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Shockley v. State

Supreme Court of Missouri, En Banc

April 16, 2019

LANCE C. SHOCKLEY, Appellant,
v.
STATE OF MISSOURI, Respondent.

          APPEAL FROM THE CIRCUIT COURT OF CARTER COUNTY The Honorable Kelly W. Parker, Judge

          GEORGE W. DRAPER III, JUDGE

         Lance Shockley (hereinafter, "Movant") was found guilty by a jury of one count of first-degree murder for the death of Missouri highway patrolman Sergeant Carl DeWayne Graham, Jr. (hereinafter, "Victim"). The jury found the facts required by law to impose a death sentence, but it was unable to agree whether to recommend a sentence of death or life imprisonment. Pursuant to section 565.030.4, RSMo 2000, [1] the circuit court conducted an independent review of the facts and imposed a death sentence. This Court affirmed Movant's conviction and sentence. State v. Shockley, 410 S.W.3d 179 (Mo. banc 2013).

         Movant appeals the motion court's judgment overruling his Rule 29.15 motion after an evidentiary hearing. This Court has exclusive jurisdiction over this appeal because a death sentence was imposed. Mo. Const. art. V, sec. 10; see also Standing Order, June 16, 1988 (effective July 1, 1988). This Court affirms the motion court's judgment.

         Factual and Procedural History[2]

         On November 26, 2004, Movant was involved in a motor vehicle accident resulting in the death of his passenger. Over the next several months, Victim conducted the investigation of the accident, which criminally implicated Movant.

         On March 20, 2005, at approximately 12:20 p.m., Movant borrowed his grandmother's red Pontiac Grand Am (hereinafter, "the red car"), which had a bright yellow sticker on the trunk near the driver's side. Between 1:45 p.m. and 4:15 p.m. that afternoon, various witnesses noticed a red car with a bright yellow sticker affixed to the driver's side of the trunk parked on the wrong side of the road a few hundred feet from Victim's residence.

         At 4:03 p.m. that day, Victim returned home, backed his patrol car into his driveway, and radioed dispatch he was ending his shift. As Victim exited his vehicle, he was shot from behind with a high-powered rifle that penetrated his Kevlar vest. The bullet severed Victim's spinal cord at the neck, immediately paralyzing him. Victim fell backward and suffered fractures to his skull and ribs upon impact with the pavement. The killer then approached Victim, who was still alive, and shot him twice more with a shotgun into his face and shoulder. The recovered rifle bullet was deformed, but ballistics experts determined it belonged to the .22 to .24 caliber class of ammunition that would fit a .243 caliber rifle. Investigators later learned that, around 7 p.m. on the evening of Victim's murder, Movant's wife gave Movant's uncle a box of .243 caliber bullets and stated, "[Movant] said you'd know what to do with them."

         Movant returned the red car to his grandmother between 4:15 p.m. and 4:30 p.m. that same day. Investigators calculated it took approximately eighteen minutes to drive from Movant's grandmother's house to the location where the red car with the yellow sticker had been parked near Victim's home.

         Two highway patrol investigators interviewed Movant at his residence that evening. Movant immediately denied killing Victim and stated he spent all day working around his house with his neighbor, Sylvan Duncan (hereinafter, "Sylvan").[3] The next day, Movant again met with investigators and elaborated on the alibi. Movant claimed he was visiting relatives, including his grandmother, and he watched from his living room as Sylvan pushed brush. Movant stated he knew Victim was investigating him for the fatal accident and, without prompting, declared he did not know where Victim lived.

         Later that day, Movant visited his grandmother and instructed her to tell the police he had been home all day the day Victim was shot. When his grandmother told Movant she would not lie for him, he put his finger over her mouth and said, "I was home all day."

