Edgar v. State

• Decision Date: 20 July 2004
• Docket Number: No. WD 61991.,WD 61991.
• Citation: 145 S.W.3d 458
• Parties: Fred EDGAR, Jr., Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

145 S.W.3d 458

Fred EDGAR, Jr., Appellant, v. STATE of Missouri, Respondent.

No. WD 61991.

Missouri Court of Appeals, Western District.

July 20, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 31, 2004.

Application for Transfer Denied October 26, 2004.

Appeal from the Circuit Court, Jackson County, K. Preston Dean, II, J.

Andrew A. Schroeder, Appellate Defender, Kansas City, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before: ULRICH, P.J., EDWIN H. SMITH and LOWENSTEIN, JJ.

EDWIN H. SMITH, Judge.

Fred Edgar appeals from the circuit court's order overruling, after an evidentiary hearing, his Rule 29.15¹ motion for post-conviction relief. After a jury trial in the Circuit Court of Jackson County, the appellant was convicted of ten counts: Count I for assault in the first degree, § 565.050;² Count II for armed criminal action (ACA), § 571.015; Count III for felonious restraint, § 565.120; Count IV for ACA, § 571.015; Count V for forcible sodomy, § 566.060, Count VI for ACA, § 571.015; Count VII for assault in the first degree, § 565.050; Count VIII for ACA, § 571.015; Count IX for kidnapping, § 565.110; and Count X for ACA, § 571.015. As a result of his convictions, he was sentenced, as a prior offender, § 558.016, to a total of seventy years in the Missouri Department of Corrections.³

In his sole point on appeal, the appellant claims that the motion court erred in denying his Rule 29.15 motion, after an evidentiary hearing, because, on the evidence presented at the motion hearing, the court was clearly mistaken in finding and concluding that he was not denied effective assistance of counsel for trial counsel's failure to challenge a juror for cause.

We affirm.

Facts

On October 16, 1996, a ten-count indictment was handed down by a Jackson County grand jury, charging the appellant with one count of felonious restraint, § 565.120, one count of forcible sodomy, § 566.060, one count of kidnapping, § 565.110, two counts of assault in first degree, § 565.050, and five counts of ACA, § 571.015. The charges arose from events occurring on September 17, 1996, in which the appellant brutally assaulted Candace Woods, nearly killing her. On January 3, 1997, an information in lieu of indictment was filed, charging the appellant with the same ten counts found in the indictment, but as a prior offender.

The appellant's case proceeded to a jury trial on January 12, 1998. During voir dire, defense counsel questioned the panel concerning the State's burden of proof:

MR. TEJEDA: Does everyone understand the concept by rebutting, essentially that means that we don't have to prove or disprove what the State is saying? And so it goes to an issue of credibility. And that's an important concept, a concept that governs all trials. Does everyone understand that concept? Does anyone feel that we need further discussion to assure that everyone has a firm grasp of it? Mr. Robinson?

ROBINSON: Yes. It just seems to me that the defendant would at least make some type of a statement, some explanation for their side of the story —

MR. TEJEDA: Okay. Well, and that's —

ROBINSON: And if they do not, I don't know, it would leave doubts in my mind as to why they didn't.

MR. TEJEDA: Okay. Anyone else who shares that same opinion or that the defense should present evidence? There are no right or wrong answers. We need to examine how you feel about it and there are no right or wrong answers with regard to this. Is there anyone else who feels the same way? Okay. I'm seeing a number of hands here. Let's see, Ms. Garrett?

GARRETT: Karen Garrett.

Shortly thereafter, the court adjourned for the evening. The following morning the defense continued its voir dire:

MR. TEJEDA: Ladies and gentlemen, yesterday when we broke, we were discussing burden of proof. I don't mean to get off on this and I'll just — this is the last question. I just need to make sure that everyone understands.

Is there anyone here who expects and insists that the defense should present any evidence in this case? Is there anyone who would automatically find my client guilty just because the defense decided not to present any evidence? And I'm not seeing any hands.

