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Hanna v. State

Court of Appeals of Missouri, Southern District, First Division

October 29, 2019

SHAWN C. HANNA, Movant-Appellant/Cross-Respondent,
v.
STATE OF MISSOURI, Respondent-Respondent/Cross-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY Honorable William E. Hickle, Special Judge

          Nancy Steffen Rahmeyer, J.

         The motion court granted in part Shawn C. Hanna's ("Movant's") Rule 29.15[1]post-conviction relief following an evidentiary hearing. The State appeals that partial grant of relief and Movant cross-appeals the denial of relief on other grounds. We affirm the partial grant of relief. Because of that affirmance and the relief granted of a new trial, we do not address Movant's other claims of error.

         Movant was convicted of killing his father, Ralph Hanna.[2] In its Findings of Fact, Conclusions of Law, and Judgment, the motion court noted that this case was tried to a jury three times -- the first and second trial ended in a hung jury. In the point relevant to this decision, Movant claimed that his trial attorneys were ineffective for not interviewing, investigating, subpoenaing, and calling Nadia Black to testify. After noting the standard it used to ascertain whether counsel was effective, the motion court correctly noted that Missouri courts require Movant to show: "(1) the witness could have been located through reasonable investigation; (2) the witness would have testified if called; and (3) the testimony would have provided a viable defense." Williams v. State, 8 S.W.3d 217, 219 (Mo.App. E.D. 1999).

         The motion court found the following with regard to Ms. Black:[3]

[S]he lived due south of the Hanna residence at the time of Ralph Hanna's death, directly across Highway N. The morning of November 16, 2003, she was in her bed reading a book. She heard a loud shot fired at 8:30 a.m. She immediately looked at her clock and it said 8:30. She either heard one or two shots, testifying, "So I wasn't sure if I heard one or two very close together. I think just one because the first one seemed louder, but I'm not positive." The sound of the shot came from the north. She testified, "I just thought well, somebody is off hunting to the north, but I thought they're awfully close because it was very loud." She lived on ten acres with road frontage to Highway N, directly across the highway from the Hanna home. Upon hearing the shot, she testified, "I chirped up and am thinking that's across the street, that's from the north. And it was extremely loud."
Ms. Black was questioned repeatedly in her deposition concerning the time that she heard the shot, and she answered as follows:
"I remember looking immediately at my clock, and it said 8:30. It could have been 25 after or 35 after, but 8:30 is what I saw on my clock."
"It was a little round Westclock beige colored . . . [t]o my left on the night table. . . . But I looked immediately, and it was set on 8:30. As I say, it was a mechanical clock, not electric, so it could have been 25 after, 35 after, but it was 8:30."
["]Q. Is it possible that it could have been sooner than 8:30? A. I don't think so. My clocks were rarely ever wrong."
"I'm not - can't be possible positive that it was exactly 8:30 it could have been a couple minutes either way."
"I'm certain it was 8:30. But being absolutely honest and knowing a lot of mechanical scientific things, it wasn't an anatomic [sic] clock. It wasn't precise. It could have been a minute or two off and still said 8:30."
Ms. Black testified after the shooting incident involving Mr. Ralph Hanna, two law enforcement officers came to interview her. Ms. Black told police she heard one shot and an echo or two or three shots very close together. Ms. Black told police the shot was coming from the north. When asked whether she was ever contacted by Movant[']s trial attorneys, she answered,
No, I never was. The only people who ever contacted me regarding this were the two officers who came I don't know if it was that day, probably the next day. And I don't remember if they were county or state. But they were the only ones who ever contacted me.
Ms. Black still lived in the same house at the time of Movant's 2010 jury trial. Ms. Black would have been willing and able to testify at Movant's trial had she been contacted.
At the postconviction relief hearing, Ms. Anthony [(one of Movant's trial attorneys)] testified she recalled Ms. Black told police she heard a shot at 8:30 a.m. Ms. Anthony's recollection was Ms. Black was not confident of her timing. Ms. Anthony agreed that Ms. Black gave a different time than Mr. Fann testified to at trial. Ms. Anthony acknowledged the timeline was very important to Movant's defense at trial. Ms. Anthony testified the State had inconsistent timelines from other witnesses as well in the case. She asserted that she had never talked to Ms. Black, but that her investigator had talked to Ms. Black. Ms. Anthony's recollection is that Ms. Black was not confident about the time that she heard the shot. Ms. Anthony testified that she asked her investigator to gather some facts about Ms. Black's statement and that she considered those facts that the investigator gathered and reported to her.

         The motion court noted the contradictions in Ms. Anthony's testimony at the evidentiary hearing with statements made by Ms. Anthony on the record to the trial court on December 17, 2010, hours after the jury returned its guilty verdict:

MS. ANTHONY: Obviously last night I did a lot of soul searching and thinking about my performance in the case . . . During the pendency of [Movant's] case, my office had no investigator. We were the only office in the entire state that had no investigator when this case started. I then got a part-time investigator who I was not allowed, under the state rules, to have to work overtime. I failed to request special funds for an investigator on this case. My part-time investigator made multiple trips to Poplar Bluff to investigate this case, but the reality is the attorneys in the case ended up doing a lot of the leg work, or trying to do the leg work, in addition to handling their cases because, by the time a part-time investigator drove to Poplar Bluff, his time was gone.
Additionally, I cannot find any place in the file where anyone talked to Nadia Black who was a witness that the police officers spoke to, who said that she heard the shots at 8:30. I think the timeline is critical. I didn't get the case until 2007, but that is no excuse for me. I should know and be able to tell this Court whether or not Nadia Black is even alive. And if she would have been unavailable, and therefore her hearsay statements would have been admissible, and that is a failure on my part.

         The motion court found credible the statements made by Ms. Anthony on December 17, 2010, and further found the statements at the evidentiary hearing lacked credibility:

Hours after the jury verdict, at the time that the trial was fresh on her mind, Ms. Anthony stated clearly as an officer of the court that she simply failed to investigate Ms. Black as a potential witness and did not even know whether Ms. Black was even alive. Her recollection more tha[n] five years later at the time of the April 29, 2016 postconviction relief hearing that she had talked to her ...

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