         Police arrested Movant on March 23, 2005, for leaving the scene of the car accident that resulted in his passenger's death. The state subsequently charged Movant with leaving the scene of a motor vehicle accident, first-degree murder for Victim's death, and armed criminal action. The state proceeded to trial only on the first-degree murder charge and sought the death penalty. Movant was represented initially by several public defenders, including Thomas Marshall (hereinafter, "Marshall" and, collectively, "the first trial team"). Movant later obtained private counsel and was represented at trial by Brad Kessler ("hereinafter, "Kessler"), David Bruns (hereinafter, "Bruns"), and Mollyanne Henshaw (hereinafter, "Henshaw" and collectively, "trial counsel").

         The state theorized Movant killed Victim to stop the fatal car accident investigation. Movant's defense was it was ridiculous for him to believe, simply by killing Victim, law enforcement would halt its investigation into the accident. Trial counsel also argued the police improperly directed all their investigative attention toward him rather than pursuing other possible perpetrators.

         After a five-day guilt phase proceeding, the jury found Movant guilty of first-degree murder. During the penalty phase, the state submitted four statutory aggravators pursuant to section 565.032.2: (1) Victim was a "peace officer" and the "murder was committed because of the exercise of his official duty;" (2) Movant was depraved of mind when he killed Victim and, "as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman;" (3) Victim was murdered "for the purpose of avoiding ... or preventing a lawful arrest;" and (4) Victim was a "potential witness in [a] past or pending investigation ... and was killed as a result of his status as a ... potential witness."

         The jury found the first, third, and fourth statutory aggravators were proven beyond a reasonable doubt. The jury did not find unanimously the circumstances in mitigation outweighed those in aggravation. However, the jury was unable to agree which punishment to recommend. After overruling Movant's motion for new trial, the circuit court imposed a death sentence pursuant to section 565.034.4.

         Movant appealed and raised nine points of error. This Court affirmed the circuit court's judgment and conducted an independent proportionality review pursuant to section 565.035.3. Movant filed a timely Rule 29.15 motion for post-conviction relief, alleging several claims of ineffective assistance of trial and appellate counsel. After an evidentiary hearing, the motion court issued findings of fact and conclusions of law, made credibility determinations, and denied Movant relief. Movant now appeals, raising seventeen claims of error.

         Standard of Review

         This Court reviews the denial of post-conviction relief to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). "A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made." Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013). The motion court's findings are presumed correct. Johnson v. State, 406 S.W.3d 892, 898 (Mo. banc 2013). "This Court defers to 'the motion court's superior opportunity to judge the credibility of witnesses.'" Barton v. State, 432 S.W.3d 741, 760 (Mo. banc 2014) (quoting State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991)).

         To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence his or her trial counsel failed to meet the Strickland test to prove his or her claims. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, Movant must demonstrate: (1) trial counsel failed to exercise the level of skill and diligence reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure. Id. at 687.

         Movant must overcome the strong presumption trial counsel's conduct was reasonable and effective. Johnson, 406 S.W.3d at 899. To overcome this presumption, a movant must identify "specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009). Trial strategy decisions may be a basis for finding ineffective assistance of counsel only if that decision was unreasonable. Id. "[S]trategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable …." Dorsey v. State, 448 S.W.3d 276, 287 (Mo. banc 2014) (quoting Strickland, 466 U.S. at 690).

         "To establish relief under Strickland, a movant must prove prejudice." Johnson, 406 S.W.3d at 899. Prejudice occurs when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Deck v. State, 68 S.W.3d 418, 429 (Mo. banc 2002) (quoting Strickland, 466 U.S. at 694). Prejudice in a death penalty case is "a reasonable probability that, but for counsel's deficient performance, the jury would have concluded the balance of aggravating and mitigating circumstances did not warrant death." Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009) (quoting State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997)). Movant's points on appeal will be addressed out of order for clarity.

