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Hosier v. State

Supreme Court of Missouri, En Banc

December 10, 2019

DAVID R. HOSIER, Appellant,
v.
STATE OF MISSOURI, Respondent.

          APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Patricia S. Joyce, Judge.

          Paul C. Wilson, Judge.

         David Hosier ("Hosier") was found guilty of murder in the first degree, armed criminal action, burglary in the first degree, and unlawful possession of a firearm by a felon. After the jury unanimously recommended a death sentence on the murder charge, the trial court sentenced Hosier to death and imposed two additional 15-year sentences and a seven-year sentence on the armed criminal action, burglary, and unlawful possession charges, respectively. This Court affirmed Hosier's convictions on direct appeal. State v. Hosier, 454 S.W.3d 883, 900 (Mo. banc 2015).

         Hosier timely moved for postconviction relief under Rule 29.15. Following an evidentiary hearing, the motion court denied relief. Hosier appeals, and this Court has jurisdiction. Mo. Const. art. V, sec. 10; see also Standing Order, June 16, 1988 (effective July 1, 1988). The judgment of the motion court is affirmed.

         Background

         Hosier had an affair with Angela Gilpin ("Victim") while Victim was married to her husband, Rodney Gilpin. The affair ended, and Victim reconciled with her husband in August 2009. In September 2009, Hosier broke into Victim's apartment and shot and killed Victim and her husband. At the time Victim was killed, her purse contained an application for a protective order against Hosier, service information indicating she knew Hosier had a prior criminal record and possessed several firearms, and a third document stating she was afraid Hosier might shoot her and her husband.

         After killing Victim and her husband, Hosier fled to Oklahoma, where he was taken into custody by local law enforcement. Police recovered from Hosier's vehicle 15 firearms, numerous forms of ammunition, a bulletproof vest, a crowbar, latex gloves, a homemade police baton, and a knife. All of the firearms found inside the vehicle were loaded except for a STEN submachine gun, which was determined to be the murder weapon. Upon his arrest, Hosier said something to the effect of "shoot me, and get it over with" or "end it" to police numerous times. In the front seat of Hosier's vehicle was a note stating, "If you are going with someone do not lie to them .... Be honest with them if there is something wrong. If you do not this could happen to you. People do not like being f* * * * * with, and after so much s* * * they can go off the deep end." Police also found a notepad containing a written description of Victim's vehicle and its license plate. In the hours leading up to the killings, Hosier called and left several voicemail messages for a woman who knew both him and Victim. In one of these inculpatory messages, Hosier threatened Victim and stated, "I'm gonna ... finish it .... You don't believe me. I'm tired of the s * * *."

         Hosier was indicted in the Cole County circuit court. In the guilt phase, the jury found Hosier guilty of murder in the first degree, armed criminal action, burglary in the first degree, and unlawful possession of a firearm by a felon. In the penalty phase, the state presented evidence of two statutory aggravating circumstances: (1) Hosier had a serious assaultive conviction in that he was convicted of a battery in Indiana during which he beat a former girlfriend about the face while she was handcuffed; and (2) the murder was committed while Hosier engaged in the commission of another unlawful homicide, i.e., killing Victim's husband. § 565.032.2(1)-(2).[1] Hosier presented evidence of three statutory mitigating circumstances: (1) the murder was committed while Hosier was under the influence of extreme mental or emotional disturbance; (2) the capacity of Hosier to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was substantially impaired; and (3) the age of Hosier at the time of the offense. § 565.032.3(2), (6)-(7). The jury unanimously found the existence of both statutory aggravating circumstances and unanimously recommended the death penalty. The court sentenced Hosier to death for murder and imposed two 15-year sentences and a seven-year sentence for the armed criminal action, burglary, and unlawful possession charges.

         After this Court affirmed Hosier's conviction and sentence on direct appeal, Hosier, 454 S.W.3d at 900, Hosier timely filed for postconviction relief under Rule 29.15. An evidentiary hearing was held in the Cole County circuit court. The Honorable Patricia Joyce, who presided over Hosier's trial, was the motion court judge. The motion court denied Hosier relief.

         Analysis

         "This Court reviews a post-conviction relief motion for whether the motion court's findings of fact and conclusions of law are clearly erroneous." Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009); accord Rule 29.15(k). "A judgment is clearly erroneous when there is a definite and firm impression that a mistake has been made after reviewing the entire record." Forrest, 290 S.W.3d at 708 (quotation marks omitted). "This Court defers to the motion court's superior opportunity to judge the credibility of witnesses." Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016) (quotation marks omitted).

         I. Ineffective Assistance of Counsel

         Hosier asserts eight points of error relating to his claims that both trial and appellate counsel were ineffective. To be entitled to postconviction relief on a claim of ineffective assistance of counsel, a movant must show by a preponderance of the evidence that: "(1) his trial counsel failed to exercise the level of skill and diligence that a reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure." Id. at 905 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). If either requirement is not met, a claim of ineffective assistance of counsel must fail. State v. Clay, 975 S.W.2d 121, 135 (Mo. banc 1998).

