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Voss v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

March 19, 2019

JASON C. VOSS, Appellant,

          Appeal from the Circuit Court of Lincoln County Cause No. 16L6-CC00099 Honorable Thomas J. Frawley



         Jason C. Voss ("Movant") appeals the motion court's judgment denying his Rule 29.15 motion for post-conviction relief ("PCR") after an evidentiary hearing.[1] Movant offers five points on appeal. Movant argues that the motion court clearly erred in denying his Rule 29.15 motion because he proved by a preponderance of the evidence that he was denied effective assistance of counsel in that: (1) appellate counsel failed to assert on direct appeal that the trial court erred in overruling Movant's trial counsel's objection to the admission of Douglas Geiger's ("Victim") death certificate; (2) trial counsel failed to request that the trial court redact from Victim's death certificate that the manner of death was a homicide; (3) trial counsel essentially admitted to Movant's guilt of involuntary manslaughter and distribution of a controlled substance during closing argument; (4) trial counsel failed to include in Movant's motion for a new trial that the trial court erred in overruling trial counsel's objection to the testimony of two witnesses (during the penalty phase) pertaining to Movant's involvement in the death of individuals to whom Movant had provided heroin, Movant's association with individuals who overdosed using heroin, and Movant's use of heroin in the presence of a child (Points IV and V). 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 second-degree felony murder and distribution of a controlled substance for his involvement in Victim's death. Trial was held before the Circuit Court of Lincoln County on February 7, 2014, and from February 10, 2014 through February 14, 2014. The following is a summary of the evidence that was presented at Movant's jury trial.

         On April 22, 2012, Movant and his friend, Curtis Widener ("Curtis"), were visiting Movant's sister, Wendy Voss ("Wendy"), at her home when Victim called asking Wendy to sell him heroin. Because Wendy had reservations about selling heroin to Victim, Movant agreed to meet Victim and sell him nine capsules of heroin. Curtis agreed to drive Movant to Victim's location in exchange for drugs. Movant and Curtis picked Victim up from his location and, upon Victim's request, drove him to a hotel in Troy, Missouri. On their way to the hotel, Movant handed Victim the nine capsules of heroin as well as two syringes after Victim requested them. Victim promised to pay Movant for the heroin after trying it. Victim gave Curtis one capsule of heroin for driving.

         When the three men arrived at the hotel, Movant and Curtis accompanied Victim to his hotel room at Victim's invitation to drink some beer. Curtis poured out a can of beer, and Victim took the empty beer can and started to cut the bottom of the can to prepare the heroin. Movant asked Victim to allow him to cut the can because he had been "doing it a lot longer" and "was a lot better at it."[2] Victim then mixed two capsules of heroin in the cut-up can and, after observing that Victim was "rough" with the needle, Movant drew up the heroin into the syringes. Victim injected himself with the heroin. A few minutes later, Movant noticed that Victim's eyes started to cross and that he began rocking back and forth. Movant believed Victim was manifesting signs of a negative reaction to the heroin and asked Victim several times how he was feeling. Victim responded that he was "alright" to each inquiry. Movant became concerned and went to get ice in case he needed it to bring Victim out of a possible drug-induced coma. Shortly thereafter, Victim paid Movant $100 dollars for the heroin capsules, and Movant and Curtis left the hotel; Victim stayed alone in his hotel room.

         After leaving the hotel, Movant and Curtis had a conversation about returning to the hotel room to check on Victim due to the reaction he displayed after injecting himself with the heroin. Later that day, Movant also had a conversation with Wendy about returning to the hotel room to check on Victim. Ultimately, Movant did not return to the hotel or attempt to obtain medical help for Victim.

         The following morning, a hotel housekeeper knocked on Victim's door after the checkout time, but no one answered. When she entered the room, the housekeeper found Victim lying face-down on the bed. She noted that there were needles and drugs, and that the room smelled like alcohol. She believed that Victim had suffered a drug overdose and called 9-1-1.

         Major Raymond Floyd ("Major Floyd") with the Troy police department responded to the call. When he arrived at Victim's hotel room, he saw Victim lying face down on the bed and observed signs of drug use, including the bottom of an aluminum beer can with residue and burn marks, two syringes, two empty capsules, and six capsules with a powdered substance (later identified as heroin). Major Floyd also found an ice bucket containing water, three unopened cans of beer, three plastic cups containing beer, and a note with the name "Wendy" and two phone numbers written on it. A review of the hotel's surveillance videos showed that Victim arrived at the hotel with two other men, later identified as Movant and Curtis. About twenty-five minutes later, Movant and Curtis were seen leaving the hotel without Victim. When Robert Shramek ("Shramek"), the county coroner, arrived at the hotel, he pronounced Victim dead at the scene and Victim's body was transported to the medical examiner's office for an autopsy.

