happened when you went into that house?
[MCINTRYE:] The smell of the grease was stronger, and I just basically did a walk-through. Mr. Hill took me -- he told me what had happened. He took me to a stairway and said this is where it happened at, then he took me to a couple other places inside the house.
. . . .
[STATE:] Okay. How did you conduct your investigation, then, as you proceeded through this house?
[MCINTRYE:] At first I just did a walk-through with Mr. Hill, and then I went and got my camera and I just started taking pictures of the interior of the house and the evidence that I found, or thought was evidence.
[STATE:] Okay. What were you looking for as far as items of evidence? You had heard that this was a burn case. Were you looking for specific items that you would believe would be associated with that case?
[MCINTRYE:] Mr. Hill had said that somebody threw grease on her; so, obviously, I was looking for an area that had a large amount of grease or any grease at all, clothes, a container ...

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