Bryan v. State
| Decision Date | 28 April 2022 |
| Docket Number | SD 36990 |
| Citation | 644 S.W.3d 306 |
| Parties | Damien T. BRYAN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Attorney for Appellant: Daniel E. Hunt of Jefferson City, MO.
Attorney for Respondent: Eric S. Schmitt, Atty. Gen., and Evan J. Buchheim, Asst. Atty. Gen., of Jefferson City, MO.
Damien Bryan (Movant) requested Rule 29.15 post-conviction relief after he was convicted of felony driving while intoxicated (DWI) and two counts of murder in the second degree.1 Those charges were filed in connection with a multi-vehicle collision that resulted in the deaths of the drivers of two other vehicles involved in the collision. After an evidentiary hearing, the motion court denied Movant's amended motion on December 29, 2020. Movant appeals and presents seven points for decision. All points are premised on alleged ineffective assistance of trial counsel. Finding no merit in any of Movant's points, we affirm the order denying relief.
After Movant was found guilty by a jury on the aforementioned charges, the trial court sentenced Movant to serve three years in the Department of Corrections (DOC) for DWI and 25 years in the DOC for each murder. The sentences for the murders were to run concurrently, and the sentence for DWI was to run consecutively to the murder sentences. We affirmed the trial court's judgment on direct appeal in State v. Bryan , 439 S.W.3d 781 (Mo. App. 2014).
Appellate courts have an independent duty to enforce the mandatory time limits for the initial and amended motions in Rule 29.15 and Rule 24.035. See Bearden v. State , 530 S.W.3d 504, 506 (Mo. banc 2017) ; Price v. State , 422 S.W.3d 292, 297 (Mo. banc 2014) ; Huskey v. State , 635 S.W.3d 886, 888 (Mo. App. 2021) ; Harness v. State , 611 S.W.3d 909, 912 (Mo. App. 2020). Our mandate issued on October 1, 2014. Movant filed an initial motion for Rule 29.15 post-conviction relief on December 26, 2014, in the Circuit Court of Cole County, Missouri.2 This motion was timely because it was filed within 90 days after the date our mandate issued. See Rule 29.15(b) and (m).
The circuit court appointed the public defender to represent Movant on the same day the initial motion was filed. No public defender entered an appearance on behalf of Movant. Instead, the district defender sent a letter to the circuit court on January 12, 2015, notifying the court that the motion had been filed in the wrong county and should be transferred for disposition. On January 27, 2015, the case was transferred to the Circuit Court of Camden County (hereinafter referred to as the motion court).
On February 24, 2015, retained counsel entered an appearance on behalf of Movant, and filed an amended motion for post-conviction relief on April 24, 2015. The motion court subsequently determined that the public defender had abandoned Movant. That finding of abandonment meant the "cause shall proceed anew according to the provisions of the rule" pursuant to the holding in Luleff v. State , 807 S.W.2d 495, 498 (Mo. banc 1991). Therefore, the amended motion was timely because it was filed within 60 days of retained counsel's entry of appearance. See Rule 29.15(g).
Movant bore the burden of proving the grounds asserted in his post-conviction motion by a preponderance of the evidence. See Rule 29.15(i); McLaughlin v. State , 378 S.W.3d 328, 337 (Mo. banc 2012). Our review of the denial of a Rule 29.15 motion is limited to determining whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Williams v. State , 168 S.W.3d 433, 439 (Mo. banc 2005). We will find clear error only if a full review of the record leaves us with a definite and firm impression that a mistake has been made. Zink v. State , 278 S.W.3d 170, 175 (Mo. banc 2009). We presume the motion court's findings and conclusions are correct. McLaughlin , 378 S.W.3d at 336-37. We "view the record in the light most favorable to the motion court's judgment, accepting as true all evidence and inferences that support the judgment and disregarding evidence and inferences that are contrary to the judgment." Hardy v. State , 387 S.W.3d 394, 399 (Mo. App. 2012). We also defer to the motion court's credibility determinations. Smith v. State , 413 S.W.3d 709, 715 (Mo. App. 2013). The following summary of favorable facts from the criminal trial has been prepared in accordance with these principles.
Around 10:40 a.m. on August 31, 2011, Movant was driving a 1981 Ford F-150 truck northbound on South Country Club Spur in Cole County, Missouri. Movant was approaching a stop sign on Country Club Spur where it intersected with Route C. He intended to cross Route C to go onto Rumsey Lane. Movant's vehicle entered Route C and collided with an eastbound 2004 Lexus SUV driven by Joan Hamilton (Hamilton). The front end of the Ford caught the right front of the Lexus. The collision caused the Lexus to rotate clockwise almost 180 degrees. It tipped over onto its side with the bottom of the vehicle facing a westbound 1995 Chevrolet Blazer driven by Donald Edwards (Edwards). His Blazer collided with the bottom of the Lexus. That caused the Lexus to roll on top of the Blazer and then land on the ground next to it. Edwards was pronounced dead at the scene. Hamilton was transported to a hospital, where she later died.