         Movant was arrested and a detective with the Lincoln County sheriff's department questioned Movant.[3] During the interrogation, Movant eventually admitted that he: (1) sold nine capsules of heroin to Victim for $100 dollars; (2) provided Victim with two syringes on the way to the hotel; (3) cut the beer can for Victim in order for Victim to prepare heroin in it; and (4) got ice for Victim in case he needed it to shock Victim out of a possible drug-induced coma.

         Victim's toxicology report revealed that Victim had been using heroin prior to his death. Christopher Long, a forensic toxicologist, testified that one of the indicators of a heroin overdose is a person's eyes becoming crossed after injecting themselves with heroin. Dr. Kamal Sabharwal, a medical examiner, performed the autopsy and determined that the cause of death was heroin intoxication. A death certificate was issued by Shramek, which listed the cause of death as heroin intoxication and manner of death as a homicide. Shramek explained that he determined the manner of death was a homicide based on the fact that a criminal investigation was conducted, the items left at the death scene, his review of the autopsy and toxicology report, and his prior training as a law enforcement officer and emergency medical technician.

         Prior to trial, Movant's trial counsel filed a motion in limine to exclude the death certificate on the grounds that Shramek's conclusion regarding the manner of death invaded the province of the jury. The trial court denied the motion, and found that the death certificate was admissible. During Shramek's direct-examination, the prosecutor offered the death certificate into evidence, and trial counsel objected to its admission.[4] The trial court overruled the objection, and the death certificate was admitted into evidence and published to the jury.

         After all of the evidence was presented, trial counsel made the following statement during her closing argument:

The State wants you to hold [Movant] responsible for [Victim's] death because he didn't call 9-1-1, but [Movant] thought [Victim] was okay when they left because [Victim] said he was fine. [Movant] thought about going back to check on [Victim], but he didn't have a way to get there on his own. He was being driven around by people that weekend. And if not going back for help is what bothers you, then you can find [Movant] guilty of Involuntary Manslaughter in the First Degree. Was it reckless for [Movant] not to go back? Maybe it was. If you want to hold [Movant] responsible for his actions that day, find him guilty of Distribution of a Controlled Substance.
Did [Movant] give [Victim] the Heroin pills? He did. But don't find my client guilty of Murder in the Second Degree. [Victim's] death did not result from my client selling drugs to [Victim]. [Victim's] death resulted from [Victim] taking a syringe full of Heroin and injecting it into his arm.

         Movant's trial counsel and the State agreed on the jury instructions; the jury was instructed on second-degree murder, first-degree involuntary manslaughter (a lesser-included offense of second-degree murder), and distribution of a controlled substance. The jury found Movant guilty of first-degree involuntary manslaughter and distribution of a controlled substance.

         The Penalty Phase

         During the penalty phase, the trial court allowed both Jessica Geiger ("Geiger"), Victim's sister, and Missy Kruse ("Kruse"), Movant's former probation officer, to testify. Specifically, Geiger testified about Movant being a connecting factor in the deaths of other individuals who had died due to a heroin overdose and that Movant was the last one to see these same individuals alive. She explained that other families were present in the courtroom to represent the lives of their loved ones who they had lost "at the hands of [Movant]." Defense counsel objected on the grounds of hearsay; the objection was overruled.

         Kruse testified that she was assigned to supervise Movant in October of 2011 while he was on probation for the misdemeanor offense of endangering the welfare of a child. She described the events that led to the charged offense:

According to the Police Reports obtained, [Movant] was in a home with, at the time I believe it was his ex-wife, their small child and two other adults. In the home there was Heroin and Xanex being used. The two people that own the home went into distress. His wife had also used and so he had told the wife to take their son out of the house so that he could call 9-1-1. From what I understand, the gentleman … that owned the house died that day. The other, the female did survive the overdose. However, his wife, when she took the son out of the home, passed out on a busy side street and the two-year-old was found walking in a busy intersection.

         Trial counsel objected on the grounds of hearsay and requested a continuing objection; trial counsel's objection was overruled, but was granted a continuing objection. Kruse further testified that in Movant's initial assessment phase, Movant admitted to her that Movant has witnessed numerous overdoses in the past. She explained that "[Movant] appeared proud that ...

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