Court of Appeals of Missouri, Southern District, Second Division
JAMES L. JARRETT, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF NEW MADRID COUNTY Honorable W.
Keith Currie, Special Judge
JEFFREY W. BATES, J.
Jarrett (Jarrett) appeals from an order denying his amended
Rule 29.15 motion to set aside his convictions for one count
of forcible rape and two counts of first-degree statutory
sodomy. See §§ 566.030,
566.062. Because the motion court's decision to
deny relief after an evidentiary hearing was not clearly
erroneous, we affirm.
bore the burden of proving the grounds asserted in his
post-conviction motion by a preponderance of the evidence.
See Rule 29.15(i); McLaughlin v. State, 378
S.W.3d 328, 337 (Mo. banc 2012). Our review of the denial of
a Rule 29.15 motion is limited to determining whether the
motion court's findings of fact and conclusions of law
are clearly erroneous. Rule 29.15(k); Williams v.
State, 168 S.W.3d 433, 439 (Mo. banc 2005). We will find
clear error only if a full review of the record leaves us
with a definite and firm impression that a mistake has been
made. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc
2009). We presume the motion court's findings and
conclusions are correct. McLaughlin, 378 S.W.3d at
336-37. "The motion court is not required to believe the
testimony of the movant or any other witness, even if
uncontradicted, and this Court defers to the motion
court's determination of credibility." Smith v.
State, 413 S.W.3d 709, 715 (Mo. App. 2013). The
following summary of facts has been prepared in accordance
with these principles.
was charged with the following offenses committed in 2010
against three of his adopted children: forcible rape of his
17-year-old daughter, H.J. (Count 1); first-degree statutory
sodomy of his 13-year-old daughter, T.J. (Count 2); and
first-degree statutory sodomy of his 12-year-old son, M.J.
(Count 3). Following a jury trial in February 2014, Jarrett
was found guilty on all three counts. The trial court imposed
the jury-recommended sentences of 25 years on each count,
with the sentences on Counts 1 and 2 running concurrently and
the sentence on Count 3 running consecutively to the other
sentences. This Court affirmed Jarrett's convictions and
sentences on direct appeal in an unpublished order and
statement. State v. Jarrett, SD33266 (Mo. App.
October 6, 2015).
filed a pro se motion seeking relief pursuant to
Rule 29.15. Thereafter, appointed counsel filed an amended
motion. In the amended motion, Jarrett claimed
that his trial counsel was ineffective in three respects and
his appellate counsel was ineffective in one respect. The
motion alleged: (1) trial counsel was ineffective for failing
to call Jarrett's older daughter, H.E., as a witness; (2)
trial counsel was ineffective for failing to object to each
of the verdict-directing instructions on the ground that they
failed to identify the specific incident upon which the
jurors were required to agree and, therefore, violated
Jarrett's right to a unanimous verdict; (3) appellate
counsel was ineffective for failing to raise a plain-error
point challenging the verdict-directing instructions on the
same ground; and (4) trial counsel was ineffective for
failing to object to T.J.'s testimony about different
sexual acts Jarrett forced her to engage in other than the
November 2017, the motion court held an evidentiary hearing
at which Jarrett and his trial counsel, Daren Todd (Todd),
testified. Jarrett's appellate counsel, Margaret Johnston
(Johnston) testified via deposition. Thereafter, the motion
court issued findings of fact and conclusions of law denying
Jarrett's amended motion for post-conviction relief. This
Jarrett's points on appeal involve alleged ineffective
assistance of counsel. Because those allegations involve both
trial and appellate counsel, we will set out the applicable
standard of review for each type of claim.
first, second and fourth points contend he received
ineffective assistance of trial counsel. To prevail on a
claim of ineffective assistance of trial counsel, the movant
must satisfy a two-prong test. Zink, 278 S.W.3d at
175. First, the movant must "show that counsel's
representation fell below an objective standard of
reasonableness." Strickland v. Washington, 466
U.S. 668, 688 (1984). "A fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time." Id. at 689. Second, the movant must show
that trial counsel's failure prejudiced him. Id.
at 687; Anderson v. State, 196 S.W.3d 28, 33 (Mo.
banc 2006) (to satisfy the prejudice prong under the
Strickland test, movant is required to show there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different). Both of these prongs must be shown in
order to prove ineffective assistance of counsel.
Zink, 278 S.W.3d at 175. Movant must overcome a
strong presumption that counsel's conduct was reasonable
and effective. Id. at 176.
third point contends he received ineffective assistance of
appellate counsel. The standard for evaluating a claim of
ineffective assistance of appellate counsel is the same as
the standard for evaluating a claim of ineffective assistance
of trial counsel. Richardson v. State, 386 S.W.3d
803, 806 (Mo. App. 2012). That is, a movant must prove his
appellate counsel's performance fell below an objective
standard of reasonableness and that his defense was
prejudiced by that unreasonable performance. Baumruk v.
State, 364 S.W.3d 518, 525 (Mo. banc 2012). Similarly,
appellate counsel's performance is "presumed
reasonable." Id. at 526. To overcome that
presumption, "the movant must establish that counsel
failed to raise a claim of error that was so obvious that a
competent and effective lawyer would have recognized and
asserted it." Tisius v. State, 183 S.W.3d 207,
215 (Mo. banc 2006). "The claimed error must have been
sufficiently serious to create a reasonable probability that,
if it was raised, the outcome of the appeal would have been
different." Id.; Meiners v. State, 540
S.W.3d 832, 842 (Mo. banc 2018).
four points on appeal, Jarrett contends the motion court
clearly erred in denying each of the four claims alleged in
his amended Rule 29.15 motion for post-conviction relief.
Jarrett asserts that he received ineffective assistance of
trial counsel for failing to call a witness (Point 1) and
failing to object to certain testimony (Point 4). In
addition, Jarrett also asserts that both trial and appellate
counsel, respectively, were ineffective for failing to object
to verdict-directing instructions at trial (Point 2) and
failing to raise a plain-error point addressing that issue on
appeal (Point 3). For ease of analysis, we discuss these
points in the order outlined above. Additional facts will be
included below as we discuss each point on appeal.
1 and 4
contends trial counsel was ineffective for failure to call
Jarrett's oldest daughter, H.E., to refute T.J.'s
testimony at trial that the first time Jarrett sexually
abused her was on Halloween night in 2005 when she was eight
years old. At trial, Jarrett testified that he never kept
T.J. from going trick-or-treating. In the amended motion for
post-conviction relief, Jarrett alleged that trial counsel
was ineffective for failing to call H.E., who would have
corroborated Jarrett's testimony. At the evidentiary
hearing, trial counsel Todd was asked why he did not call
H.E. Todd testified that he chose not to call H.E. to avoid
the possibility of the State calling Jarrett's son, E.J.,
and Jarrett's former wife as rebuttal witnesses, both of
whom potentially could have given testimony that might damage
When I was speaking with [Jarrett], I was concerned that the
State would call his son, [E.J.], as a rebuttal witness.
[Jarrett] indicated he and [E.J.] didn't have a very good
relationship, and I was concerned about that. In addition, I
was also concerned about his wife at the time … also
rebutting that presumption or that statement. I didn't
want to muddle up the record with who are we going to believe
more, the mother or the daughter. As I explained to