         Points I through IV - Juror 58

         Movant raises four points related to Juror 58's conduct during voir dire and while serving on the jury. Two months before serving on the jury, Juror 58 published a 184-page book, which he described as a fictionalized autobiography. The book contains six pages chronicling the protagonist's brutal and graphic revenge murder of a defendant who killed the protagonist's wife in a drunken-driving accident. The protagonist viewed the defendant as escaping justice in the court system because the defendant received only probation following his conviction. The book's front and back covers contain illustrations of blood spatter. The back cover states the protagonist's life changed forever when his wife was killed and her murderer was set free. The cover states the protagonist "sought vengeance" and "seeks justice" and "knows he will die fighting the system."

         Point I - Failure to Question Juror 58 during Voir Dire

         Movant argues the motion court clearly erred in denying his claim trial counsel were ineffective for failing to question Juror 58 when he volunteered he was a published author. Movant claims questioning Juror 58 about the book's contents would have uncovered grounds to strike him for cause. Movant claims he was prejudiced because the book's contents demonstrated Juror 58 could not serve fairly and should have been struck for cause.

          A defendant has a constitutional right to a fair and impartial trial. U.S. Const. amends. VI, XIV; Mo. Const. art. I, sec. 18(a). This right includes "adequate voir dire to identify unqualified jurors." Knese v. State, 85 S.W.3d 628, 632 (Mo. banc 2002). "[A] veniremember should be asked if he or she holds any prejudices or biases that would 'prevent or substantially impair the performance of his [or her] duties as a juror in accordance with his [or her] instructions and his [or her] oath.'" Id. at 632 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980)). "This inquiry is meant to reveal whether a juror can set aside any prejudices and impartially fulfill his [or her] obligations as a juror." Id.; Wainwright v. Witt, 469 U.S. 412, 421-22, 105 S.Ct. 844, 850, 83 L.Ed.2d 841, 851 (1985).

         "A challenge for cause will be sustained if it appears that the venireperson cannot 'consider the entire range of punishment, apply the proper burden of proof, or otherwise follow the court's instructions in a first degree murder case.'" State v. Smith, 32 S.W.3d 532, 544 (Mo. banc 2000) (quoting State v. Rousan, 961 S.W.2d 831, 839 (Mo. banc 1998)). "In cases in which the death penalty may be imposed, a person who cannot be impartial due to an improper predisposition is unfit to serve on the jury." Dorsey, 448 S.W.3d at 299 (quoting Anderson v. State, 196 S.W.3d 28, 41 (Mo. banc 2006)). The fitness of a juror is considered in the context of the entire examination of the juror and not by focusing on one response. Middleton v. State, 103 S.W.3d 726, 734 (Mo. banc 2003).

         Failure to strike a juror who is unfit to serve because of an improper predisposition is structural error. Anderson, 196 S.W.3d at 40. When a "defendant is deprived of the right to a fair and impartial jury, prejudice therefrom is presumed." Strong v. State, 263 S.W.3d 636, 647 (Mo. banc 2008) (quoting Everage v. State, 229 S.W.3d 99, 102 (Mo. App. W.D. 2007)). "Nonetheless, in order to avail himself of this presumption, [Movant] must establish that the errors complained of resulted in his trial by a jury that was not fair and impartial." Id.

         During the death qualification voir dire, Juror 58 stated he could give meaningful consideration to returning any appropriate sentence if the jury reached that point in the proceedings. Juror 58 approached the bench during a break to inform the circuit court he failed to mention his son was a Springfield police officer and he was a published author. When trial counsel asked the venire panel whether they had family members in law enforcement, Juror 58 spoke about his son but stated it would not affect his ability to be fair in this case. Neither party questioned Juror 58 about being an author.

         Juror 58 was chosen for the jury and served as the foreman. The jury returned a guilty verdict. That evening, Movant's aunt provided trial counsel with a copy of Juror 58's book. Kessler reviewed the book overnight and presented arguments concerning Juror 58's fitness to serve as a juror the next day.

