Bryan v. State

• Citation: 134 S.W.3d 795
• Decision Date: 26 May 2004
• Docket Number: No. 25830.,25830.
• Parties: Scott E. BRYAN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Court of Appeal of Missouri (US)

134 S.W.3d 795

Scott E. BRYAN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

No. 25830.

Missouri Court of Appeals, Southern District, Division Two.

May 26, 2004.

Mark A. Grothoff, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

JEFFREY W. BATES, Judge.

After a jury trial, Scott E. Bryan ("Bryan") was convicted of two counts of kidnapping, one count of attempted forcible sodomy and three counts of assault in the second degree. He was sentenced to a total of 25 years imprisonment. In State v. Bryan, 60 S.W.3d 713 (Mo.App.2001), this Court affirmed the judgment of convictions and sentences in Bryan's direct appeal.¹ Thereafter, Bryan filed a timely motion for post-conviction relief pursuant to Rule 29.15.² Counsel was appointed to represent Bryan, and an amended motion was filed. The amended motion alleged that, for various reasons, Bryan was provided with ineffective assistance by his appellate and trial counsel. The amended motion was denied without an evidentiary hearing for reasons articulated in the trial court's required findings of fact and conclusions of law. See Rule 29.15(j).

Bryan has appealed, presenting two points for us to decide. In Point I, Bryan contends his appellate counsel provided ineffective assistance during the direct appeal by failing to challenge hearsay testimony given by a police officer. In Point II, Bryan contends his trial counsel provided ineffective assistance by failing to give Bryan adequate advice about his case, thereby causing him to reject a plea offer from the State. Bryan argues that the trial court erred in dismissing Bryan's Rule 29.15 motion without conducting an evidentiary hearing on these two claims. We affirm.

Standard of Review

Our review of the denial of a Rule 29.15 motion is "limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 29.15(k); State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996). Findings of fact and conclusions of law are clearly erroneous only when, after reviewing the entire record, this court is left with the definite and firm impression that a mistake has been made. State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996). The motion court's findings are presumptively correct. Crawford v. State, 105 S.W.3d 926, 927-28 (Mo.App.2003); Kates v. State, 79 S.W.3d 922, 924 (Mo.App.2002).

The real issue presented by Bryan's appeal is whether the trial court erred in refusing to grant him an evidentiary hearing on the above-described claims, not whether he is actually entitled to relief. See Masden v. State, 62 S.W.3d 661, 664-65 (Mo.App.2001). "To be entitled to an evidentiary hearing, a movant must: (1) allege facts, not conclusions, that, if true, would warrant relief; (2) these facts must raise matters not refuted by the record and files in the case; and (3) the matters complained of must have resulted in prejudice to the movant." Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003). Thus, if the files and records of the case conclusively show that Bryan is not entitled to any relief, no evidentiary hearing is required. Rule 29.15(h); State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997).

In State v. Bryan, supra, we set forth in detail the underlying facts which resulted in Bryan's aforementioned convictions. Therefore, in this opinion, we will recount only the facts relevant to the issues presented in this second appeal.

Discussion and Decision

Bryan's Rule 29.15 motion alleged ineffective assistance by his appellate and trial counsel. The burden of proving these claims rests on Bryan. Rule 29.15(i). To establish ineffective assistance of counsel, Bryan 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. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998). In order to establish prejudice, Bryan must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bryan must prove each portion of this two-pronged performance and prejudice test in order to prevail on his ineffective assistance of counsel claim:

A criminal defendant must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim. In reviewing such a claim, courts are not required to consider both prongs; if a defendant fails to satisfy one prong, the court need not consider the other. And, a court need not determine the performance component before examining for prejudice. If it is easier to dispose of the claim on the ground of lack of sufficient prejudice, the reviewing court is free to do so.

Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987) (italics in original). This brief review of the controlling law affords a proper backdrop against which to begin our consideration of the specific issues raised by Bryan's two points relied on.

