Court of Appeals of Missouri, Western District, Third Division
IRVING M. PATTERSON, Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF DEKALB COUNTY The Ho norable R.
Brent Elliott, Judge
Before: Mark D. Pfeiffer, Presiding Judge, Lisa White
Hardwick and Anthony Rex Gabbert, Judges
WHITE HARDWICK, JUDGE
Patterson appeals from the judgment denying his Rule 29.15
motion after he was convicted of committing violence against
an offender in the Department of Corrections. On appeal, he
contends the motion court clearly erred in denying him
post-conviction relief because his trial counsel was
ineffective for: (1) failing to object to the verdict
director on the basis that it did not cross-reference his
defense of another instruction; and (2) failing to
investigate, interview, and present the testimony of other
inmates in the correctional center. Patterson also asserts
that the motion court erred in adopting the State's
proposed judgment verbatim because it indicates the court did
not exercise independent judgment and thoughtful
consideration of the issues he presented. For reasons
explained herein, we affirm.
and Procedural History
was an inmate at the Crossroads Correctional Center, and
Christopher Reese was his cellmate. On July 3, 2009, a
corrections officer saw Patterson and another inmate, Aaron
Landers, having a brief discussion near the telephones. After
the discussion, Patterson went upstairs to his cell. Shortly
thereafter, a corrections officer saw that Landers had liquid
dripping from his hair and back. The corrections officer then
saw Landers on the ground and Reese beating Landers with his
fists. Patterson ran toward Landers and Reese and began
hitting Landers in the head, face, and upper body. According
to two corrections officers, Landers was in a defensive
position. Following the incident, corrections officers
searched Patterson and Reese's cell and found a warm bowl
that contained a hot, oily residue.
State charged Patterson as a persistent offender with one
count of committing violence against an offender in the
Department of Corrections in violation of Section 217.385,
RSMo 2000. During the subsequent jury trial, Patterson argued
that he was acting in defense of Reese. The circuit court
gave the jury the defense of others instruction but did not
reference that instruction in the verdict director. Patterson
did not object to the instructions. The jury found Patterson
guilty, and the court sentenced him to fifteen years in
prison, to run consecutively to Patterson's existing
sentences. We affirmed his conviction and sentence on direct
appeal in a per curiam order accompanied by an unpublished
memorandum. State v. Patterson, 362 S.W.3d 73 (Mo.
filed a pro se Rule 29.15 motion, which was later
amended by appointed counsel. The motion court issued
findings of fact and conclusions of law denying
Patterson's motion without an evidentiary hearing.
Patterson then filed a motion to make required findings, in
which he alleged that the motion court erred in adopting the
State's proposed findings verbatim. The State filed a
response, but the motion court did not expressly rule on
Patterson's motion; therefore, it was overruled by
operation of law 90 days after it was filed. Rule
81.05(a)(2)(A). Patterson appeals.
review the denial of a post-conviction motion for clear
error. Rule 29.15(k). The motion court's findings and
conclusions are clearly erroneous only if a review of the
entire record leaves us with a definite and firm impression
that a mistake was made. Edwards v. State, 200
S.W.3d 500, 509 (Mo. banc 2006). We presume the motion
court's findings and conclusions are correct.
obtain post-conviction relief on an ineffective assistance of
counsel claim, the movant must establish, by a preponderance
of the evidence, that his counsel failed to exercise the
customary skill and diligence of a reasonably competent
attorney under the same or similar circumstances and that he
was thereby prejudiced. Zink v. State, 278 S.W.3d
170, 175 (Mo. banc 2009) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To demonstrate
prejudice, the 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. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.'" Deck v. State, 68 S.W.3d 418,
426 (Mo. banc 2002) (alteration in original) (quoting
Strickland, 466 U.S. at 694)). Patterson had to
prove both the performance and prejudice prongs of this test
to prevail, and if he failed to satisfy either prong, we need
not consider the other. Cone v. State, 316 S.W.3d
412, 415 (Mo. App. 2010).
entitled to an evidentiary hearing, (1) the movant must
allege facts, not conclusions, warranting relief; (2) the
facts alleged must not be refuted by the record; and (3) the
matters complained of must have prejudiced the movant.
Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc
2003); Rule 29.15(h).
Point I, Patterson contends the motion court clearly erred in
denying his claim that trial counsel was ineffective for
failing to object to the verdict director, which he alleges
was deficient because it did not cross-reference the defense
of another instruction. He argues that he was prejudiced
because the verdict director purported to cover the whole
case, but it actually ignored his defense, and the jury was
not fully instructed on how to evaluate the evidence.
Patterson asserts that, if his counsel had objected, the
verdict director would have been corrected to include a
reference to his defense of another instruction and there is
a reasonable probability that the result of his trial would
have been different. The motion court denied this claim after
finding that the record conclusively refuted Patterson's
claim of prejudice.
record shows that, during opening statements, Patterson's
trial counsel told the jury that the only reason Patterson
got involved in the altercation between Reese and Landers was
because he wanted to protect and defend his cellmate, Reese,
whom he believed was in danger from Landers. Patterson
testified that he hit Landers only because he thought Landers
was going to throw Reese over a railing, and he wanted to
help out his cellmate.
verdict director given to the jury in this case, Instruction
No. 5, was ...