         Kessler read excerpts into the record and argued the excerpts demonstrated Juror 58 was not truthful when he answered questions during voir dire. Kessler asked the circuit court to question Juror 58 on the record about the book's contents and his personal beliefs. Kessler also requested the circuit court question all of the jurors about any effect Juror 58's personal beliefs and opinions had on jury deliberations. The circuit court denied the request to question Juror 58 because it found no evidence of juror misconduct and believed questioning Juror 58 might improperly taint the whole jury. Kessler then moved for a mistrial, arguing he would have to concede ineffectiveness for failing to inquire about the book during voir dire. The circuit court overruled the motion but advised Movant he could question the jurors, if necessary, after the trial. Juror 58 later was removed from the jury by the consent of the parties and did not participate in the penalty phase.

         In his motion for new trial, Movant argued the circuit court erred in failing to declare a mistrial after the book's contents were revealed. Movant alleged Juror 58 failed to disclose he wrote a book about the criminal justice system. Movant further alleged Juror 58 failed to inform the circuit court during voir dire he believed the court system was weak and vigilante justice was an appropriate remedy. Movant argued the book constituted evidence Juror 58 was not completely truthful about his views about the death penalty and his experiences with the criminal justice system. The circuit court overruled Movant's motion.

         On direct appeal, Movant argued the circuit court should have sustained his motion for a mistrial or motion for new trial because the book's contents were so close to the facts of Movant's case and revealed such an inherent bias it must have meant Juror 58 lied during voir dire when he stated he could be fair and impartial. Shockley, 410 S.W.3d at 199. Movant further claimed Juror 58's experiences and beliefs, as illuminated in his book, likely were influential upon the other jurors. Id. This Court found Movant's argument without merit, first noting none of the parties asked Juror 58 any questions about his book during voir dire, even after Juror 58 volunteered he was a published author. Id. at 200. Hence, Juror 58 could not have lied in response to a question he was not asked. Id. This Court further found:

While the nature of the novel's subject matter caused the court concern, the court determined that nothing in the record demonstrated that Juror 58 lied when he said he could be fair and impartial or that he was willing but reluctant to impose the death penalty. [Movant's] argument to the contrary is premised on a degree of factual congruity between the novel and the facts of the trial that does not exist. Further, [Movant's] argument that Juror 58's assurance of his impartiality was false is premised on the assumption that Juror 58 shared the views expressed by the protagonist in his novel and tried to hide that fact from the court and counsel so that he could be seated on the jury. This is inconsistent with the fact that it was Juror 58 himself who brought his book, and his son's police work, to the attention of the court and counsel so they could include these issues in their remaining line of questions.

Id. at 200-01 (footnote omitted).

         At the post-conviction evidentiary hearing, Juror 58 testified he was excited about having his first book published, and he brought at least four copies with him to the hotel. Juror 58 described the book as "a love story" with themes in which "[s]ome of them are very violent, some are heart rendering, some will make you laugh, some will make you cry and some will make you feel anger." Juror 58 admitted many of the chapters were filled with his own true life experiences or those of someone he served with in the military. Juror 58 described the book as a fictionalized autobiography, but he denied the graphic contents happened to him. Juror 58 went into great detail outlining which plot points were based on his personal experience and which ones were fictionalized. Juror 58 was questioned extensively about the book's themes and disavowed he personally held any of those ideas because it was not his personal belief the court system was not good. Further, he denied relating or expressing the book's themes to other jurors. Juror 58 was adamant the book had no bearing on his decision and no bearing on anyone else as far as he knew. Juror 58 said it became clear to him Movant was guilty only after his grandmother testified.

         Bruns testified one of his concerns during voir dire was to weed out potential jurors who were so pro-law enforcement they could not be fair. When Juror 58 mentioned his son was a police officer and he was a published author, Bruns' attention was drawn to the fact he had a law enforcement family member.

