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Marshall v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

February 13, 2019

JOHN MARSHALL, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of the City of St. Louis, Cause No. 1622-CC00011, Honorable Rex M. Burlison Judge.

          OPINION

          Colleen Dolan, Judge.

         John Marshall ("Movant") appeals the motion court's judgment denying his Rule 29.15 motion for post-conviction relief ("PCR") claiming that his trial counsel rendered ineffective assistance of counsel.[1] Movant raises four points on appeal. Specifically, Movant alleges that the motion court clearly erred in denying his PCR motion after an evidentiary hearing because he proved by a preponderance of the evidence that his trial counsel was ineffective for failing to: object during the prosecutor's cross-examination of Movant's only witness (Point I); object during the prosecutor's opening statement (Point II); present Movant's medical records and evidence of his physical disability (Point III); and impeach Movant's wife ("Victim") with her prior inconsistent testimony (Point IV). Finding that the motion court did not clearly err in denying Movant's Rule 29.15 motion, we affirm the judgment of the motion court.

         I. Factual and Procedural Background

         Movant was charged with kidnapping, domestic assault in the second degree, and tampering with a witness. Trial was held before the Circuit Court of the City of St. Louis on August 4, 2014.

         Trial

         During her opening statement, the prosecutor outlined to the jury what the State's evidence would show to support the charged offenses. Specifically, the prosecutor made statements about Movant's drug use. The prosecutor stated that Movant and Victim's "marriage had been having problems for some time. The two of them off and on used drugs and [Victim] knew that it was time for her to get out." She also mentioned that, on the evening of February 18, 2011, Movant came to Victim's apartment and that:

[A]s the night progressed [Movant] began smoking crack, and as he got higher[, ] he got angry.… Finally, [Movant] grabbed [Victim] by the neck, slammed her into the wall, and began choking her.… [Movant] had been sitting at the kitchen table smoking crack while [Victim] and her daughters were in the living room.

         Trial counsel did not object to the prosecutor's statements.

         Victim testified as a witness for the State and described the events that led up to the charged crimes. Victim testified that she and Movant were married, but their marriage began to deteriorate after Victim became a witness in a case against Movant in October of 2010. Consequently, Victim and her daughters moved to a separate apartment unit in the same apartment building as Movant. On the evening of February 18, 2011, Movant came to Victim's apartment to inquire about a letter he believed Victim was hiding from him. Victim explained that she had no knowledge of the letter and an argument between the parties ensued. As the evening progressed, Movant became angry and began yelling at Victim. In an attempt to stop the argument, Victim raised her voice back at Movant in response and Movant grabbed Victim by her hair, causing her to fall from the couch onto the floor. He then grabbed Victim by the neck, held her up against the patio door, and choked her. At one point, Movant grabbed a pair of pliers and hit Victim on the top of her head. Victim attempted to leave the apartment several times, but Movant would block the door, stating "you're not going nowhere." Victim stopped attempting to escape the apartment due to her fear that Movant would hit her again. Victim could not call for help since Movant had taken her cellphone away and removed the battery. Movant eventually fell asleep and Victim was able to retrieve her cellphone and its battery. In order to avoid waking up Movant, Victim texted her sister to call the police. Victim further testified that when police arrived to her apartment the following morning, Movant ran out the back door.[2]

         During Victim's cross-examination, Victim was questioned about whether she knew if Movant was disabled. Victim stated, "I know he gets a check for disability…. In my opinion I wouldn't say he was disabled.…" On redirect examination, Victim testified that she was not aware of any physical condition that would have prevented Movant from grabbing her and choking her. During recross-examination, trial counsel attacked Victim's credibility. Victim admitted to defrauding the government and the health care agency to which she applied to become Movant's health care aide by accepting payment for nursing services she never provided. Victim also admitted that she had lied under oath at trial.

         Detective Williams of the City of St. Louis police department's Domestic Abuse Response team responded to the call to Victim's apartment. Detective Williams testified that Victim was crying and visibly shaken as she described the events that had taken place. She added that she did not observe any injuries on Victim, but in her experience that was not unusual in instances of domestic assault. She explained that there are several factors that may contribute to the lack of marks on a victim, such as the amount of pressure applied, the use or non-use of fingernails, and the victim's skin tone. Detective Williams also testified that Victim had declined medical attention, but that this was not unusual with victims of domestic assault because of the cost associated with medical care.

