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Campbell v. State

Court of Appeals of Missouri, Southern District, Second Division

January 14, 2020

ROBERT L. CAMPBELL, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Gayle Crane

          DON E. BURRELL, JUDGE

         Robert L. Campbell ("Movant") appeals the motion court's denial, after an evidentiary hearing, of Movant's amended Rule 29.15[1] motion for post-conviction relief ("the motion"). A jury found Movant guilty of two counts of second-degree murder and assessed punishment at life imprisonment on each count.[2] See section 565.021.[3] In two points on appeal, Movant claims the motion court clearly erred in denying the motion because trial counsel was ineffective for requesting and submitting lesser-included offense instructions to the jury. Finding no merit in that claim, we affirm.

         Standard of Review

Appellate review of a motion for post-conviction relief is "limited to a determination of whether the motion court's findings and conclusions are clearly erroneous." Eastburn v. State, 400 S.W.3d 770, 773 (Mo. banc 2013) (citation omitted); Rule 24.035(k). "Findings and conclusions are clearly erroneous if, after reviewing the entire record, this Court is left with the definite and firm impression that a mistake has been made." Eastburn at 773, (citation omitted). The movant must show by a preponderance of the evidence the motion court clearly erred. Harrison v. State, 531 S.W.3d 611, 616 (Mo. App. 2017) (citation omitted).
. . . .
To be entitled to post-conviction relief for ineffective assistance of counsel ["IAC"], [Movant]'s claim must prove "by a preponderance of the evidence that (1) trial counsel failed to exercise the level of skill and diligence that reasonably competent counsel would exercise in a similar situation and (2) the movant was prejudiced by that failure." Dorsey v. State, 448 S.W.3d 276, 287 (Mo. banc 2014) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "If a movant fails to satisfy either prong of the [Strickland] test, he or she is not entitled to post-conviction relief." Creighton v. State, 520 S.W.3d 416, 422 (Mo. banc 2017) (citation omitted).

McClure v. State, 543 S.W.3d 54, 56 (Mo. App. W.D. 2018).

         The motion court's judgment is presumed correct, and Movant has the burden of demonstrating reversible error. McLaughlin v. State, 378 S.W.3d 328, 336-37 (Mo. banc 2012).

         The Evidence

         Movant, age 72, was charged with two counts of first-degree murder for ordering the killing of his nephew, Russell Porter ("Russell"), and Russell's wife, Rebecca Porter ("Rebecca").[4] The State charged that Movant, "acting with one or more persons," caused the Porters' deaths on April 18, 2011, "by offering consideration to one or more persons to kill" them. The State's theory of the case was that Defendant contracted with his brother-in-law, Tony Friend, to kill the Porters while Defendant was out of town driving a truck, which would provide Defendant with an alibi. The plan was to have the Porters kidnapped and killed outside of their home on the theory that "if there's no body, there's no crime."

         Russell was the son of Defendant's sister. Russell and Defendant had recently been granted mutual orders of protection against each other.[5] The State alleged that there was "[b]ad blood" between the two men because Defendant believed that Russell was lazy and he and Rebecca were living on the Campbell family farm where Defendant had been raised despite Russell never having done anything to help with the farm. There had been heated altercations between the two men leading up to the Porters' deaths, including an incident in which Russell charged at Defendant with a 20-foot long pipe, and Russell had used a board with nails in it to demarcate property lines.

         Approximately three weeks after the orders of protection were granted, late in the evening on April 18, 2011, police responded to the Porters' home when Rebecca's daughter reported being concerned about not having heard from her. Defendant was driving a truck in Texas at that time. Upon entering the Porters' home, police found that a screen over the kitchen window had been cut, bleach had been poured on the kitchen and dining room floors, the bedding had been removed from the bed, the mattress was askew on its box springs, and the Porters were not there.

         The Porters' bodies were eventually found in July 2011 in a remote area of Taney County. Both had been shot in the head. Phillip Friend ("Phillip"), the son of Tony Friend ("Tony"), testified that he was his father's "right hand man" in crime. At his father's behest, Phillip, along with a group of people that included his father, planned to kidnap the Porters from their home. The plan was formulated during the course of two meetings that took place in Tony's apartment. At first, the plan was to kidnap the Porters and "take them to birthdays[, ]" meaning to kill them. The plan was allegedly changed to just kidnapping the Porters and scaring them into moving, but Phillip doubted that it was just a scare tactic. The kidnapping had to occur before the 19th of April because Defendant was returning from the road that day. Phillip said the plan involved "[m]urder and $100, 000." Phillip and the others kidnapped the Porters from their home, drove them to a remote location approximately two hours away, where Tony then walked the Porters into the woods and shot them.

         Defendant's cellmate testified that Defendant confessed to him after "prayer circle" "that he hired his brother-in-law [Tony] to kill his sister's boy" while Defendant was out of state driving a truck. Defendant's son testified that the dispute between his father and Russell had escalated to the point that Defendant said that Russell's "days are numbered[.]" Defendant also told his daughter, while she was wearing a wire for the police, that Russell "was a pain in the ass[, ]" and had been "snitching" on them "all the time." Defendant said "[a]ll of us had a reason to do it[.]" Phillip also testified that Defendant approached him while they were both in jail and told him that he would "take care of" whoever was putting Defendant's name out there as having been involved in the murder of the Porters.

         Trial counsel requested and submitted lesser-included offenses on both counts for second-degree murder, second-degree felony murder predicated upon felonious restraint, voluntary manslaughter, first-degree involuntary manslaughter, and second-degree involuntary manslaughter. The jury returned guilty verdicts of murder in the second degree, based upon felony murder, on each count.[6] Movant claims that trial counsel was ineffective for requesting and offering instructions on the lesser-included offenses, including felony murder, and that "[h]ad ...


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