Ladies and gentlemen, one of the other principles that goes in hand with the burden of proof is the right not to testify. In this country of ours under the American Jurisprudence system, each of us has the right to either take the stand and testify or not testify and nothing negative can be inferred from that. That's one of the great things about being in America. Each of us has that right and it's guaranteed to each of us.

Now, should my client, Mr. Edgar, after he consults with both myself and Mr. Schlegel, if he should decide not to take the stand, is there anyone who would hold that against him? And I'm not seeing any hands this morning.

Let me ask the question this way. Is there anyone who, if Mr. Edgar chose not to take the stand, would automatically find him guilty simply because he chose to exercise that right and not take the stand. And, again, I'm not seeking any hands.

Venireperson Robinson was eventually excused from service, at his request, due to chronic back pain. However, Garrett's qualifications to serve on the jury were never challenged, and she was later seated as a juror in the case.

On January 16, 1998, the jury found the appellant guilty of all ten counts. On February 10, 1998, the appellant filed a motion for a new trial, which was denied on March 6, 1998. On that same date, the trial court sentenced the appellant, as a prior offender.

The appellant appealed to this court in State v. Edgar, WD 55627, 39 S.W.3d 112. On January 28, 2000, we issued a mandate affirming his convictions. Subsequently, the appellant timely filed a pro se Rule 29.15 motion, with counsel being appointed on December 14, 2000. On October 9, 2001, counsel filed an amended motion for post-conviction relief, alleging, inter alia, that trial counsel was ineffective for failing to challenge Garrett for cause, contending that she was not fair and impartial in that she had indicated in voir dire that she would have "doubts" if the appellant did not present evidence, including him testifying.

On July 6, 2001, the motion court held an evidentiary hearing on the appellant's amended Rule 29.15 motion. Trial counsel testified that there was no strategy involved in failing to challenge Garrett, and that if she was not subsequently rehabilitated, his failure to do so was an oversight. However, he could not recall whether he attempted to rehabilitate Garrett.

On September 3, 2003, the motion court entered its findings of facts and conclusions of law denying the appellant's Rule 29.15 motion. In its conclusions, the motion court found that defense counsel had in fact rehabilitated Garrett, and, consequently: "There was no basis to excuse Ms. Garrett for cause. Counsel was not obligated to seek her removal. Counsel is not obligated to do meaningless acts."

This appeal followed.

Standard of Review

Our review of a motion court's denial of a Rule 29.15 motion for post-conviction relief is limited to a determination of whether the court's findings and conclusions issued in support thereof, as required by Rule 29.15(j), are clearly erroneous. Rule 29.15(k); State v. Clay, 975 S.W.2d 121, 140 (Mo. banc 1998). Findings and conclusions are clearly erroneous only if, after a review of the entire record, the court is left with a definite and firm impression that a mistake has been made. Clay, 975 S.W.2d at 140.

I.

In his sole point on appeal, the appellant claims that the motion court erred in denying his Rule 29.15 motion, after an evidentiary hearing, because, on the evidence presented at the motion hearing, the court was clearly mistaken in finding and concluding that he was not denied effective assistance of counsel for trial counsel's failure to challenge a juror for cause. Specifically, he claims that the evidence clearly established that his trial counsel was deficient for failing to challenge for cause juror Garrett after she had agreed in voir dire with a fellow venireperson's statement that: "[i]t just seems to me that the defendant would at least make some type of a statement, some explanation for their side of the story — [a]nd if they do not, I don't know, it would leave doubts in my mind as to why they didn't." This statement was made in response to a line of questioning by the defense as to whether the members of the venire could follow the law with respect to the fact that the State had the burden of proof and that, therefore, the defense was not required to present any evidence to "rebut" the State's case, including the fact that the appellant was not required to testify.

In order to prevail on a claim of ineffective assistance of counsel, the movant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), requiring proof by a preponderance of the evidence that: (1) counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances; and (2) the movant was prejudiced as a result. State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and the movant's claim of ineffective assistance of counsel must fail. Id. To satisfy the performance prong, the movant 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. Id. To satisfy the prejudice prong, a movant must show a reasonable probability that, but for counsel's alleged deficiencies, the result of the proceeding would have been different. Id...