         Movant's mother, Bettye Marshall ("Ms. Marshall"), testified in Movant's defense. Ms. Marshall testified that Movant was at her home the evening of February 18th and the following morning; she affirmed that she did not see Movant leave the house during that time frame. During Ms. Marshall's cross-examination, the prosecutor questioned her about whether she had informed the authorities or prosecutor regarding her knowledge of Movant's whereabouts on the dates in question. Ms. Marshall testified that she had told the officers who arrested Movant at her home that Movant had been there on February 18th and 19th. When asked if she talked with a prosecutor about Movant's case, she stated that "[n]o one asked [her] to come" talk with a prosecutor, but she did speak to Movant's public defender. Movant's trial counsel did not object to this line of questioning.

         The jury found Movant guilty of kidnapping and domestic assault in the second degree, but acquitted him on the witness tampering charge. Movant was sentenced to terms of ten years' imprisonment for kidnapping and seven years' imprisonment for second-degree domestic assault; the sentences were to run concurrently with each other. Our Court affirmed the conviction and sentences on direct appeal in State v. Marshall, 476 S.W.3d 307 (Mo. App. E.D. 2015), issuing our mandate on December 18, 2015.

         Post-Conviction Proceedings

         Movant timely filed his pro se Rule 29.15 motion on January 4, 2016. Counsel from the Public Defender's Office entered an appearance on January 25, 2016. Counsel was granted an additional thirty days to file an amended Rule 29.15 motion. On March 17, 2016, Movant's post-conviction counsel timely filed an amended motion and a request for an evidentiary hearing. The amended motion alleged that trial counsel was ineffective for failing to: (1) object and request a mistrial when the State asked Ms. Marshall on cross-examination about why she did not call the police or volunteer exculpatory evidence to the prosecutor's office; (2) object to the prosecutor's references to uncharged crimes during opening statement; (3) request records regarding Movant's disability; and (4) impeach Victim with her previous trial testimony concerning Movant's disability.

         The motion court granted Movant's request for an evidentiary hearing on his amended motion. A partial hearing was held on December 15, 2016, and was completed on March 30, 2017. At the evidentiary hearing, trial counsel acknowledged that, although she did not remember specifics about the trial, she knew the facts and circumstances very well at the time of the trial and felt fully prepared to try the case and defend Movant.

         When questioned regarding her failure to make objections during the prosecutor's opening statement and cross-examination of Ms. Marshall, trial counsel testified that she did not recall her specific trial strategy for not objecting.[3] Regarding the opening statement, trial counsel testified it was possible she did not object because she did not want to call the jury's attention to the specific statement and believed that the reference of the uncharged crime was to the actual facts of the incident as alleged by the Victim. As to the cross-examination of Ms. Marshall, trial counsel testified that it was possible that she did not object because Ms. Marshall was not a suspect or party to the case, therefore she did not have the same right to remain silent (about Movant's whereabouts).

         As to Movant's medical records, trial counsel testified that Movant had agreed to proceed with an alibi defense, therefore she did not believe his medical records would be necessary or relevant to that defense. At trial, Ms. Marshall was called as an alibi witness to support the defense that Movant was at her house at the time of the charged offenses. Because of the chosen defense theory, trial counsel affirmed that any focus on collateral matters could have detracted from the alibi defense. Movant did not produce his medical records at the evidentiary hearing.

         Lastly, regarding the impeachment of Victim, trial counsel stated that, even though she did not impeach Victim on the basis of how long she worked as Movant's health care aide and her knowledge of Movant's medical disability, she "attacked [Victim's] credibility in other ways." Trial counsel stated that she believed the points by which she attacked Victim's credibility were stronger since Victim ultimately admitted that she had committed fraud and lied under oath. Additionally, trial counsel testified that presenting evidence of Movant's medical disability could have detracted from the alibi defense.