         A "[m]ovant must overcome the strong presumption that trial counsel's conduct was reasonable and effective." Davis, 486 S.W.3d at 906. "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." Id. (quotation marks omitted). "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 v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). "Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable." Id. (quotation marks and alterations omitted). "It is not ineffective assistance of counsel to pursue one reasonable trial strategy to the exclusion of another reasonable trial strategy." Id.

         "Prejudice occurs when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Davis, 486 S.W.3d at 906 (quotation marks omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Deck v. State, 68 S.W.3d 418, 426 (Mo. banc 2002) (quotation marks omitted). In the penalty phase of a capital murder case, prejudice 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." Davis, 486 S.W.3d at 906 (quotation marks omitted).

         A. Unlawful Possession of a Firearm by a Felon Count

         Hosier asserts three points of error relating to his conviction on the charge of unlawful possession of a firearm by a felon. This charge was predicated on Hosier's 1993 felony conviction in Indiana for battery. There, Hosier's former girlfriend, Nancy Marshall, had asked Hosier to move out of her house and had obtained an order of protection against Hosier. This order was rescinded, however, and Marshall allowed Hosier to continue to stay in her home. Subsequently, Hosier grabbed Marshall, took her to the basement, handcuffed her, and beat her until she lost consciousness. Marshall was taken to the hospital with a concussion and bruises on her face. Hosier was charged with, and pleaded guilty to, the felony of battery and was sentenced to eight years' imprisonment. The court's judgment stated, "[Hosier] is remanded to the custody of the sheriff. [Hosier] is given 36 days jail time-good time credit. Court recommends [Hosier] be given psychiatric treatment."

         Before trial in his Missouri case, Marshall was listed on the witness list and she testified during the penalty phase. She did not testify, however, during the guilt phase. Because defense counsel chose not to stipulate to the fact that Hosier had been convicted of felony battery in Indiana in 1993, a copy of the judgment and related documents were received in evidence and shown to the jury. These documents showed the circumstances surrounding the conviction, as well as the court's recommendation that Hosier receive psychiatric treatment.

         1. Failure to Stipulate to the Prior Felony Conviction

         Hosier argues trial counsel was ineffective for failing to stipulate to the prior felony conviction, which - under Old Chief v. United States, 519 U.S. 172 (1997) - would have prevented the jury from hearing the name and surrounding circumstances of the conviction underlying the felon-in-possession charge during the guilt phase of the trial. The state was willing to stipulate to the 1993 Indiana felony, but defense counsel declined to do so. As a result, the state was allowed to introduce during the guilt phase documents showing both the fact of the 1993 conviction and the circumstances surrounding that conviction. Hosier argues this evidence was highly prejudicial because the facts underlying that conviction involved a violent assault of a former romantic partner and Hosier was on trial for murdering another former romantic partner. Hosier asserts there was no strategic reason for counsel not to stipulate to the 1993 felony conviction and every reason to do so in order to keep this information from the jury during the guilt phase as required by Old Chief.

         At trial, Hosier was represented by Counsel Don Catlett, who previously had tried nine capital cases as a criminal defense attorney, and Counsel Janice Zembles, who had worked as the District Defender in the capital trial office of the Missouri Public Defender for 13 years. At the evidentiary hearing, Counsel Zembles testified that, although the prosecutor was willing to stipulate to the prior felony conviction, she did not enter into a stipulation because she did not want the jury to be surprised about the facts of the 1993 conviction when it inevitably learned of them during the penalty phase. Counsel Zembles testified that, in her experience, jurors in death penalty cases responded negatively to information introduced during the penalty phase that they believe had been withheld from them during the guilt phase. Counsel Zembles believed Marshall would testify at the penalty phase because her name was on the witness list and was in a position to offer relevant and admissible evidence concerning the 1993 conviction. On balance, Counsel Zembles believed the mitigating nature of the language in the 1993 judgment recommending psychiatric treatment outweighed any prejudice that would ensue from the state offering that judgment into evidence.

         The motion court found defense counsel's decision not to stipulate to the fact of the 1993 Indiana conviction in the guilt phase to preclude angering the jury in the penalty phase when it inevitably learned of the circumstances surrounding that conviction was a reasonable trial strategy. This finding is not clearly erroneous.[2]

         Counsel Zembles reasonably believed that there would likely be a penalty phase of the trial - i.e., she believed Hosier likely would be found guilty of first-degree murder - and that Marshall would testify about the circumstances surrounding the 1993 Indiana conviction during that penalty phase. Her experience with juries learning in a penalty phase facts that they believed had been withheld from them in the guilt phase informed her strategic decision to get the facts surrounding the 1993 Indiana conviction out sooner rather than later. This was a reasonable trial strategy for defense counsel to make in light of the facts and circumstances as they appeared to her at the time this decision was made.

