Dawson v. State Of Mo.

• Decision Date: 15 June 2010
• Docket Number: No. WD 70702.,WD 70702.
• Parties: Terrell E. DAWSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

315 S.W.3d 726

Terrell E. DAWSON, Appellant,

v.STATE of Missouri, Respondent.

No. WD 70702.

Missouri Court of Appeals, Western District.

June 15, 2010.

COPYRIGHT MATERIAL OMITTED

Edward Scott Thompson, St. Louis, MO, for appellant.

Shaun J. Mackelprang and Daniel N. McPherson, Jefferson City, MO, for respondent.

Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

Terrell Dawson ("Dawson") appeals from the motion court's denial of his Rule 29.15 motion for post-conviction relief. Dawson was convicted of two counts of murder in the first degree, two counts of armed criminal action, one count of kidnapping, and one count of burglary in the first degree. On appeal, Dawson claims the motion court erred in denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing because he received ineffective assistance of counsel. Dawson contends that trial counsel failed to particularize the prejudice that would result if the trial court did not sever Daw son's trial from that of co-defendant Ja-vonty Steward ("Steward"). Dawson also contends that trial counsel was ineffective because trial counsel failed to object to Kenderal Rogers's ("Rogers") invocation of his Fifth Amendment right to remain silent. Dawson maintains that trial counsel's failure to object led the jury to infer that Dawson was guilty. We affirm.

Factual and Procedural History¹

On the night of April 24, 2004, Dei-trik Davis ("Davis") along with Andre Golden ("Golden") and Allyssa Zahner ("Zahner") went to 51st and Wabash in Kansas City, Missouri to meet with Dawson. When Davis arrived, Dawson walked up to the car, pointed a gun at Davis's head and ordered Golden and Zahner out of the car. Steward got into the driver's seat of the car, Davis moved to the passenger seat, and Dawson and Rogers got into the back seat. Dawson, Steward, and Rogers were armed. Dawson directed Steward to drive to St. Joseph, Missouri, to look for J.R. Boyd ("Boyd"). Dawson was angry with Boyd because Boyd owed Dawson approximately $800. Dawson and Davis believed that Boyd's girlfriend still lived in St. Joseph in a home on 3rd Street.

When the men arrived at the home on 3rd Street, Rogers kicked in the door. The men found Danny Watson, Jr. ("Watson") and Dawn Thorton ("Thorton") in a bedroom. Watson and Thorton had purchased the home in February 2004. The men realized that Watson and Thorton were not Boyd or Boyd's girlfriend. Notwithstanding, Dawson ordered the other men to go look for money, while he held a gun on Watson and Thorton. When the other men returned without money, Dawson yelled at the couple and started hitting Watson in the face with the gun. Dawson instructed Steward to put a pillow over Thorton's head and shoot her. Steward complied. He shot Thorton in the head two times. Watson was shot three times as he attempted to flee. It was unclear who shot Watson. Steward, Dawson, Rogers, and Davis then left the home and drove back to Kansas City.

The men went to an abandoned home where other Dawson acquaintances were holding Golden and Zahner. Dawson held Davis at gun point and told Davis he had to shoot Zahner. Davis refused. Eventually, Dawson told Davis, Golden, and Zahner they could leave once he and his companions were gone.

Dawson was charged on September 30, 2004 with two counts of first degree murder, section 565.020;² two counts of armed criminal action, section 571.015; one count of kidnapping, section 565.110; and one count of burglary, section 569.1(50. Steward was similarly but separately charged.

On March 4, 2005, the prosecuting attorney filed a motion to join the trials of Dawson and Steward, stating that both cases involved the same set of facts and identical witnesses, and that a joint trial would be in the best interests of judicial economy. Dawson's counsel objected to the motion. The motion was sustained.

On July 21, 2005, Dawson's case was reassigned, and new lead trial counsel entered her appearance.³ Dawson's trial counsel filed a motion to sever Dawson's and Steward's trials on August 26, 2005. The trial court advised trial counsel it had already considered the issue of joinder and that counsel would have to present new evidence on the issue to change the court's mind. At the hearing on the motion to sever in early September 2005, trial counsel argued that Steward had notified the prosecutor that he would rely on the defense of an alibi. Trial counsel articulated concern that this created a prejudice in her ability to formulate a defense for Dawson. Trial counsel argued, by way of example, that should Dawson allege that he and Steward were both involved in the crime but that Dawson's role was limited, Steward's alibi defense would be clearly antagonistic, creating prejudice to each defendant.