         Kessler admitted Juror 58 was not asked any follow-up questions after he revealed he was a published author. Kessler explained, "[O]ne of the reasons I didn't ask any further questions at the time because, I mean, in 2008, '09, '10, self-publishing just sort of meant that … it was a vanity project" and the book was not distributed widely.[4] Because the central issue concerned contradictory ballistics evidence, Kessler did not see a problem with Juror 58 being a self-published author or see a reason to question him about it. Instead, Kessler testified he noticed Juror 58 had some military experience, his son was a police officer, and they both had knowledge about guns. Kessler remembered conceding ineffective assistance of counsel for failing to follow up with Juror 58 after reading the book at trial and stated he never stated that on the record before. Kessler explained he said he was ineffective to try to force the circuit court to allow trial counsel to question Juror 58 about the book or remove him from the jury. Kessler testified had he asked follow-up questions about the book, he would have moved to strike Juror 58 for cause.

         The motion court found it was reasonable for trial counsel to focus their attention on Juror 58's relationship with his police officer son and the impact that might have had on his ability to be a fair and impartial juror rather than on Juror 58's participation in a hobby or profession that had no bearing on his suitability as a juror in this particular case. This Court agrees.

         Trial counsel articulated strategic reasons why they chose not to question Juror 58 about being a published author. Trial counsel explained the case involved the murder of a law enforcement officer and contradictory ballistics evidence. Trial counsel questioned Juror 58 regarding his son being a police officer and his knowledge of guns, which were crucial parts of their trial strategy in selecting jurors and in presenting their theory of the case. "It is not ineffective assistance of counsel for an attorney to pursue one reasonable trial strategy to the exclusion of another, even if the latter would also be a reasonable strategy." Clayton v. State, 63 S.W.3d 201, 207-08 (Mo. banc 2001).[5]

         Movant also attacks Juror 58's veracity due to his characterization of the book as "a love story" in the face of its graphic nature criticizing the criminal justice system. After careful review of the book, Juror 58 accurately described the overall storylines within the book as "[s]ome of them are very violent, some are heart rendering, some will make you laugh, some will make you cry and some will make you feel anger." However, even if this Court rejected Juror 58's primary characterization of his book as "a love story," mere authorship of a book expressing unfavorable views of the justice system over the course of six pages does not prove Juror 58 personally held the beliefs espoused in his book rendering him unfit to serve on the jury. It is worth noting this Court found in Movant's direct appeal "a degree of factual congruity between the novel and the facts of the trial [did] not exist." Shockley, 410 S.W.3d at 200-01 (emphasis added).

         Although Kessler admitted he was ineffective for failing to question Juror 58 about being an author, the record does not support a finding that, had Kessler discovered the book's contents and questioned Juror 58 about them that Juror 58 would have been struck for cause absent some showing the book reflected his personal beliefs. Juror 58 stated during voir dire he could be fair and impartial in a case in which a law enforcement officer was killed because he "has his own mind" in listening to the facts. At the evidentiary hearing, Juror 58 testified he did not hold the personal beliefs in the book. Movant presented no evidence to contradict Juror 58's testimony. Hence, Movant cannot demonstrate he was prejudiced by trial counsel's failure to question Juror 58 about the book. See Glass v. State, 227 S.W.3d 463, 474 (Mo. banc 2007) (holding although trial counsel testified it was a mistake to forego questioning the venire panel, the movant could not prove prejudice because he made no showing the jurors were unable or unwilling to consider the evidence presented in light of their testimony they were willing to follow the circuit court's instructions). The motion court did not err in denying this claim.

         Point II - Failure to Present Witnesses at Motion for New Trial Hearing Regarding Alleged Juror Misconduct

         Movant alleges the motion court clearly erred in denying his claim trial counsel were ineffective for failing to call witnesses at the motion for new trial hearing to demonstrate how Juror 58's actions constituted prejudicial juror misconduct and violated the circuit court's directive regarding reading materials while sequestered. Movant alleges trial counsel should have called jurors, court personnel, and the trial judge-after seeking his disqualification-when invited to do so by the circuit court to prove this allegation.

         Movant can prevail on a claim for ineffective assistance of counsel based on trial counsel's alleged failure to investigate only if he can demonstrate: (1) trial "counsel's failure to investigate was unreasonable" and (2) Movant "was prejudiced as a result of [trial] counsel's unreasonable failure to investigate." Barton, 432 S.W.3d at 759. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Collings v. State, 543 S.W.3d 1, 16 (Mo. banc 2018) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052).

