Brown v. State

• Decision Date: 18 December 2014
• Docket Number: No. SD 33042,SD 33042
• Court: Missouri Court of Appeals
• Parties: Bradley Lee Brown Jr., Movant–Appellant, v. State of Missouri, Respondent–Respondent.

450 S.W.3d 847

Bradley Lee Brown Jr., Movant–Appellant

v.State of Missouri, Respondent–Respondent.

No. SD 33042

Missouri Court of Appeals, Southern District, Division Two .

Filed: December 18, 2014

Kevin B. Gau, Hannibal, MO, Attorney for Appellant

Jennifer A. Rodewald, Jefferson City, MO, Attorney for Respondent

Opinion

Mary W. Sheffield, Presiding Judge

Bradley Lee Brown, Jr., (“Movant”) appeals from the motion court's denial of his rule 29.15¹ motion for post-conviction relief. Movant's post-conviction motion challenged his convictions for first-degree domestic assault and armed criminal action. See § 565.072, RSMo Cum.Supp. (2008), § 571.015, RSMo (2000). Movant asserts several claims of ineffective assistance of counsel. Movant failed to prove these claims at the evidentiary hearing, and we affirm the motion court's judgment.

Factual and Procedural Background

On March 8, 2008, Movant stabbed his then-girlfriend Nancy McCormick (“Victim”) 11 times. He was charged with first-degree domestic assault and armed criminal action. At his trial for the charges, Movant testified Victim was angry with him and while in a drug induced frenzy stabbed herself to get him in trouble. The jury rejected Movant's testimony, found Movant guilty, and Movant's convictions and sentences were affirmed on appeal. State v. Brown, 353 S.W.3d 412, 414 (Mo.App.S.D.2011).

Movant timely sought post-conviction relief. An amended motion was filed on Movant's behalf. The motion court denied Movant's claims after an evidentiary hearing, and Movant appeals the denial of his claims.

Standard of Review and Legal Principles Applicable to All Points

When granted an evidentiary hearing in a post-conviction case, the movant has the burden of proving his claims “by a preponderance of the evidence.” Rule 29.15(i). Appellate review of the motion court's decisions in such cases is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k); Morgan v. State, 319 S.W.3d 514, 517 (Mo.App.S.D.2010). “The findings of the motion court are presumptively valid.” Morgan, 319 S.W.3d at 517 (quoting Fry v. State, 244 S.W.3d 284, 285 (Mo.App.S.D.2008) ). Thus, “[t]he motion court's findings and conclusions are clearly erroneous ‘only if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made.’ ” Id. (quoting State v. Ervin, 835 S.W.2d 905, 928 (Mo. banc 1992) ).

To prevail on a claim that his trial counsel provided ineffective assistance, “a movant must show that: ‘(1) counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney[;]’ and (2) counsel's poor performance prejudiced the defense.” Id. at 518 (quoting State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998) ). Prejudice exists “when there is a ‘reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” Morgan, 319 S.W.3d at 518 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Additionally, “[s]hould a movant fail to satisfy either element, the appellate court on review need not consider the other.”

Craig v. State, 410 S.W.3d 728, 731 (Mo.App.W.D.2013) (quoting Slater v. State, 147 S.W.3d 97, 101 (Mo.App.W.D.2004) ).

Point I

In his first point, Movant claims the motion court clearly erred when it found Andrea Zimmerman (“trial counsel”), the attorney who represented Movant at trial, was not ineffective for failing to impeach the officer who initially responded to the scene of the stabbing with the officer's prior inconsistent statements and omissions which allegedly would have “implicated the quality of the police investigation, the legitimacy of his searches, and his believability.” This argument is without merit.

The following additional facts are relevant to the resolution of this claim. Officer Jason Hammontree of the City of Chaffee Police Department (“Officer Hammontree”) was the first police officer to arrive on the scene. He searched the residence for Movant and later assisted in the apprehension of Movant.

In his amended motion for post-conviction relief, Movant claimed trial counsel was ineffective for failing to impeach Officer Hammontree regarding the collection of Movant's clothes after his arrest and the search of Movant's residence. At the post-conviction evidentiary hearing, trial counsel testified that the defense theory of the case was to prove Victim was lying and that, instead of Movant stabbing Victim, “[Victim] stabbed herself[.]” In support of that theory, she called Movant and a pharmacologist. Trial counsel testified she did not cross-examine Officer Hammontree regarding how Movant's clothes were processed after Movant's arrest because under the defense theory of the case, Victim's blood would have still been on Movant's clothes. Trial counsel further explained she did not think there was much in Officer Hammontree's search of the residence that helped the defense theory since even under the Movant's theory there had been a struggle in the home. Trial counsel did not think Officer Hammontree's testimony “necessarily helped or hurt the case [.]” This evidence showed Movant failed to meet his burden of proving trial counsel was ineffective for failing to impeach Officer Hammontree. It was reasonable to limit the cross-examination of Officer Hammontree.