The motion to sever was denied on September 9, 2005. The trial court's order stated:

Defendant Dawson has failed to make any factual showing that his right to a fair trial will be prejudiced by the Court denying his motion to sever and instead order separate trials for each defendant. Defendant Dawson has merely claimed that he will be antagonistic to Defendant Steward in his testimony at trial. The allegation that he will be antagonistic toward the co-defendant does not establish that he will be prejudiced by being tried jointly with the co-defendant or show how a joint trial will prevent him from having a fair trial.

Trial began on October 13, 2005. The State told the jury in its opening statement that it would be calling Rogers to testify. The State told the jury that Rogers would tell them about the drive to St. Joseph and about what occurred at the victims' home after the door was kicked open. Just before Rogers was to take the stand, Rogers advised the trial court out of the hearing of the jury that he intended to invoke his Fifth Amendment privilege. After questioning Rogers outside the presence of the jury and after lengthy discussions with counsel, the trial court permitted Rogers to take the stand to assert the Fifth Amendment for the limited purposes of allowing the State to explain to the jury why they would not be hearing testimony from Rogers as had been represented during opening.

The State presented multiple witnesses that placed Dawson and Steward at the scene of the crimes. One such witness was Davis, who saw the murders, and who was in the room when Dawson instructed Steward to shoot Thorton. The State also called a witness who testified that he had spoken with Dawson following the murders and that Dawson had told him that when they got to the home in St. Joseph he realized "they [the couple in the house] was the wrong people and they had to numb [shoot] them."

Co-defendant Steward called several witnesses who testified that Steward was at a residence at 4233 Prospect, Kansas City, Missouri, on the night the crimes occurred. However, on cross examination the witnesses were impeached.

Dawson did not testify or call any witnesses at trial. On October 20, 2005, Dawson was convicted of two counts of first degree murder, each with a sentence of life without parole, two counts of armed criminal action, each with a sentence of 99 years, and of kidnapping and burglary, each with a sentence of fifteen years. All sentences were to be consecutively served.

Dawson's conviction was affirmed on appeal on May 22, 2007. State v. Dawson, 222 S.W.3d 337 (Mo.App. W.D.2007).

On August 31, 2007, Dawson filed a pro se motion to set aside his convictions based on ineffective assistance of counsel. Counsel was appointed, and an amended Rule 29.15 motion was filed. However, Dawson's counsel died shortly thereafter. New counsel was appointed, and a second amended Rule 29.15 motion was filed on September 3, 2008.

The trial court conducted an evidentiary hearing on Dawson's motion on October 31, 2008. Dawson's trial counsel did not have a clear recollection of the trial proceedings. Trial counsel testified generally that she believed that the joint trials prejudiced Dawson but could not specifically state why she believed he was prejudiced. Trial counsel testified that Steward's alibi witnesses made a "poor attempt at the alibi [and made it look like] we're [counsel for Dawson] putting on false evidence." Trial counsel also testified that the alibi at trial did not go over well with the jury and that it went "belly up." Trial counsel thus testified that Steward's unbelievable alibi witnesses did not help Dawson's case and that if the trial had been severed, those witnesses would not have testified in Dawson's trial.

On January 15, 2009, Dawson's Rule 29.15 motion for post-conviction relief was denied. This appeal follows.

Standard of Review

Appellate review of a motion court's denial of a Rule 29.15 motion for post-conviction relief is limited to a determination of whether its findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); William* v. State, 205 S.W.3d300, 304 (Mo.App. W.D.2006). Findings of facts and conclusions of law are " 'clearly erroneous only if, after reviewing the entire record, we are left with a definite and firm impression that a mistake has been made.'" Id. at 305 (quoting Johnson v. State, 189 S.W.3d 640, 644 (Mo.App.2006)). Analysis

In order to prevail on an ineffective assistance of counsel claim, Dawson must show by a preponderance of the evidence that: (1) trial counsel's performance was deficient because she failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances; and (2) the deficient performance prejudiced Dawson. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). If either the performance prong or the prejudice prong is not met, then we need not consider the other, and Dawson's claim of ineffective assistance of counsel must fail. Strickland...