         On March 30, 2009, the circuit court entered an order, contemplating a hearing may be required to present additional testimony, evidence, and arguments by the parties regarding Juror 58's conduct. To avoid the appearance of impropriety, the circuit court ordered "no member of the jury, including all alternates, shall discuss any matter regarding this case with any person, and no one shall be permitted to discuss any matter with them (all jurors and alternates)."

         On April 22, 2009, Movant filed his motion for new trial, which contained sixteen claims of trial court error. The motion alleged the circuit court erred in refusing trial counsel's request to hold a hearing to question Juror 58 about the book's contents and his beliefs. The motion further argued the circuit court erred in refusing trial counsel's request to hold a hearing to question all of the jurors about the effect Juror 58's personal beliefs and opinions had on the jury's guilt phase deliberations.

         On April 29, 2009, the circuit court issued a letter to the attorneys stating, "I want to determine whether the state or [Movant] will be requesting (or subpoenaing) any juror in this case to testify about any issue raised at trial or in pending motions." The circuit court advised the attorneys to make arrangements for a conference if either side planned to question any juror at the post-trial hearing. On May 22, 2009, the circuit court held the hearing on Movant's motion for new trial. Kessler stated the defense did not intend to call any additional witnesses, including Juror 58.

         On direct appeal, Movant argued the circuit court committed reversible error for failing to conduct its own inquiry sua sponte into whether extraneous information or prejudicial materials were part of the jury's deliberations. This Court found Movant's claim without merit, stating, "Not only did neither counsel take the judge up on this offered opportunity to question Juror 58 about whether he had discussed his novel with other jurors, defense counsel specifically waived any right to such a hearing." Shockley, 410 S.W.3d at 201. Because trial counsel affirmatively waived the opportunity to call witnesses, this Court refused to speculate whether Juror 58 shared his book's themes or viewpoints with other jurors or whether he lied during voir dire about being fair and impartial. Id.

         At the evidentiary hearing, Kessler testified he was not allowed to contact the jurors prior to filing the motion for new trial because of the March 30, 2009, order. Bruns testified the circuit court indicated it would hold a conference and let trial counsel subpoena jurors, which they discussed but did not do.

         Even if this Court believes trial counsel should have taken up the circuit court's invitation to hold a hearing on Juror 58's alleged misconduct, this belief alone is insufficient to find trial counsel ineffective. "The question in an ineffective assistance claim is not whether counsel could have or even, perhaps, should have made a different decision, but rather whether the decision made was reasonable under all the circumstances." Johnson, 406 S.W.3d at 901 (quoting Henderson v. State, 111 S.W.3d 537, 540 (Mo. App. W.D. 2003)). "Reasonable choices of trial strategy, no matter how ill-fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance." Anderson, 196 S.W.3d at 33. "Ineffective assistance of counsel will not lie where the conduct involves the attorney's use of reasonable discretion in a matter of trial strategy, and it is the exceptional case where a court will hold a strategic choice unsound." State v. White, 798 S.W.2d 694, 698 (Mo. banc 1990).

         This case does not present the exceptional case requiring a finding trial counsel were ineffective in failing to present witnesses on this issue. Trial counsel both testified, after the jury could not agree on punishment, they believed they were in a better position to argue for a life sentence, which would be the ultimate goal for any reasonable trial counsel after the jury's guilty verdict. Kessler testified he considered it a victory that the jury could not agree on punishment in light of everything that transpired. Bruns testified the trial judge had "been good" to them during the trial and believed-perhaps naively-that not "opening the can of worms" regarding the juror misconduct issue would inure to Movant's benefit. Finally, Kessler had significant trial experience and never had a trial judge impose a death sentence after the jury could not agree on punishment in cases he tried. Even though trial counsel's strategy failed in hindsight, the record clearly demonstrates trial counsel evaluated their options, drew upon their experience, and chose to forego "opening the can of worms" regarding Juror 58's alleged misconduct in exchange for attempting to persuade the circuit court to impose a life sentence to save Movant's life. Trial counsel's decisions were reasonable under all of the circumstances. The motion court did not clearly err in denying this claim. \

