Davidson v. State
| Citation | 308 SW 3d 311 |
| Decision Date | 20 April 2010 |
| Docket Number | No. ED 93050.,ED 93050. |
| Parties | Diallo C. DAVIDSON, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Melinda K. Pendergraph, Assistant Public Defender, Columbia, MO, for appellant.
Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
Diallo Davidson (Movant) appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.151 motion. Movant first asserts that the motion court clearly erred in denying his claim, after a hearing, that trial counsel was ineffective for failing to object to Movant wearing shackles during the trial without the trial court finding that Movant was a security threat. Additionally, Movant asserts that the motion court clearly erred in denying him an evidentiary hearing on his claims that trial counsel was ineffective for failing to: impeach a key State witness with documentary evidence; object to or file a motion to suppress a State witness's identification of Movant based on a photograph of Movant published in a newspaper and failing to object to the admission of the newspaper itself; and allow Movant to testify at trial. We affirm.
The evidence at Movant's trial established the following: On January 5, 2004, Movant purchased a single pill of what he believed to be synthetic heroin. Movant tested the pill but determined that it was not actually synthetic heroin. Movant then pursued the seller and his two companions in a high-speed car chase through the City of St. Louis. Movant's girlfriend, Hollie Pruitt, and their son were also in the car with Movant. Movant eventually cornered the three men's car on a dead-end street. Movant pulled a gun from his waistband and shot repeatedly at the car. The seller of the pill died from a single gunshot wound to his cervical spine. Movant also wounded the driver, Kevin Page. The third man fled the scene apparently unwounded.
The State charged Movant with one count of murder in the first degree, two counts of assault in the first degree, and three counts of armed criminal action. Before trial, Movant's trial counsel filed a motion in limine to prevent the State from referencing Movant's arrest for the murders of two other men in connection with Page's identification of Movant as the shooter. Trial counsel expected Page to testify that he recognized Movant during the shooting because Movant had been pictured in a newspaper with the two murdered men. Page remembered the photographs because he had been friends with the two victims. The photographs had appeared in a 2002 edition of the Evening Whirl, a St. Louis "Crime Fighting Publication." The trial court ruled that Page could refer to the photographs but not to the underlying murders.
During jury selection, the trial court discovered that the sheriff had placed leg shackles on Movant because of security concerns without the trial court's prior approval. The restraints consisted of a leg brace underneath Movant's clothing and leg shackles with a connecting chain on the outside of Movant's clothing. The trial court determined that the shackles were not visible to the jury and permitted the shackles to remain on Movant. Trial counsel did not object to the shackling but moved chairs in front of counsel's table to obscure the jury's view of the shackles.
At trial, the State called seven witnesses including Pruitt and Page. During cross-examination, Movant's trial counsel attempted to impeach Pruitt's testimony by suggesting the State and police coerced Pruitt's testimony. To that end, trial counsel introduced prior inconsistent statements from Pruitt's pre-trial deposition. Trial counsel also cross-examined Pruitt regarding inconsistent statements made during the police investigation. Trial counsel did not confront Pruitt with the letters she wrote to Movant while Movant was in jail. Trial counsel also chose not to use jail records demonstrating, contrary to Pruitt's pre-trial deposition testimony, that she visited Movant in jail after his arrest.
Page testified that during the car chase and shooting he recognized Movant from a picture he had seen in the Evening Whirl several years previously that showed Movant with two of Page's friends. During Page's testimony, the State showed him the newspaper. Page identified each of the people in the picture, including Movant. Over trial counsel's objection, the State moved for admission of the newspaper, and the trial court admitted it.
After the State rested and Movant called his only witness, the trial court examined Movant regarding whether he planned to testify. The trial court told Movant that it did not intend to interfere in his decision to testify, that the decision was solely Movant's, and that unless the trial court heard from Movant, it assumed that Movant was not going to testify. Movant acknowledged that he understood that the decision was his and that he did not intend to testify. Movant did not testify.
The jury convicted Movant of all six counts. The trial court sentenced Movant to life without parole, three consecutive life sentences and fifteen and ten years concurrent to the life sentences. At the sentencing hearing, the trial court examined Movant to determine if he received effective assistance of counsel. Movant stated only that trial counsel had failed to: (1) contact witnesses that Movant identified, and (2) introduce evidence of letters to Pruitt that suggested the State coerced her testimony. Movant did not complain that trial counsel did not allow him to testify. This Court affirmed Movant's conviction on appeal. State v. Davidson, 242 S.W.3d 409 (Mo.App. E.D.2007).
Movant timely filed a pro se Rule 29.15 motion. Appointed counsel later amended the motion incorporating all of Movant's pro se allegations. In his amended motion, Movant alleged fifteen separate incidents of ineffective assistance of counsel and requested an evidentiary hearing on each of the claims. The motion court granted an evidentiary hearing on three of Movant's claims, including trial counsel's failure to object to the shackling of Movant. Trial counsel testified at the hearing, and post-conviction counsel submitted Movant's deposition. In its judgment, the motion court denied all of Movant's claims of ineffective assistance of counsel. This appeal followed.
Our review of the motion court's denial of a Rule 29.15 motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009); Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). The motion court's findings and conclusions are clearly erroneous only if a review of the entire record leaves this court with the definite and firm impression that a mistake has been made. Zink, 278 S.W.3d at 175. In making this determination, we presume the motion court's findings are correct. Id.
To prevail on a claim of ineffective assistance of counsel, a movant must show both that counsel failed to meet the standard of a reasonably competent attorney under similar circumstances and that this failure prejudiced the movant. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). However, there is a strong presumption that trial counsel acted professionally. Id.; Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005). To establish prejudice, the movant must show that but for counsel's deficient performance, there is a reasonable probability that the outcome of the trial would have been different. Smith v. State, 276 S.W.3d 314, 316 (Mo.App. E.D.2008). The movant must meet his or her burden by a preponderance of the evidence. Zink, 278 S.W.3d at 175. If the movant cannot show either a deficient performance or prejudice, then this Court need not consider both. Smith, 276 S.W.3d at 316.
To obtain an evidentiary hearing, a movant must show that: (1) he alleged facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the record; and (3) the matters complained of resulted in prejudice to the movant. Forrest v. State, 290 S.W.3d 704, 715-16 (Mo. banc 2009). An evidentiary hearing is not required when the record conclusively shows that a movant is not entitled to relief. Rule 29.15(h); Barnett v. State, 103 S.W.3d 765, 770 (Mo. banc 2003).
In his first point on appeal, Movant argues that the motion court clearly erred in denying his claim, after a hearing, that trial counsel was ineffective because she did not object to the trial court's failure to find that Movant posed a security risk before the sheriff shackled Movant. The Due Process Clause generally prohibits the use of visible shackles on a defendant during the guilt and sentencing phases of a trial. Deck v. Missouri, 544 U.S. 622, 629-33, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). The Supreme Court in Deck stated that "where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation." Id. at 635, 125 S.Ct. 2007. The Fifth and Fourteenth Amendments prohibit the use of visible shackling because it "undermines the presumption of innocence and the related fairness of the factfinding process." Id. at 630, 125 S.Ct. 2007. However, the prohibition on shackling during a trial is limited to restraints that are actually visible to the jury. Zink, 278 S.W.3d at 185-86. Visible shackles can also be used if the trial court determines, in its discretion, that there is a specific state interest, such as the potential for escape or violence, in using the restraints on the instant defendant. Deck, 544 U.S. at 629, 125 S.Ct. 2007.
During the trial, the sheriff placed restraints on Movant without the trial court's...
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