Dishmon v. State

• Decision Date: 27 March 2008
• Docket Number: No. 28361.,28361.
• Citation: 248 S.W.3d 656
• Parties: Melvin Charles DISHMON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

248 S.W.3d 656

Melvin Charles DISHMON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

No. 28361.

Missouri Court of Appeals, Southern District, Division Two.

March 27, 2008.

Gwenda R. Robinson, District Defender, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Shaun J. MacKelprang, Assistant Attorney General, Jefferson City, MO, for respondent.

GARY W. LYNCH, Chief Judge.

Melvin Charles Dishmon ("Movant") appeals the motion court's denial of his Rule 29.15¹ motion for post-conviction relief which alleged ineffective assistance of counsel, specifically arguing (1) that he was involuntarily coerced by his trial counsel into waiving his right to a jury trial; and (2) that he was prejudiced by trial counsel's improper questioning of Movant at trial regarding the details of Movant's prior aggravated assault conviction. Because Movant's complaints were born out of reasonable trial strategy, trial counsel was not ineffective. We affirm.

Factual Background²

Movant and Gloria Cole ("Cole") lived together. On June 4, 2004, Cole arrived at the house of her friend, Francine Clark ("Clark"), and told her that Movant had hit her. Later that afternoon, Movant arrived at Clark's house looking for Cole. Cole told Movant that she wanted him to "get his stuff" and get out of her house. Johnny Bowen ("Bowen") and Dewayne Anthony ("Anthony") were at Clark's house, and they started walking with Movant toward Cole's house. As they were walking, Anthony and Bowen hit Movant and knocked him down.

Movant stood up, started walking away and was eventually stopped by Kennett Police Officer Jeremy Yates ("Officer Yates"). Officer Yates had received a dispatch regarding an "unwanted guest," who matched the description of Movant, at Clark's house. Officer Yates advised Movant not to return to Clark's house and then released him.

Later that night, Movant approached Cole's house where Bowen was sitting on the porch. Movant approached Bowen and accused him of being one of the people that hit him earlier in the evening. Movant confronted Bowen and used a box cutter to repeatedly stab him; he fled from the scene after stabbing Bowen approximately ten or eleven times. The attack left Bowen with scars on his face and neck, the loss of sight in his left eye, and a loss of hearing. He also suffered nerve damage and speech problems.

Kennett Police Officer Mark Dennis ("Officer Dennis") arrived at the scene of the crime and was given a description of Movant. Officer Dennis was searching for Movant when he saw an individual running through an open field near the scene of the crime. Officer Dennis was unable to catch the fleeing individual, but he contacted Officer Yates and advised him that he saw a suspect running through the field. Officer Yates started running after the suspect and, when he caught him, ordered the suspect to stop. Officer Yates did not recognize the suspect as Movant at that point. After Movant stopped running, Officer Yates placed Movant in handcuffs for his own protection and asked Movant why he was running. Movant answered by saying that "he just cut up a boy." Officer Yates, again fearing for his own safety, inquired as to whether Movant still had the weapon on him. Movant answered by saying that he used a box cutter but had thrown it down.

Movant was charged with first-degree assault, pursuant to section 565.050,³ and armed criminal action, pursuant to section 571.015.

Six days before the start of his scheduled jury trial, Movant signed a waiver of his right to a jury trial and filed it with the trial court. The next day during a pretrial conference, the trial court questioned Movant regarding his choice of a bench trial over a jury trial, informed him that he had a right to force the State to convince a jury unanimously of his guilt, inquired as to any discussions occurring between Movant and counsel regarding his choice of a bench trial, and informed Movant of the trial court's ability to consider the full range of punishments available should the trial court find Movant guilty. At that time, Movant stated that he understood the extent of his rights and still wished to waive his right to a jury trial and proceed with a bench trial. The trial court further inquired as to the existence of any coercion or promises regarding Movant's choice; Movant denied that counsel had in any way undermined the validity of Movant's individual decision to waive his right to a jury.