         On August 16, 2017, the motion court issued its findings of fact, conclusions of law, and judgment denying Movant's amended motion. The motion court held that trial counsel was not ineffective for failing to: (1) object to the prosecutor's questioning of Ms. Marshall because there was no legal basis for an objection, and even if there was, there was no prejudice; (2) obtain and present Movant's medical records showing he had a medical disability because Movant "did not produce these records at the evidentiary hearing and conceded that he had not met his burden of proof with respect to this allegation"; (3) object to the prosecutor's reference during opening statement to Movant's uncharged crime because the objection would have been unmeritorious and there was overwhelming evidence of Movant's guilt so that there was no prejudice; and (4) impeach Victim because trial counsel "extensively cross-examined Victim and impeached her with regard to other matters reflecting on her credibility."

         This appeals follows.

         II. Standard of Review

         Appellate review of a motion court's Rule 29.15 judgment "is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous." Price v. State, 422 S.W.3d 292, 294 (Mo. banc 2014); Rule 29.15(k). "Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made." Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000). If a motion court's judgment on a Rule 29.15 motion is sustainable on any ground, then a reviewing court must uphold it. McGuire v. State, 523 S.W.3d 556, 563 (Mo. App. E.D. 2017).

         III. Discussion

         Movant offers four points on appeal, arguing in each that the motion court clearly erred in denying his amended Rule 29.15 motion because he proved by a preponderance of the evidence that his trial counsel was ineffective in multiple ways. Because all four points rest on whether counsel provided ineffective assistance of counsel, we apply the test from Strickland v. Washington, 466 U.S. 668 (1984) to each point. To establish ineffective assistance of counsel under Strickland, a movant must prove "by a preponderance of the evidence that (1) trial counsel failed to exercise the level of skill and diligence that reasonably competent counsel would exercise in a similar situation and (2) the movant was prejudiced by that failure." Hopkins v. State, 519 S.W.3d 433, 436 (Mo. banc 2017); Strickland, 466 U.S. at 687. If a movant fails to establish either the performance or the prejudice prong, "then we need not consider the other and the claim of ineffective assistance must fail." Roberts v. State, 535 S.W.3d 789, 797 (Mo. App. E.D. 2017).

         To satisfy the first prong, a movant must overcome the strong presumption that trial counsel's conduct was reasonable and effective by showing "specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." McGuire, 523 S.W.3d at 563 (quoting Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009)).

         To satisfy the prejudice prong of the Strickland test, a movant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006); Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

         Point I

         In Movant's first point, he argues that the motion court clearly erred in denying his PCR motion because he showed by a preponderance of the evidence that his trial counsel was ineffective for failing to object during the prosecutor's cross-examination of Ms. Marshall when the prosecutor asked why she did not volunteer exculpatory evidence to the prosecutor's office or police.

         To prevail on a claim of ineffective assistance of counsel for failure to object, a movant must show that counsel's objection would have been meritorious and the failure to object resulted in a substantial deprivation of his right to a fair trial. Shelton v. State, 440 S.W.3d 464, 470 (Mo. App. E.D. 2014). In a claim of ineffective assistance, a trial counsel's failure to object is ordinarily considered trial strategy, and is therefore afforded considerable deference. Nigro v. State, 467 S.W.3d 881, 886 (Mo. App. W.D. 2015).

         In the present case, Movant has failed to show by a preponderance of the evidence that trial counsel was ineffective for failing to object to prosecutor's cross-examination of Ms. Marshall. At trial, Movant's alibi defense was established by Ms. Marshall's testimony. During Ms. Marshall's cross-examination, the following questioning occurred:

[Prosecutor]: Let me ask you this. Shortly after February 19, 2011, you were aware that your son had been charged with this case, is that correct?
[Ms. Marshall]: Yes.
[Prosecutor]: Did you ever talk to the police?
[Ms. Marshall]: No.
[Prosecutor]: Never told any police officers that your son was with you?
[Ms. Marshall]: Oh, yes, I did. I'm sorry. The night that they came to arrest him.
[Prosecutor]: Who was that?
[Ms. Marshall]: They arrested him at my home.
[Prosecutor]: Who was that that you ...

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