Cornelious v. State

• Decision Date: 27 September 2011
• Docket Number: No. WD 72866.,WD 72866.
• Citation: 351 S.W.3d 36
• Parties: Otis CORNELIOUS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

351 S.W.3d 36

Otis CORNELIOUS, Appellant,
v.
STATE of Missouri, Respondent.

No. WD 72866.

Missouri Court of Appeals, Western District.

Sept. 27, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 1, 2011.

[351 S.W.3d 39]

James R. Hobbs, J. Justin Johnston, Kansas City, MO, for Appellant.

Chris Koster, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before Division IV: LISA WHITE HARDWICK, Chief Judge, Presiding, MARK D. PFEIFFER, Judge, and ROBERT M. SCHIEBER, Special Judge.

[351 S.W.3d 40]

MARK D. PFEIFFER, Judge.

Otis Cornelious (“Cornelious”) was convicted of murder in the first degree and armed criminal action and was sentenced to life imprisonment without the possibility of probation or parole for the murder charge and twenty-seven years imprisonment for the armed criminal action charge, sentences to run concurrently. His convictions and sentences for these crimes were affirmed on direct appeal. State v. Cornelious, 258 S.W.3d 461 (Mo.App. W.D.2008). He now appeals from the judgment of the Circuit Court of Jackson County, Missouri, denying his timely filed Rule 29.15 motion for post-conviction relief based on ineffective assistance of counsel. We affirm.

Facts and Procedural History¹

One of the issues Cornelious raised in his direct appeal was that his Fifth Amendment rights as outlined in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), were violated when the prosecutor impermissibly commented on his post-arrest silence. Cornelious, 258 S.W.3d at 464. Of the four errors alleged, only one of the alleged errors was objected to and, thus, preserved for appellate review under the standard outlined in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).² Id. at 465. On direct appeal, this Court found that the preserved error, where the defense objected to the prosecutor's comments about Cornelious's failure to call the police and inform them that the shooting was in self-defense, was not an impermissible comment on Cornelious's silence in violation of Doyle. Id. at 467. The other alleged errors were unpreserved and were reviewed only for plain error. Id. at 465. We found that two of the unpreserved alleged errors, concerning the prosecutor's comments on Cornelious's silence at the time he was fleeing, were not impermissible violations of Doyle but were legitimate methods of impeaching his credibility. Id. at 466. The final unpreserved alleged error, concerning the prosecutor's statement that Cornelious had two years to think about his story, was found to be a comment on Cornelious's post-arrest, post- Miranda silence; but we concluded that the comment did not result in a manifest injustice or a miscarriage of justice. Id. at 466–67.

Cornelious, with the assistance of private counsel, filed a timely Rule 29.15 Motion to Vacate, Set Aside or Correct Judgment and Sentence (“Rule 29.15 Motion”) on November 17, 2008. Cornelious raised two claims of ineffective assistance of counsel in his post-conviction relief motion: first, that counsel was ineffective “when he neglected to make a timely objection to the State's repeated comments regarding [Cornelious's] post-arrest silence”; and second, “when he neglected to investigate or seek discovery regarding critical fingerprint evidence, despite [Cornelious's] requests to do so.” Cornelious filed an amended Rule 29.15 Motion on March 24, 2010, which was further amended by handwritten interlineation on April 15, 2010.

On April 15, 2010, the Circuit Court of Jackson County, Missouri (“motion court”),

[351 S.W.3d 41]

held a hearing on Cornelious's Rule 29.15 Motion. On July 27, 2010, the motion court entered its judgment denying Cornelious's Rule 29.15 Motion. Cornelious appeals.

Standard of Review

Appellate review of the denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Sidebottom v. State, 781 S.W.2d 791, 794–95 (Mo. banc 1989). “Findings and conclusions are deemed clearly erroneous only if a full review of the record leaves the appellate court with the definite and firm impression that a mistake has been made.” Sidebottom, 781 S.W.2d at 795. The motion court's ruling is presumed correct. Strong v. State, 263 S.W.3d 636, 642 (Mo. banc 2008).