At trial, Movant testified that he acted in self-defense against Bowen, claiming that he attacked Bowen because Movant was afraid of him, as Bowen had assaulted Movant earlier in the evening. During Movant's direct examination, counsel asked about a prior aggravated assault conviction Movant had incurred while a teenager; Movant explained that his mother's boyfriend had come at him with a knife and, in his own defense, Movant shot him in the hip to stop the attack. Movant also mentioned another incident involving his being attacked with a knife in 1992, and asserted that, as a result, he had a heightened fear of knives.

The trial court found Movant guilty of both first-degree assault and armed criminal action. Thereafter, Movant received concurrent twenty-year and ten-year sentences on the charges, respectively. Movant filed a direct appeal of his conviction, and this court affirmed his judgment of conviction. See State v. Dishmon, No. SD27162, memo. op. (Mo.App. June 14, 2006). Movant timely filed a Rule 29.15 motion for post-conviction relief alleging, among other things, that his trial counsel was ineffective for coercing Movant into waiving his right to a jury trial and for eliciting from Movant during his trial testimony the details surrounding Movant's prior conviction for assault. Counsel was appointed for Movant, and an amended motion was thereafter timely filed.

At the evidentiary hearing on Movant's amended motion for post-conviction relief, both Movant's primary trial counsel and trial counsel's supervisor testified that, during conversations with Movant before trial, it was their recommendation that Movant waive a jury trial. These recommendations were based on the likely makeup of the jury, the potential difference in sentencing if imposed by the trial court as opposed to a sentence recommended by a jury, and the State's strong case against Movant. Movant's trial counsel testified that he did not attempt to coerce Movant into waiving his right to a jury. Trial counsel additionally testified that his reasoning for going into detail on Movant's prior conviction was to reinforce Movant's defense of self-defense in the current case and to blunt its prejudicial effect; specifically, counsel stated that he thought the details of the past offense — namely, that Movant shot his mother's boyfriend in self-defense after being attacked with a knife, and subsequently pleaded guilty to aggravated assault — would both support Movant's current claim of self-defense by demonstrating Movant's heightened sensitivity to knives, and lessen the prejudicial effect of simply informing the court that Movant had previously been convicted of aggravated assault without explaining the self-defense aspect of that crime.

The motion court, thereafter, issued findings of fact and conclusions of law denying Movant's motion on all issues. Movant now appeals.

Standard of Review

In reviewing appeals of Rule 29.15 motions for post-conviction relief alleging ineffective assistance of counsel, this court is limited to a determination of whether or not the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Glass v. State, 227 S.W.3d 463, 468 (Mo. banc 2007). The "[f]indings and conclusions [of the motion court] are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made." Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). It is incumbent upon the movant in a post-conviction motion to prove his claims for relief by a preponderance of the evidence. Rule 29.15(i).

Discussion

In order to prevail on a claim of ineffective assistance of counsel, a defendant must first "show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that counsel's actions were competent, and it is the defendant's burden to overcome that presumption. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2007). Generally, courts "should refrain from employing hindsight when reviewing counsel's conduct at trial." State v. Williamson, 877 S.W.2d 258, 262 (Mo. App.1994). Additionally, a defendant must also show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. If a movant fails to satisfy either the performance prong or the prejudice prong of the Strickland test, relief will be denied. Lawrence v. State, 160 S.W.3d 825, 829 (Mo.App.2005).

Waiver of Jury Trial

Movant's first point asserts that the motion court clearly erred in finding that Movant's trial counsels "did not pressure movant, or coerce or improperly induce him, to waive a jury."

The right to a jury trial is a fundamental right, guaranteed to defendants by both the Sixth and Fourteenth Amendments of the federal Constitution, and Article I, sections 18(a) and 22(a) of the Missouri Constitution. Section 22(a) of the Missouri Constitution provides that "in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, whose finding shall have the force and effect of a verdict of a jury." In felony cases, that waiver must be in open court and entered into the record. Rule 27.01(b). Any waiver of a jury trial must be knowing, voluntary, and...