         Hosier contends Old Chief stands for the proposition that defense counsel must stipulate to a prior conviction whenever possible; therefore, the motion court erred as a matter of law. This is incorrect. Old Chief held a trial court abuses its discretion by not accepting a defendant's offer to stipulate to the fact of a prior conviction when the name and nature of the conviction raises the risk of unfair prejudice. Old Chief, 519 U.S. at 174. But nowhere does this case, or any other, impose a duty on a criminal defendant's counsel to stipulate to a past felony notwithstanding defense counsel's reasonable trial strategy to the contrary. Similarly, nothing in MAI-CR 3d 331.28, which adopted the reasoning of Old Chief, imposes such a duty. Instead, MAI-CR 3d 331.28 states, in the context of a charge for felon in possession of a firearm: "If the defense is willing to stipulate that the defendant has a prior felony conviction, the conviction should not be named." [Emphasis added.] Accordingly, under Old Chief and MAI-CR 3d 331.28, whether defense counsel stipulates to a prior conviction is a matter of trial strategy.

         Even if Hosier had been able to show that defense counsel's performance was constitutionally defective for failing to stipulate to the 1993 Indiana felony, his ineffective assistance claim would fail, nevertheless, because Hosier failed to show any prejudice resulted. Hosier argues the evidence relating to the prior felony conviction allowed the jury to make an improper inference that he had a propensity for violence such as that which resulted in Victim's death. He argues allowing the jury to hear this evidence was especially damaging because the case against him rested entirely on circumstantial evidence. These arguments fail for two reasons. First, the Court is not convinced - based on nothing other than Hosier's speculation - that the jury made an improper use of evidence concerning the 1993 conviction (i.e., propensity) rather than a proper use of that evidence. Second, the Court is not convinced the trial record supports a reasonable likelihood that the jury would not have found Hosier guilty of first-degree murder if they had heard only that Hosier had been convicted previously of an unspecified and unexplained felony. Instead, the record shows the jury's guilty verdict was supported by a wide range of inculpatory evidence, including evidence regarding Hosier's past relationship with Victim, Victim's fear that Hosier might kill or harm her and her husband, Victim's application for an order of protection against Hosier based on those fears, Hosier's flight shortly after the killings, Hosier's many inculpatory statements (including a note explaining his motive found in his vehicle), and the arsenal of weapons (including one determined to be the murder weapon) found in his possession at the time he was arrested. Extracting from this considerable array of evidence the circumstances surrounding Hosier's 1993 Indiana conviction falls well short of creating a reasonable probability that he would not have been found guilty on the first-degree murder charge.

         2. Failure to File a Written Motion to Sever the Unlawful Possession of a Firearm by a Felon Count

         Hosier argues trial counsel was ineffective for failing to make a proper motion to sever the felon-in-possession charge prior to trial. Trial counsel made an oral motion to sever but failed to file a written motion as required by Rule 24.07(a). The trial court overruled the oral motion to sever.

         At the evidentiary hearing on Hosier's motion for postconviction relief, Counsel Catlett testified he was unaware he was required to file a written motion for severance, and both he and and Counsel Zembles testified they had no strategic reason for failing to file a written motion to sever. Nevertheless, Counsel Catlett admitted he knew Hosier - as a prior offender - was not entitled to severance under section 565.004.3, which allows for a prior offender in a first-degree murder case to be tried for multiple offenses that are lawfully joined.

         The motion court found counsel was not ineffective for failing to file a written motion on the ground that there was no prejudice because, sitting as the trial court judge, she would have overruled a written motion had such a motion been filed. This finding is not clearly erroneous.

         There is no question motions to sever must be made in writing. Rule 24.07 provides:

When a defendant is charged with more than one offense in the same indictment or information, the offenses shall be tried jointly unless the court orders an offense to be tried separately. An offense shall be ordered to be tried separately only if: (a) A party files a written motion requesting a separate trial of the offense; (b) A party makes a particularized showing of substantial prejudice if the offense is not tried separately; and (c) The court finds the existence of a bias or discrimination against the party that requires a separate trial of the offense.

         Even a written motion to sever is not a matter of right in all cases. Instead, severance is a matter committed to the sound discretion of the trial court. State v. McKinney, 314 S.W.3d 339, 342 (Mo. banc 2010). In addition, when a defendant faces trial on multiple charges including a first-degree murder charge, section 565.004.3 provides in relevant part:

When a defendant has been charged and proven before trial to be a prior offender pursuant to chapter 558 so that the judge shall assess punishment and not a jury for an offense other than murder in the first degree, that offense may be tried and submitted to the trier together with ...

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