Point I—Ineffective Assistance of Appellate Counsel

Bryan's first point asserts that his appellate counsel was ineffective for failing on direct appeal to challenge certain trial testimony given by a police officer. Bryan claims the officer's testimony was inadmissible hearsay. His contention is based on the following facts.

At trial, Bryan's two victims, William DeLong ("DeLong") and Phillip Smith ("Smith"), each testified that they were forced into Bryan's apartment against their will. While there, they were physically and sexually assaulted by Bryan and others for a number of hours. During the physical assaults, they were beaten with belts, hit with pool cues, threatened with a knife, sprayed on the buttocks with a large water cannon, threatened with what appeared to be a pistol, burned with hot candle wax and cigarettes, tortured by having a C-clamp tightened on their legs, beaten with fists, and kicked with steel-toed boots. During the sexual assaults, DeLong and Smith had K-Y jelly smeared on their ears, lips and rectums. Thereafter, Bryan placed his penis in or on those locations. He also pressed the water cannon against or into their rectums while spraying water from this device.

After DeLong and Smith testified, the State called Springfield Police Officer Brian Phillips ("Officer Phillips") as a witness. Officer Phillips interviewed Smith at the hospital shortly after he escaped from Bryan. Over the hearsay objection of Bryan's trial counsel, Officer Phillips was permitted to testify that, during the interview, he received the following information from Smith: (1) he had been forcibly taken into an apartment and assaulted physically and sexually for about five hours along with another young man; (2) the objects used to physically assault Smith included two belts, two pool cues, a knife, a large Super Soaker water cannon, a pistol, hot candle wax, a C-clamp, and steel-toed boots; and (3) the items used to sexually assault Smith included the Super Soaker water cannon and some K-Y lubricant. Officer Phillips relayed this information to other investigating officers, resulting in a warrant being issued to search Bryan's apartment. During the execution of this search warrant, every one of the objects mentioned in Officer Phillips' testimony was recovered.³

In Bryan's amended Rule 29.15 motion, he alleged that his appellate counsel was ineffective for failing to assert trial court error in overruling the hearsay objection to Officer Phillips' trial testimony. As noted, the trial court concluded that no evidentiary hearing was needed to address this purely legal issue. Relief was denied for two reasons: (1) Officer Phillips' testimony was not hearsay because it was offered to explain subsequent police conduct; and (2) even if the testimony was hearsay, there was no prejudice because "[t]he details of all the acts and the items used in the alleged acts had already been placed before the jury."

The standard for proving ineffective assistance of appellate counsel is a high one. Middleton v. State, 80 S.W.3d 799, 808-09 (Mo. banc 2002). Counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. State v. Jones, 979 S.W.2d 171, 180 (Mo. banc 1998). "To support a Rule 29.15 motion due to ineffective assistance of appellate counsel, strong grounds must exist showing that appellate counsel failed to assert a claim of error that would have required reversal had it been asserted and that was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it." Parham v. State, 77 S.W.3d 104, 106 (Mo.App.2002). Thus, to demonstrate prejudice due to ineffective assistance of appellate counsel, a movant must show a reasonable probability that, but for counsel's unreasonable failure to raise the issue, the movant would have prevailed on his appeal. Neely v. State, 117 S.W.3d 731, 735 (Mo.App.2003).

The allegations in Bryan's motion concerning his appellate counsel fail to meet these standards. The trial court found there was no error in admitting Officer Phillips' testimony because "[t]he questions that were asked of Officer Phillips were asked in the context of information relayed to other officers as to what might be relevant to search and seize as part of the investigation." After reviewing the transcript, we agree with the trial court's characterization of the purpose for which this testimony was admitted. Accordingly, Officer Phillips' testimony was not hearsay because it was not being offered for the truth of the matter asserted. See State v. Edwards, 116 S.W.3d 511, 533 (Mo. banc 2003) (officers' testimony about statements made by non-testifying co-defendant were admitted in murder trial for the limited...