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Jones v. State

Court of Appeals of Missouri, Eastern District, Second Division

December 31, 2019

CORNELIOUS A. JONES, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of the City of St. Louis Honorable Elizabeth B. Hogan

          KURT S. ODENWALD, JUDGE

         Introduction

         Cornelious A. Jones ("Jones") appeals the motion court's denial of his Rule 29.15[1]motion for post-conviction relief. The trial court convicted Jones of robbery in the first degree under Section 569.020[2] following a bench trial and sentenced him to eighteen years in prison. In his first point on appeal, Jones asserts that his trial counsel was ineffective for pursuing as his sole defense a legal theory foreclosed by judicial precedent and that Jones was prejudiced as a result. Specifically, Jones contends that trial counsel incorrectly argued that evidence of Jones having his hand in his pocket during the robbery was legally insufficient to convict Jones of robbery in the first degree, contrary to controlling Missouri precedent upholding convictions based on comparable evidence. Jones further argues that he would have reached a more favorable plea agreement but for trial counsel's erroneous legal conclusion. In his second point on appeal, Jones similarly alleges that his trial counsel was ineffective by not attempting to negotiate a plea given the facts of this case. Jones asserts that he was prejudiced as a result in that there is a reasonable probability he would have reached a plea agreement leading to a more favorable sentence than the eighteen-year sentence he received following trial. Because trial counsel employed a reasonable defense strategy which was not foreclosed by judicial precedent, the motion court did not commit clear error. Accordingly, we affirm the judgment of the motion court.

         Factual and Procedural History

         In March 2013, Jones entered a Subway restaurant and ordered a sandwich. The only employee ("Employee") in the restaurant took Jones's order. Once he reached the register, Employee went to the back of the restaurant and the owner-manager ("Owner") came from the back to complete the transaction. At this point, Jones announced that he was robbing the restaurant. Jones stated that he did not want to hurt anyone. Jones had his right hand in his pocket, where he kept it for the duration of the robbery. Jones did not display a gun or say that he had a gun. Owner gave Jones the money in the register. Before leaving the restaurant, Jones also demanded the sandwich he had ordered-which Owner gave him. Jones then left. Owner saw Jones drive away in a green truck. Shortly thereafter, police apprehended Jones in a truck matching Owner's description. The police found the sandwich and an amount of money similar to the amount stolen in the truck. The police recovered no gun or other weapon. Employee and Owner identified Jones as the robber.

         The State charged Jones with robbery in the first degree. Jones told trial counsel that he wanted to reach a plea agreement with the State rather than go to trial. Jones said he would plead guilty to robbery in the second degree and accept ten years in prison. Trial counsel told Jones that the State unlikely would agree to such a plea deal given Jones's recent prior record of incarceration. The State never offered Jones a plea agreement. Trial counsel did not initiate plea negotiations with the State.

         After reviewing a video recording of the robbery, trial counsel advised Jones to take the case to trial as opposed to pleading guilty to robbery in the first degree. Trial counsel thought there was sufficient evidence to reasonably argue that Jones did not display or threaten the use of what appeared to be a deadly weapon or dangerous instrument, which the State had to prove as an element of robbery in the first degree. Trial counsel explained that the video recording did not show Jones "saying or motioning that [Jones had] a weapon" or "positioning [his] hand in [his] pocket to make it appear as if [Jones] did have a weapon[.]"

         The case proceeded to a bench trial. During its opening statement, the State said that Owner would testify that Jones was making a pointing gesture with his pocketed hand during the robbery. Trial counsel directly addressed this factual claim in his opening statement:

If [Owner] testifies today that Mr. Jones made a pointing motion in his pocket, that would be new testimony that has not been said prior to this date. [Detective] Betz took down the report and there is no mention in the police report from any witness that there was a pointing motion. In fact, all the witnesses say they thought there was a gun, or that there might have been a gun; ergo we believe the evidence will show that they assumed there was a gun, which is not enough under Missouri law. The State will have to prove beyond a reasonable doubt that there are some factual circumstances that lead to the reasonableness of believing that threat or displaying of a deadly weapon, and I don't believe they will be able to do that today.

         The State called Employee as its first witness. Over repeated objections by trial counsel, Employee testified that Jones was moving his hand around in his pocket, that it "[m]ay have seemed like it was a gun," and that she believed Jones had a gun.

         The State called Owner as its second witness. Owner testified that Jones was pointing with his hand in his pocket during the robbery. Owner also testified that he believed Jones had a gun in his pocket.

         Additionally, the State called Detective Michael Betz ("Detective Betz") as its third witness. Detective Betz had interviewed both Owner and Employee multiple times following the incident. On cross-examination, trial counsel elicited testimony from Detective Betz that neither Employee nor Owner ever indicated to him that Jones moved or made a pointing motion in his pocket during the robbery.

         In his closing argument, trial counsel argued that the evidence was legally insufficient to convict Jones of robbery in the first degree. Trial counsel argued that the evidence showed Jones engaged in no conduct from which Employee or Owner reasonably could believe that Jones was using or displaying a deadly weapon. Trial counsel specifically challenged the credibility of the witnesses' testimony that Jones had moved or made a pointing motion with his pocketed hand. ...


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