“Generally, the mere failure to impeach a witness does not entitle a movant to post-conviction relief.” Craig, 410 S.W.3d at 733 (quoting Borst v. State, 337 S.W.3d 95, 106 (Mo.App.W.D.2011) ). That is, “[t]o establish ineffective assistance for counsel's failure to impeach a witness, the movant must show that the impeachment of the witness would have provided the defendant a viable defense or otherwise changed the outcome of the trial.” Morgan, 319 S.W.3d at 518 (quoting Davidson v. State, 308 S.W.3d 311, 317 (Mo.App. E.D. 2010) ). Missouri courts have frequently found that trial counsel were not ineffective for failing to impeach witnesses with minor inconsistencies. See, e.g., Gray v. State, 139 S.W.3d 617, 623 (Mo.App.W.D.2004) ; State v. Brown, 867 S.W.2d 530, 536 (Mo.App.W.D.1993).

The trial court did not clearly err when it found trial counsel was not ineffective for failing to further impeach Officer Hammontree. Movant's first point is denied.

Point II

In his second point, Movant argues the motion court clearly erred in denying his claim that Alexa Pearson (“appellate counsel”), the attorney who represented Movant during his direct appeal, was ineffective for failing to raise a claim in Movant's direct appeal regarding the prosecution's expert witness. We disagree.

The following additional facts are relevant to the resolution of this claim. At trial, Movant testified Victim's wounds

were self-inflicted. To combat this testimony, the prosecution presented the testimony of Doctor William Silliman (“Dr. Silliman”). Dr. Silliman was the trauma surgeon who treated Victim on the night of the attack. Dr. Silliman described Victim's wounds. He stated that the deep cut on Victim's thumb seemed to be defensive in nature and that he had “never in [his] experience seen anyone injure themselves in this way.” Trial counsel objected to Dr. Silliman's testimony on this point, and the claim was preserved for appellate review, but appellate counsel did not raise the claim on direct appeal.

In his amended motion, Movant claimed appellate counsel was ineffective for failing to raise a claim on appeal regarding Dr. Silliman's expert qualifications to testify that Victim's wounds

were not self-inflicted. In the post-conviction case, Movant presented an affidavit from appellate counsel. Appellate counsel stated she did not raise a point on appeal regarding Dr. Silliman's qualifications to opine about the defensive nature of Victim's wounds because she did not believe the appellate court would find the argument persuasive.

For a movant to obtain relief on a claim that appellate counsel was ineffective, “strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it.” Richardson v. State, 386 S.W.3d 803, 806 (Mo.App.S.D.2012) (quoting Moss v. State, 10 S.W.3d 508, 514 (Mo. banc 2000) ). However, “[f]ailing to raise a nonmeritorious claim does not convict counsel of being ineffective.” Glover v. State, 225 S.W.3d 425, 429 (Mo. banc 2007) ; see also Trotter v. State, 443 S.W.3d 621, 626 (Mo.App.W.D.2014).

Dr. Silliman's Qualifications

Movant claims a point on direct appeal challenging Dr. Silliman's qualifications would have required reversal as Dr. Silliman was not qualified to state Victim's wounds

were defensive in nature because Dr. Silliman did not have formal training in forensic medicine. Movant is incorrect.

“In order to qualify as an expert, a witness must have knowledge or skill from education or experience that will aid the trier of fact.” State v. Blakey, 203 S.W.3d 806, 816 (Mo.App.S.D.2006). This knowledge or skill need not come from formal sources; “practical experience, rather than scientific study or formal training, may qualify a witness to testify as an expert.” State v. Futo, 932 S.W.2d 808, 820 (Mo.App.E.D.1996). “Expert testimony should be admitted if the witness possesses ‘some qualification.’ ” Blakey, 203 S.W.3d at 816. Beyond that, “[t]he extent of an expert's experience or training in a particular field goes to the weight, not the admissibility, of the testimony.” Id. (quoting State v. Partridge, 122 S.W.3d 606, 609 (Mo.App.E.D.2003) ).

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