         Point III - Circuit Court's Timely Disclosure Regarding Juror 58's Book

         Movant argues the motion court clearly erred in denying his claim the circuit court failed to timely disclose Juror 58 brought his book to the sequestered jury. Movant argues the circuit court had an affirmative duty to apprise trial counsel of Juror 58's misconduct in a timely fashion. By failing to apprise counsel timely, Movant argues he was deprived of an opportunity to demonstrate prejudice warranting a mistrial or ordering a new trial.

         In the April 29, 2009, letter, the circuit court informed the attorneys, "[R]egarding the 'book' referred to at trial, I have been advised that the same juror gave a copy of his book during the week of trial to the [sheriff]." At the motion for new trial hearing, Kessler stated the parties were unaware the circuit court had a copy of the book until he received the April 29, 2009, letter, which was after the motion for new trial was due. The circuit court explained the sheriff brought in the book after the guilty verdict and gave it to his administrative assistant. The circuit court stated, "At that time I didn't know what the books was or its contents …. It was after the argument that I realized that it was the same book." The circuit court later confirmed it did not receive the book until after the guilty verdict was returned.

         At the evidentiary hearing, the trial judge testified that, when the parties appeared the morning after the guilty verdict to discuss Juror 58's book, he did not know if he told the attorneys he received a copy of the book. The trial judge did not remember having a conversation with court personnel about the book. The trial judge also did not remember if the April 29, 2009, letter was the first time he informed the parties he had received a copy of the book during the trial.

         Bruns and Kessler testified they did not know the trial judge had a copy of the book before they brought it to his attention, and they were told nothing until the April 29, 2009, letter. Kessler stated this constituted another ground to examine Juror 58 because he violated the circuit court's directive not to bring anything crime-related to the trial. Kessler testified he would have included this allegation in the motion for new trial had he known the circuit court had a copy of the book.

         The motion court found Movant merely established the trial judge had the ability to know about the book prior to trial counsel addressing the issue. The motion court found Movant failed to prove any misconduct or prejudice from the trial judge's actions in violation of his constitutional rights.

         Initially, this Court notes Movant's point on appeal raises different legal arguments than those presented for the motion court's consideration in his Rule 29.15 motion. Movant's motion alleged the trial judge failed to disclose timely he learned before the guilt phase deliberations Juror 58 had given the book to the sheriff and the trial judge questioned the sheriff about the book. Movant's motion further accused the trial judge of: (1) considering information not on the record; (2) prejudging the issue by considering the statements from the sheriff and other court personnel regarding the book; and (3) failing to recuse himself. Movant's motion does not allege the trial judge failed to disclose Juror 58 brought his book to the sequestered jury.

         "In actions under Rule 29.15, any allegations or issues that are not raised in the Rule 29.15 motion are waived on appeal." Johnson v. State, 333 S.W.3d 459, 471 (Mo. banc 2011) (quoting State v. Clay, 975 S.W.2d 121, 141-42 (Mo. banc 1998)). "Pleading defects cannot be remedied by the presentation of evidence and refinement of a claim on appeal." Id. Moreover, "there is no plain error review in appeals from post-conviction judgments for claims that were not presented in the post-conviction motion." McLaughlin v. State, 378 S.W.3d 328, 340 (Mo. banc 2012). To the extent Movant now claims the circuit court failed to timely disclose Juror 58 brought his book to the sequestered jury, his claim is not preserved for appeal, nor is it supported by the record. Movant does not raise any of the other grounds from his Rule 29.15 amended motion and specifically disavows his claim concerns ex parte communications.[6] The motion court did not clearly err in denying this claim.