The Missouri State Highway Patrol (MSHP) was notified of the collision, and Trooper Richard Dowd (Trooper Dowd) was dispatched to the scene at 10:48 a.m. Movant was being treated in an ambulance when Trooper Dowd arrived. He spent about five minutes with Movant. Movant informed Trooper Dowd that he had been crossing Route C when "he looked to the left, didn't see the vehicle, pulled out, and got hit." Movant had no visible injuries. Trooper Dowd administered a portable breath test (PBT) to Movant, and it indicated no presence of alcohol. Movant was then taken to the hospital.
After Movant was released from the hospital, he was interviewed again by Trooper Dowd. Movant gave the following description of how the collision took place:
he was crossing ... Route C from South Country Club Spur to go onto Rumsey; said he looked left, looked right, saw the vehicle to his right, looked left again; didn't see anything, looked right, thought he had time to make the crossover; and then got hit by the vehicle on the left [the Lexus driven by Hamilton] that he never saw.
Corporal M. A. Halford (Cpl. Halford) worked for the MSHP as a drug recognition expert (DRE). He had been certified by the International Association of Chiefs of Police as a DRE in July 2008. He became an instructor in standardized field sobriety testing in September 2008. In October 2009, he was also certified to be a DRE instructor. He placed all of his drug-recognition evaluations into a "rolling log," which he kept as a training tool to assess the accuracy of his evaluations. At the time of trial, Cpl. Halford testified that the percentage of his evaluations that were correct based on subsequent laboratory testing was "[a]pproximately 90 percent."
Cpl. Halford arrived at the accident scene a little after 11:00 a.m. After a brief stay there, he went to the hospital where Movant was being treated. Cpl. Halford interviewed Movant and recorded the audio of the interview. The interview took place within 45 minutes after the collision occurred. Movant said his "only injury [from the collision] at that point in time ... was a whack to the ribs." During the interview, Cpl. Halford requested that Movant permit a blood sample to be drawn and given to law enforcement.3 Movant gave his consent for the blood draw. A sample of Movant's blood was drawn into two vials by a nurse and given to Cpl. Halford at about 11:45 a.m. Cpl. Halford labeled the vials A and B. Vial B was "an extra in case something happened to the original vial."
During the interview, Cpl. Halford noticed that:
[Movant's] speech was mumbled at times during it, assumed a fast speech pattern. And then during the blood draw – or the prepping of the blood draw and waiting, he engaged conversation with Sheriff White. And during that conversation, he seemed to ramble, laugh, nervous laugh, kind of an inappropriate laugh, I felt, and continued on speaking with Sheriff White.
Cpl. Halford also observed:
[Movant's] fast speech pattern, his what we call bruxism. Bruxism is the clenching of the teeth. That's something that we look for in a DRE, in a drug recognition expert evaluation. It's a sign or a symptom of stimulant use. And he was exhibiting that.
Movant's pupils "were of normal, equal size [but] his eyes were a bloodshot or a reddened appearance." Movant's "pulse was above normal" and he sounded "winded [or] out of breath just speaking[.]" Prior to this incident, Cpl. Halford had briefly spoken with Movant on several occasions, and Movant had not exhibited any of these symptoms on those occasions.4
After the interview ended, Cpl. Halford secured the blood vials in his vehicle and retrieved items and forms to complete a DRE evaluation. Upon return to Movant's hospital room, Movant was suddenly "very agitated, standoffish" and argumentative and declined to perform field sobriety tests. Movant also said he "wanted a glass of water because he was thirsty and had a dry mouth."
Based on Cpl. Halford's observations, he believed that Movant was under the influence of a "central nervous system stimulant" and was impaired by that substance to an extent that it would have affected his ability to drive a motor vehicle. That category of drug includes the medication, Adderall, that Movant said he was prescribed and used daily. That category of drug also includes methamphetamine and cocaine. A therapeutic dosage of Adderall (i.e., a dose prescribed by a physician) should not cause the "psychophysical" symptoms Movant exhibited.
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...29.15 motion to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous. Bryan v. State, 644 S.W.3d 306, 310 (Mo. App. S.D. 2022) (citing Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005) ); see also Rule 29.15(k). "We will find clear error on......