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Cato v. State

Court of Appeals of Missouri, Eastern District, Second Division

August 13, 2019

RALPH H. CATO, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of the City of St. Louis Honorable Paula P. Bryant

          Philip M. Hess, Presiding Judge.

         Introduction

         Ralph Cato (Movant) appeals the motion court's judgment denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing.[1] He contends the motion court clearly erred in denying his claim of ineffective assistance of counsel because defense counsel failed to make an offer of proof regarding the victim's alleged gang membership and marijuana dealing. We affirm.

         Background

         In November 2014, a jury convicted Movant of murder in the first degree, two counts of assault in the first degree, and three counts of armed criminal action stemming from a 2013 shooting in the City of St. Louis. The evidence viewed in the light most favorable to the judgment shows the following:[2]

         In May or June 2013, Movant became reacquainted with his former classmates and victims, Charles Moorehead (Decedent) and Johnathon Robinson. Mr. Robinson sold marijuana to Movant. They had a verbal dispute over a marijuana sale. Later, in early July 2013, Movant saw Robinson and Decedent at a gas station. Movant got into a fist fight with Robinson resulting in minor injuries. Movant then told Robinson he would get a "chopper," which Robinson testified meant a pistol.

         On July 16, 2013, Robinson was at Decedent's home. Decedent showed Robinson a photo Movant had posted to Facebook of himself with a gun in his waistband. Robinson took the photo as a threat. Later in the day, Robinson, Decedent, and Decedent's cousin Kenyatia Eddy were sitting on the front porch. A man with a gun, later identified as Movant, came out of the alley and shot multiple times injuring Robinson and killing Decedent. Eddy escaped the gun fire. Both Robinson and Eddy identified Movant as the shooter.

         At trial, Decedent's mother Dana Dodson testified July 16th was her son's first day off from his new job as a lifeguard and when she arrived on the scene:

It looked like he was asleep. And I knew then while they say they was waitin' on the ambulance, I knew in my heart that he was gone. I just couldn't understand what brought that on. I mean, I was just talkin' to him. He never been in no trouble. He never had a record. He hadn't been fingerprinted at all other than a Metrolink stop that happened when he was in the ninth grade. He never been in trouble. He never been a problem to me or my family.

         Defense counsel Matt Waltz believed Dodson's testimony opened the door to evidence of Decedent's character.[3] He gave a verbal narrative to the court about evidence that would show Decedent had a "gang life" tattoo, possessed marijuana that day, and was dealing marijuana at the time of his death. The court found Dodson's testimony did not open the door. Decedent's character evidence was excluded.

         The jury convicted Movant on all six counts. On January 7, 2015, he was sentenced to life without parole on Count I, murder in the first degree.[4] Movant appealed, claiming the trial court abused its discretion in overruling objections (1) to a photo of Movant with a gun admitted into evidence and (2) to the State's closing argument that Movant sought out the two victims. This Court affirmed the judgment and sentence on April 20, 2016.

         Movant timely filed his pro se motion for post-conviction relief under Rule 29.15 on July 11, 2016. The motion court appointed counsel for Movant on July 28, 2016. Then 152 days after counsel was appointed, counsel untimely filed the Amended Motion on December 27, 2016.

         At the evidentiary hearing on March 20, 2018, Waltz testified the defense strategy at trial was mistaken identification and alibi. He stated a partial defense could have been a disgruntled gang member or marijuana customer shot Decedent. Dodson testified her son was not in a gang and did not deal drugs. She also reported she was not on Facebook and did not know what was on Facebook about her son. The court found Movant's trial counsel was not ineffective for failing to make an adequate offer of proof regarding the character of the victim because it did not prejudice Movant and the ...


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