Bolden v. State
| Citation | 413 S.W.3d 658 |
| Decision Date | 26 November 2013 |
| Docket Number | No. WD 75563.,WD 75563. |
| Parties | Jeffrey L. BOLDEN, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
413 S.W.3d 658
Jeffrey L. BOLDEN, Appellant,
v.
STATE of Missouri, Respondent.
No. WD 75563.
Missouri Court of Appeals,
Western District.
Oct. 22, 2013.
Application for Transfer to Supreme Court Denied Nov. 26, 2013.
Gary E. Brotherton, Columbia, MO, for appellant.
Richard A. Starnes, Jefferson City, MO, for respondent.
Before Division Four: JAMES E. WELSH, Chief Judge, Presiding, CYNTHIA L. MARTIN, Judge and TERRY TSCHANNEN, Special Judge.
CYNTHIA L. MARTIN, Judge.
Jeffrey Bolden (“Bolden”) appeals from the motion court's judgment denying his
[413 S.W.3d 659]
Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Bolden contends that the motion court clearly erred in denying his motion because (1) trial counsel was ineffective in failing to move to dismiss the charge of second degree assault of emergency personnel, because hospital security officer Monte Ruby (“Ruby”) was not “emergency personnel” within the meaning of section 565.082.2; 1 and (2) appellate counsel was ineffective in failing to argue on appeal that there was insufficient evidence to support his conviction because the State failed to prove beyond a reasonable doubt that Ruby was “emergency personnel” within the meaning of section 565.082.2. Because we find that that Ruby was “emergency personnel” within the meaning of section 565.082.2, we affirm.
The facts are undisputed. On August 2, 2008, Springfield police responded to a call that Bolden had doused himself in gasoline. When the police arrived at the scene, Bolden fled. The police called in a canine unit to locate Bolden. While being apprehended, Bolden was bitten by the canine tracking unit and required medical attention.
An ambulance was called. Before Bolden was placed in the ambulance, his shorts were cut off and he was rinsed off with water to dilute the gasoline. At this point, Bolden was nude and restrained with handcuffs. Bolden refused to cover up with an offered sheet and instead attempted to masturbate. Bolden was eventually loaded into the ambulance, though he was calling out obscenities and struggling with the police and paramedics.
Bolden was taken to the Cox North emergency room. In route to the emergency room, the paramedics informed the hospital staff that Bolden was “very violent.” Security personnel, Ruby and Robert Wheatley (“Wheatley”), were waiting when Bolden arrived. While custody was being transferred from the paramedics to the hospital staff, Bolden was kicking and bucking off the hospital cot.
After he was transferred to the hospital staff, Bolden continued to resist, yelling and threatening the staff. Bolden “zeroed in” on Ruby and began making derogatory remarks to Ruby. Ruby did not respond. Bolden was restrained by handcuffs attached to the side rails on the hospital bed.
Doctors attempted to treat Bolden's dog bite, but he continued to resist. Bolden was prepared for transfer to Cox South hospital for surgery. While awaiting transfer, Ruby, Wheatley, Price (the acting major crime investigator for the Springfield police department), and two nurses stayed near Bolden's room. Bolden continued to verbally insult the staff and repeatedly kicked off his sheet, exposing himself to the female nurses and attempting to masturbate.
Ruby went into Bolden's room to cover Bolden. Ruby held Bolden's head down, with one cheek against a pillow. Ruby instructed Bolden to calm down. Bolden told Ruby to get his hands off him and to quit choking him. Ruby let go of Bolden's head and turned to walk away. Bolden twisted his lower torso and kicked Ruby in the back of the head. Ruby stumbled forward and caught himself. Ruby steadied himself and assisted Price, Wheatley, and another security officer in holding Bolden down until leg restraints could be applied. After Bolden had been restrained, Ruby began to exit the room and his knees buckled. Nurses caught Ruby
[413 S.W.3d 660]
and put him on a stretcher. Subsequent tests revealed massive, inoperable bleeding in the brain, which ultimately resulted in Ruby's death.
Bolden was charged as a persistent offender with alternative counts of second degree murder, second degree felony murder, and assault on a law enforcement officer or emergency personnel.2 The case was filed in the Circuit Court of Greene County. On Bolden's motion, a change of venue to the Circuit Court of Boone County was granted.
After a jury trial, Bolden was found guilty of second degree felony murder and of the predicate felony of assault of emergency personnel. Bolden was sentenced to concurrent sentences of life in prison for felony murder and seven years for the assault. Bolden filed a motion for new trial which was denied by the trial court. Bolden's convictions and sentences were affirmed on direct appeal in State v. Bolden, 330 S.W.3d 868 (Mo.App. W.D.2011).
Bolden timely filed his pro se Rule 29.15 motion. Appointed counsel timely filed an amended motion. The motion court denied the amended Rule 29.15 motion after an evidentiary hearing. Bolden filed a motion to reconsider which was denied. Bolden appeals.
“Our review of the denial of [Bolden's] Rule 29.15 motion is ‘limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.’ ” Clay v. State, 310 S.W.3d 733, 735 (Mo.App. W.D.2010) (quoting Rule 29.15(k)). “ ‘The motion court's findings and conclusions are clearly erroneous if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made.’ ” Id. (quoting Peterson v. State, 149 S.W.3d 583, 585 (Mo.App. W.D.2004)).
Bolden raises two points on appeal. First, Bolden claims that the motion court clearly erred in denying his Rule 29.15 motion because his trial counsel was ineffective in failing to move to dismiss the charge of second degree assault of emergency personnel because Ruby was not “emergency personnel” within the meaning of section 565.082.2. Bolden claims “emergency personnel” must be medical personnel. Second, Bolden claims that the motion court clearly erred in denying his Rule 29.15 motion because his appellate counsel was ineffective in failing to argue on appeal that there was insufficient evidence to support his conviction because the State failed to prove beyond a reasonable doubt that Ruby was “emergency personnel” within the meaning of section 565.082.2. We address these points together as both depend for their resolution on whether Ruby was “emergency personnel” within the meaning of section 565.082.2.
To establish ineffective assistance of counsel, Bolden must prove by a preponderance of the evidence: “(1) that counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney; and (2) that [Bolden] was thereby prejudiced.” Haskett v. State, 152 S.W.3d 906, 909 (Mo.App. W.D.2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). If Bolden fails to demonstrate either prong of the
[413 S.W.3d 661]
Strickland test, his post-conviction motion will be denied. Id.3
To establish the performance prong, Bolden bears a heavy burden “and must overcome a strong presumption that [his] counsel provided competent assistance.” Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002). Bolden must demonstrate “ ‘that counsel's representation fell below an objective standard of reasonableness.’ ” Id. at 426 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). To establish prejudice, Bolden must show that there is a reasonable probability that but for his trial counsel's ineffectiveness, the result would have been different. Patterson v. State, 110 S.W.3d 896, 900 (Mo.App. W.D.2003). “When reviewing a claim of ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted on appeal and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it.” Hall v. State, 16 S.W.3d 582, 587 (Mo. banc 2000).
Bolden was convicted of the class C felony of assault on emergency personnel in the second degree pursuant to...
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