LANCE C. SHOCKLEY, Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF CARTER COUNTY The Honorable Kelly
W. Parker, Judge
W. DRAPER III, JUDGE
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,
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).
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.
and Procedural History
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.
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.
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
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
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"). 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.
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."
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,
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.
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 ...
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.
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.
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.
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.
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).
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.
I through IV - Juror 58
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."
I - Failure to Question Juror 58 during Voir Dire
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.
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).
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).
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.
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
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.
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.
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.
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).
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
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
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. 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.
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.
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
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).
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.
II - Failure to Present Witnesses at Motion for New Trial
Hearing Regarding Alleged Juror Misconduct
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.
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).
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
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.
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
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.
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
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).
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. \
III - Circuit Court's Timely Disclosure Regarding Juror
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.
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.
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.
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.
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.
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
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. The motion court did not
clearly err in denying this claim.
IV - Juror Misconduct by Violating the Circuit Court's
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
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.
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.
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.
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.
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