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Jindra v. State

Court of Appeals of Missouri, Western District, First Division

July 30, 2019

FRANK JINDRA, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of Howard County, Missouri The Honorable Scott A. Hayes, Judge

          Before: Victor C. Howard, Presiding Judge, Lisa White Hardwick, Judge and Gary D. Witt, Judge

          GARY D. WITT, JUDGE.

         Frank Jindra ("Jindra") brings this appeal from Howard County Circuit Court challenging the motion court's denial of his Rule 29.15[1] motion alleging ineffective assistance of counsel following an evidentiary hearing. Jindra argues that the motion court erred in denying his Rule 29.15 motion because his trial counsel ("Trial Counsel") was ineffective in failing to call a witness that he believes would have corroborated his defense. Jindra further argues that the motion court erred in denying his Rule 29.15 motion because Trial Counsel was ineffective in failing to thoroughly investigate a note in the discovery handwritten by Officer Alexandria Leiva ("Officer Leiva") which provided more clarity as to the target of his threatening statements. We affirm.

         Statement of Facts

         On February 23, 2015, Jindra filed in Boone County Circuit Court adult abuse petitions pursuant to Section 455.007 et. seq., requesting ex parte orders of protection against two of his tenants. He filed the petitions in person and deputy court clerk Latoya Gatewood ("Gatewood") received the filings. Judge Leslie Schneider ("Judge Schneider") denied the requests for ex parte relief in the petitions the following day but set the matters for hearing on the request for full orders of protection. Jindra called the courthouse to check the status of his petitions and Gatewood informed him that they had been denied but that a hearing had been set. Jindra expressed concern about his relationship with his tenants and Gatewood advised him to contact law enforcement. Jindra asked Gatewood which judge had denied his petitions and she told him that it had been Judge Schneider. Jindra, appeared very frustrated and angry and told Gatewood that, "[Judge Schneider] would be on the NBC 17 news," and that he was "going to get his gun." Gatewood, believing the statements to be threats toward Judge Schneider, then ended the conversation and called Judge Schneider who told her to contact the court Marshals.

         The Boone County Sheriff's Department and court marshals were contacted. Judge Schneider did a casenet search to see what she could learn about Jindra and determined that an attorney in her husband's law firm had previously represented him in a prior order of protection case. She contacted her husband, Tom Schneider ("Mr. Schneider") regarding Jindra's statements to Gatewood and he advised her to take the threat seriously. Jindra had previously been represented by Curt Branson ("Branson") of Jones, Schneider, & Stevens law firm where Mr. Schneider was a senior partner.

         Beginning early the same day, Jindra called the Jones, Schneider, & Stevens law firm multiple times requesting to speak with Branson. After his conversation with Gatewood, he called the firm requesting to speak with Mr. Schneider. The receptionist, Dena McMasters ("McMasters") told Jindra that Mr. Schneider was not available and he continued to hang up and call back repeatedly. McMasters asked Jindra why he needed to speak with Mr. Schneider and Jindra responded that it was because he was married to Judge Schneider. During the course of the many phone calls, Jindra became increasingly angry, upset, loud and belligerent. Jindra told McMasters that the firm had, "a really nice private parking lot, and that … maybe [they] would like to have happen to [them] what had happened to him in his parking lot in [their] nice parking lot" and then hung up. When McMasters relayed the statement Jindra made about the parking lot to Branson, he advised her that based on other knowledge he had of Jindra that the statement should be considered a threat. Approximately 20-30 minutes after Judge Schneider informed Mr. Schneider about the threats, Jindra's phone call was put through to Mr. Schneider. As soon as Mr. Schneider learned that it was Jindra on the phone, he informed Jindra "I can't talk to you" and hung up.

         Law enforcement officers were dispatched to Jindra's residence. When they knocked, Jindra opened the door while holding a rifle. The officers drew their weapons and Jindra was ordered to drop his rifle. Instead he passed the rifle back and forth between his hands before finally surrendering it to an officer. He was read his Miranda[2] rights and agreed to speak with the officers. He told the officers that he had called the courthouse and spoken with a woman who informed him Judge Schneider had denied his petitions. He admitted to making the statements to Gatewood and he admitted to calling Mr. Schneider, "to get him to talk to his wife and see reason." Jindra acknowledged he told the court clerk that he owned a rifle and that Judge Schneider would end up on the news. He also said that he did not make threats what he made were promises. He stated that he promised he "would shoot them in the legs and not kill them." He did not clarify who he was referring to when he said he would shoot someone in the legs.

         Jindra was charged with two counts of the Class C Felony of tampering with a Judicial Officer; Count I regarding the statements he made to Gatewood towards Judge Schneider and Count II for his statements to McMasters while attempting to contact Mr. Schneider. The jury found Jindra guilty and he was sentenced to one year for Count I and six months in county jail for Count II, with the sentences to run consecutively. The Court suspended execution of the sentence on Count II and placed Jindra on a five-year term of probation.

         Jindra's convictions were affirmed on direct appeal to this Court. State v. Jindra, 504 S.W.3d 187, 192 (Mo. App. W.D. 2016). In his amended Rule 29.15 motion Jindra argues, in pertinent part, that Trial Counsel erred in failing to thoroughly investigate and call Branson as a witness and Trial Counsel failed to thoroughly investigate and determine the author of a handwritten note that was included in discovery. The note stated, "said had rifle, said wasn't going to kill tenants, but shoot in legs."

         The motion court held an evidentiary hearing on February 26, 2018 ("Motion Hearing"). Branson testified at the Motion Hearing that he was called the day after "the incident" and during that phone call, Jindra told Branson that if "[Branson] didn't protect him and the court didn't protect him, he'd get a gun and protect himself."[3] Branson testified that it was likely the tenants that Jindra was afraid of and wanted protection from but Branson couldn't say for sure. Trial Counsel also testified at the hearing. Trial Counsel testified that the decision not to call Branson as a witness was trial strategy because it may have had a "more negative impact than a positive impact." Trial Counsel also testified that he did not know who wrote the handwritten note in the file but he did ask opposing counsel at trial and counsel said she did not know. Trial Counsel testified that he believed he also asked Gatewood if she was the author of the note but could not recall for sure. He also testified that he was not sure if he asked Officer Leiva if she was the author and that while he believed the note would have been useful, he also thought that the other deputies he called at trial put the testimony of Officer Leiva in a negative light and her credibility was diminished.

         Officer Leiva was also questioned at the Motion Hearing regarding a handwritten note contained in the discovery. The note stated, "said had rifle, said wasn't going to kill tenants, but shoot in legs." Officer Leiva testified at the Motion Hearing that she was the author of the handwritten note and it was in her handwriting. Officer Leiva could not recall who she was speaking to at the time or who provided her with the information and it could have been the court marshal, Judge Schneider, or the court clerk. At the hearing, Officer Leiva testified that when she spoke to Jindra on the day of the incident he "promised to shoot them in the legs, and not kill them," but that she did not know who he was referring to when he stated "them." Jindra argues that Trial Counsel could have used the note to argue that the threats he made were directed at the tenants and not Judge Schneider.

         The motion court entered its judgment on March 21, 2018, denying Jindra's amended Rule 29.15 Motion. The motion court found that it was trial strategy to not call Jindra's former attorney and this did not fall below an objective standard of reasonableness. The motion court further found that even if Trial Counsel was ineffective in failing to call Jindra's former attorney, Jindra had not been prejudiced because, considering the totality and strength of the other evidence of ...


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