DAVID R. HOSIER, Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Patricia
S. Joyce, Judge.
C. Wilson, Judge.
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).
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.
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.
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 * * *."
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). 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.
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.
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
Ineffective Assistance of Counsel
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).
"[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
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).
Unlawful Possession of a Firearm by a Felon Count
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."
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
Failure to Stipulate to the Prior Felony Conviction
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.
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
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.
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.
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.
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.
Failure to File a Written Motion to Sever the Unlawful
Possession of a Firearm by a Felon Count
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.
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.
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.
is no question motions to sever must be made in writing. Rule
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.
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
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 ...