To be entitled to post-conviction relief for ineffective assistance of counsel, Cornelious must satisfy the two-prong Strickland test: (1) that counsel's performance was deficient, in that he failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances; and (2) that counsel's deficient performance prejudiced Cornelious's defense. Strickland v. Washington, 466 U.S. 668, 686, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002). In reviewing the performance prong, Cornelious must overcome the presumptions that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment. Strickland, 466 U.S. at 689–90, 104 S.Ct. 2052. To prove prejudice, Cornelious must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. Both of these prongs must be established by a preponderance of the evidence in order to prove ineffective assistance of counsel. Strong, 263 S.W.3d at 642. If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and Cornelious's claim of ineffective assistance of counsel must fail. State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997).

Analysis Point I: Ineffective Assistance—Failure to Object

Cornelious raises two points on appeal. First, he claims that the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief, alleging ineffective assistance of trial counsel, because he claims the motion court incorrectly applied the “law of the case” doctrine. Specifically, Cornelious asserts that the motion court erred when it used our decision on direct appeal—that the prosecutor's comments during Cornelious's cross-examination and during closing argument did not rise to the level of plain error—as determinative of the separate post-conviction issue of whether trial counsel's failure to object to such comments constituted ineffective assistance of counsel.

As to this first point, we note that “the standards of review of preserved and unpreserved error on direct appeal are different from each other, and ... both are in turn different from the standard for review of a post-conviction motion.” Deck, 68 S.W.3d at 427. Appellate review for preserved error is for prejudicial error, and the court will reverse only if the error deprived the defendant of a fair trial. Id. Pursuant to Rule 30.20, appellate courts have the discretion to review unpreserved error for plain error if manifest injustice would otherwise result. Id. at 427–28. Both of these standards of review presuppose that the trial was a fair proceeding.

[351 S.W.3d 42]

Id. at 428. In contrast, in a post-conviction motion alleging ineffective assistance of counsel, the defendant is asserting that an error occurred that undermines the appellate court's confidence in the fairness of the proceeding. Id. The inquiries before the appellate court on direct appeal and on post-conviction review are different, and “denial of a plain error claim is not dispositive of the question whether counsel was ineffective in failing to preserve the issue as to which plain error was not found.” Id.

In Cornelious's direct appeal, Cornelious claimed that his Fifth Amendment rights as outlined in Doyle were violated when the prosecutor impermissibly commented on his post-arrest silence. Cornelious, 258 S.W.3d at 464. In the direct appeal, we reviewed the prosecutor's three references that were not objected to for plain error. Id. at 465–66. We held the prosecutor's questions to Cornelious during cross-examination about his fleeing from the FBI, and the prosecutor's argument during closing argument that a reasonable person would not have fled but would have contacted the police and explained that he acted in self-defense were not Doyle violations but were legitimate methods of impeaching his credibility, and there was no plain error in the trial court's failure to declare a mistrial. Id. at 466–67. As to the prosecutor's statement during closing argument that Cornelious had two years to think about his story, we assumed that Cornelious had been given his Miranda warnings and had asserted his Fifth Amendment rights so that the prosecutor's statement did comment on Cornelious's post-arrest, post- Miranda silence “at least somewhat.” Id. at 466. In the direct appeal, we next considered whether this comment “resulted in a manifest injustice or a miscarriage of justice.” Id. We noted that “[a] court should rarely grant relief on an assertion of plain error as to matters contained within closing argument” and held that the trial court had no duty to intervene sua sponte to declare a mistrial. Id. at 467. Thus, on direct appeal, we found no plain error in the prosecutor's comments during closing argument.

In reviewing the motion court's decision on Cornelious's Rule 29.15 motion, we do not determine the propriety of the prosecutor's complained-of questions to Cornelious during cross-examination nor the prosecutor's comments in closing argument. Instead, we must determine whether Cornelious's trial counsel's failure to timely and properly object to these questions and arguments constitutes ineffective assistance of counsel, thereby prejudicing Cornelious.

An appellate court can decide an unpreserved error on appeal by: (1) declining to exercise its discretionary authority to review the point for...