Cusumano v. State

• Decision Date: 02 August 2016
• Docket Number: No. ED 102811,ED 102811
• Parties: Rick J. Cusumano, Appellant, v. State of Missouri, Respondent.
• Court: Missouri Court of Appeals

495 S.W.3d 231

Rick J. Cusumano, Appellant,
v.
State of Missouri, Respondent.

No. ED 102811

Missouri Court of Appeals, Eastern District, DIVISION THREE .

Filed: August 2, 2016

Amy E. Lowe, St. Louis, MO, for Appellant.

Chris Koster, Attorney General, Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

OPINION

James M. Dowd, Judge

In February 2010, Cusumano was charged with three felonies for the August 5, 1988, sexual assault of a woman (“Victim”) in Chesterfield, Missouri. Count I

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charged Cusumano with the class A felony of forcible rape based on allegations that Cusumano, while acting with another, knowingly and forcibly had sexual intercourse with Victim without her consent while displaying a deadly weapon in a threatening manner. Count II also charged Cusumano with the class A felony of forcible rape, but while the charging document restated the allegations in Count I, it alternatively charged that if Cusumano did not display a deadly weapon in a threatening manner, then he committed the offense by subjecting Victim to sexual intercourse with more than one person. Count III charged Cusumano with the class A felony of forcible sodomy based on allegations that Cusumano, while acting with another, knowingly and forcibly had deviate sexual intercourse with Victim while displaying a deadly weapon in a threatening manner.

On September 22, 2010, Cusumano was convicted after a jury trial in the Circuit Court of St. Louis County of one count of the unclassified felony of forcible rape and one count of the unclassified felony of forcible sodomy, both of which were lesser included offenses to the class A felonies charged in Counts I and III. Cusumano was sentenced to concurrent terms of life in prison on each conviction.¹ However, on Count II, no lesser included offense instruction was given, and the jury was unable to reach a verdict after more than six hours of deliberation. As a result, Count II was reset for trial on January 3, 2011.

At the retrial on Count II, Cusumano was convicted by the jury of one count of the class A felony of forcible rape. The trial court sentenced Cusumano to a term of life in prison, which was to run consecutively to the two concurrent life sentences Cusumano received on his convictions at the prior trial of the unclassified felonies of forcible rape and forcible sodomy arising from the same incident. In State v. Cusumano , 399 S.W.3d 909 (Mo.App.E.D.2013), Cusumano appealed the judgment convicting him of the class A felony of forcible rape, and this Court affirmed. Cusumano then filed a Rule 29.15 motion for post-conviction relief alleging the ineffective assistance of counsel as to that particular conviction. Cusumano's motion was denied after an evidentiary hearing, and he now appeals.

Cusumano argues that the motion court clearly erred when it concluded that trial counsel did not render ineffective assistance (1) by failing to investigate Detective Gary Fourtney as a potential witness and by failing to call him as a witness at trial; (2) by failing to object to Victim's ex-husband's testimony about Victim's behavioral changes that he testified resulted from the sexual assault she suffered; and (3) by advising Cusumano not to testify at his second trial. Cusumano also argues that the motion court clearly erred when it concluded that appellate counsel did not render ineffective assistance by failing to cite Green v. United States , 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), or Price v. Georgia , 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), in support of the argument that Cusumano's conviction on Count II of the class A felony of forcible rape should be set aside on double jeopardy grounds.

We find no reversible error and affirm.

495 S.W.3d 235

Standard of Review

We review the denial of a Rule 29.15 motion for post-conviction relief solely to determine whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k); Mallow v. State , 439 S.W.3d 764, 768 (Mo.banc 2014). Findings and conclusions are clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Id. The movant bears the burden of demonstrating by a preponderance of the evidence that the motion court clearly erred in its ruling. Roberts v. State , 276 S.W.3d 833, 835 (Mo.banc 2009). We presume that the motion court's findings are correct. Mallow , 439 S.W.3d at 768.

We apply the two-part Strickland test to ineffective-assistance-of-counsel claims for post-conviction relief under Rule 29.15. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Johnson v. State , 406 S.W.3d 892, 898 (Mo.banc 2013). To be entitled to relief, the movant must show by a preponderance of the evidence that (1) his counsel failed to exercise the level of skill and diligence that reasonably competent counsel would have exercised in a similar situation, and (2) that he was prejudiced by that failure. Id. at 898–99. We presume that counsel's decisions were part of a reasonable trial strategy, and to overcome this presumption the movant must identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professionally competent assistance and rendered counsel's trial strategy unreasonable. Id. at 899. To show prejudice, the movant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.

The standard for reviewing a claim of ineffective assistance of appellate counsel is essentially the same as that used in a claim regarding trial counsel. Morse v. State , 462 S.W.3d 907 (Mo.App.E.D.2015) (citing Mallett v. State , 769 S.W.2d 77, 83 (Mo.banc 1989) ). To overcome the presumption that appellate counsel provided reasonable and effective assistance, the movant must show that 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 competent and effective counsel would have recognized and asserted it. Id. The error not raised by appellate counsel must have been so substantial as to amount to a manifest injustice or a miscarriage of justice. Id. To show prejudice, the movant must demonstrate that the claimed error was sufficiently serious that, if it had been raised, there is a reasonable probability the outcome of the appeal would have been different. Id. at 912–13.

Appellate counsel will not be found ineffective for failing to raise a non-meritorious claim. Glover v. State , 225 S.W.3d 425, 429 (Mo.banc 2007) ; see also Morse , 462 S.W.3d at 913. Further, appellate counsel has no duty to raise every possible issue asserted in the motion for new trial on appeal, and no duty to present non-frivolous issues where appellate counsel strategically decides to winnow out arguments in favor of other arguments. Baumruk v. State , 364 S.W.3d 518, 539 (Mo.banc 2012).

Point I: Failure to Investigate Detective Gary Fourtney as a Potential Witness and to Call Him as a Witness at Trial

With regard to Point I, we find first that Cusumano failed to prove that trial counsel rendered ineffective assistance by failing to investigate Detective

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Fourtney as a potential witness. When an ineffective assistance of counsel claim is based on an alleged failure to investigate a witness, the movant must allege what specific information counsel failed to discover; that reasonable investigation would have disclosed that information; and that the information would have improved the movant's position. Dehart v. State , 755 S.W.2d 611, 613 (Mo.App.E.D.1988). Cusumano has failed to make any such allegations; all the information about which he asserted that he wished to have Detective Fourtney testify at trial was included in the...