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Patterson v. State

Court of Appeals of Missouri, Western District, Third Division

March 19, 2019

IRVING M. PATTERSON, Appellant,
v.
STATE OF MISSOURI, Respondent.

          APPEAL 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

          LISA WHITE HARDWICK, JUDGE

         Irving 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.

         Factual and Procedural History[1]

         Patterson 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.

         The 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. App. 2011).

         Patterson 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.

         Standard of Review

         We 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. Id.

         To 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).

         To be 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).

         Analysis

         In 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.

         The 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.

         The verdict director given to the jury in this case, Instruction No. 5, was ...


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