         Point IV - Juror Misconduct by Violating the Circuit Court's Directive

         Movant argues the motion court clearly erred in denying his claim Juror 58 committed juror misconduct and violated the circuit court's directive regarding bringing his book to the sequestered jury and sharing it with the other jurors. Movant argues Juror 58's book prejudiced his ability to receive a fair trial in that its violent storyline espoused the need for vengeance because the court system was "too lenient" with criminal defendants accused of homicide offenses.

         "Issues that could have been raised on direct appeal-even if constitutional claims-may not be raised in postconviction motions, except where fundamental fairness requires otherwise and only in rare and exceptional circumstances." State v. Tolliver, 839 S.W.2d 296, 298 (Mo. banc 1992); State v. Carter, 955 S.W.2d 548, 555 (Mo. banc 1997). Generally, juror misconduct constitutes trial error and is outside the scope of post-conviction relief proceedings. Eye v. State, 551 S.W.3d 671, 677 (Mo. App. E.D. 2018). "[A] juror misconduct claim amounting to a constitutional error can only be raised in a Rule 29.15 motion when the factual basis of the juror misconduct was not discovered until after the trial." Id.

         Movant cites McQuarty v. State, 241 S.W.3d 446 (Mo. App. W.D. 2007), to support his argument this claim is cognizable because rare and exceptional circumstances require its review due to Movant's fundamental right to a fair and impartial jury in a death penalty case. In McQuarty, a juror intentionally failed to disclose a significant social relationship with the state's principal witness, and the movant raised this claim for the first time in his Rule 29.15 motion. Id. at 450. The Western District found the movant had not been afforded an opportunity to litigate the claim and held, "Given the unique posture of this case, we conclude that [the movant's] post-conviction motion establishes exceptional circumstances that have prevented him from asserting a claim of constitutional error that may have deprived him of a fair trial." Id. at 454.

         In this case, Movant had an opportunity to litigate this claim during the hearing on his motion for new trial. However, trial counsel declined to raise the issue in hopes of strengthening their argument for a life sentence for Movant. Further, Movant raised issues related to this claim on direct appeal, arguing he suffered prejudice because Juror 58 may have improperly influenced other jurors by speaking about the book's contents, which he believed impacted the verdict. Shockley, 410 S.W.3d at 199-200. This Court found no basis for reversal was demonstrated because it would not speculate about Juror 58's actions or influences when trial counsel declined to question Juror 58 at the hearing on Movant's motion for new trial. Id. at 201-02.

         While the state agrees Movant could have presented this claim in his direct appeal, it cites Jackson v. State, 538 S.W.3d 366 (Mo. App. W.D. 2018), as authority for this Court to deny Movant's claim on the merits. In Jackson, the Western District relied on McQuarty to require the movant to demonstrate rare and exceptional circumstances exist justifying raising a claim of juror misconduct in a Rule 29.15 proceeding when the misconduct was not discovered until after the trial. Id. at 370. The court found the movant failed to allege facts demonstrating when the juror's alleged misconduct was discovered, which would make his claim noncognizable. Id. at 370-71. Nevertheless, the Western District reviewed the claim on the merits, explaining, "[A]s the circuit court granted [the movant] an evidentiary hearing on the claim, denied the substantive claim, and this [c]ourt agrees that the substantive juror misconduct claim must also fail on the merits, we will also address the substance of [the movant's] juror misconduct claim." Id. at 371. Likewise, this Court will address the merits of Movant's claim only because it presents the same procedural posture as Jackson in that the motion court heard evidence on the issue, denied the substantive claim, this Court agrees the claim fails on the merits, and it raises a challenge to the propriety of Movant's capital murder guilty verdict.

         In this point, Movant alleges Juror 58 committed intentional juror misconduct and violated the circuit court's directive about bringing his book to the sequestered jury and sharing it with the other jurors. "This Court presumes bias and prejudice occurred if a juror intentionally withholds material information. Accordingly, a finding of intentional nondisclosure of a material issue is tantamount to a per se ...


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