Fisher v. State

• Decision Date: 27 December 2011
• Docket Number: No. WD 73269.,WD 73269.
• Citation: 359 S.W.3d 113
• Parties: Donnie L. FISHER, Respondent, v. STATE of Missouri, Appellant.
• Court: Missouri Court of Appeals

359 S.W.3d 113

Donnie L. FISHER, Respondent,

v.STATE of Missouri, Appellant.

No. WD 73269.

Missouri Court of Appeals, Western District.

Dec. 27, 2011.

Chris Koster, Attorney General, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Appellant.

Mark A. Grothoff, Assistant State Public Defender, Columbia, MO, for Respondent.

Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and CYNTHIA L. MARTIN, Judges.

MARK D. PFEIFFER, Presiding Judge.

The State of Missouri (“the State”) appeals from the judgment of the Circuit Court of Randolph County, Missouri (“motion court”), granting Donnie L. Fisher's (“Fisher”) Rule 29.15 amended motion for post-conviction relief. The motion court found that Fisher's appellate counsel provided ineffective assistance by failing to raise as error, on direct appeal, the trial court's refusal to instruct the jury on self-defense and on lesser-included offenses for the charges of first-degree assault of a law enforcement officer. The motion court vacated Fisher's convictions on first-degree assault of a law enforcement officer and armed criminal action and placed the case on the trial setting docket. Because the motion court's ruling is clearly erroneous, we reverse.

Facts and Procedural Background¹

Fisher and Roy Sanford (“Sanford”) escaped from a Georgia prison. They stole a truck and a sawed-off shotgun and were considered armed and dangerous. The men returned to Huntsville, Missouri, where they hid and barricaded themselves in an unoccupied mobile home, which was owned by an acquaintance.

Aside from the fact that they were escaped prison convicts who knew and expected law enforcement would pursue and attempt to apprehend them, Fisher had seen his and Sanford's mug shots on a local television newscast and knew that the police in the area of the television viewing area (which included Huntsville) were actively looking for them and were closing in on the prison escapees. Other than law enforcement related personnel—which Fisher and Sanford knew and expected were lawfully looking for them—there was no other evidence adduced at trial of any other person the two escaped convicts believed might be unlawfully attempting to find and harm them.

At trial, Fisher stipulated that he and Sanford possessed a sawed-off shotgun and that they had made statements that they would not return to prison alive. In fact, at all relevant times, Fisher carried in a pocket on his person a letter which stated, in pertinent part:

To whom it may concern: Upon my capture, or should I say death, because that's what it's got to be, I choose to die rather than live like an animal in the midst of n[* * *]ers. My only request is that I ask to be buried in Owensville, Missouri, right beside my son. I want the tombstone to say, “Too fast to live, too young to die,” with a pistol on the front. Don't forget the little vase for flowers....

Fisher and Sanford remained in the mobile home for seven days before the owner informed law enforcement officers of the prison escapees' location. After warning the police that Fisher and Sanford were armed and had a police scanner, the owner provided law enforcement officers with a key to the mobile home and gave them permission to search the mobile home. Initially, the police officers (there were a total of five officers) attempted to use the key to gain access to the mobile home to capture the escapees without incident, but the front door entrance was barricaded and the back door could only be partially opened due to a chain locking mechanism.

Next, the law enforcement officers deployed non-lethal tear gas in an effort to flush the escapees out of the mobile home for apprehension. Because the officers were aware that Fisher and Sanford might have been in possession of a police scanner and that the escapees had indicated that they would not be taken into custody alive, the officers limited all radio traffic so as not to disclose their presence and tip off Fisher and Sanford that the police were coming to arrest them. At 5:30 a.m., Fisher and Sanford were asleep (but soon awakened) when the officers fired a total of sixteen canisters of tear gas through each of the windows of the mobile home (two canisters per window) with a 12–gauge shotgun. At trial, Fisher testified that Sanford stated “they” are using the tear gas to drive us out of the mobile home. Fisher testified that he responded to Sanford: “Man, I ain't going.”

Fisher and Sanford covered their faces with towels to avoid the effects of the tear gas and did not exit the mobile home. The officers waited approximately thirty minutes for the tear gas to take effect and force the escapees out, but to no avail. Shortly thereafter, several police officers approached the rear door of the mobile home to attempt to gain entry by prying it open with a “hooligan tool.” As the first police officer began to pry the rear door open, Fisher heard the noise at the rear door and fired the sawed-off shotgun in that direction twice, hitting the officer. The officer attempted to retreat, but was hit by a third shotgun blast—at which point the officer yelled, “Officer has been shot!” Two other police officers attempted to rescue their colleague and both officers were hit by Fisher's gunfire. The shootout between the police and the escapees then ensued; Fisher was ultimately shot in the shoulder and dropped the shotgun; the police scanner registered the communication of “Officers down”—which was heard by the escapees; Fisher suggested to Sanford that they surrender; Sanford picked up the sawed-off shotgun and fired two or three more shots; then, the escapees surrendered. Though none of the officers were killed, several were severely injured.

At trial, Fisher claimed he and Sanford had no way of knowing that police officers were the ones that had fired the tear gas into the barricaded mobile home he and Sanford were hiding in and that, because he was scared of being shot and killed, he fired the loaded sawed-off shotgun (that he had stolen) in what Fisher argues was lawful self-defense.

Fisher was charged by Felony Information with five counts of assault of a law enforcement officer in the first degree, § 565.081,² and five counts of armed criminal action, § 571.015.

During the jury instruction conference at trial, Fisher tendered self-defense instructions based on MAI–CR 3d 306.06 on the counts for first-degree assault of a law enforcement officer, which were refused by the trial court. Fisher also tendered instructions for second-degree assault of a law enforcement officer on the counts for first-degree assault of a law enforcement officer, which were also refused by the trial court.

The jury found Fisher guilty of all counts of the Information. The trial court sentenced Fisher to life imprisonment on each count of assault and five years imprisonment on each count of armed criminal action, all sentences to run consecutively.

Fisher appealed his convictions. His appellate counsel raised a single point on appeal: that the trial court abused its discretion in compelling him to remain shackled at counsel table when he testified. State v. Fisher, 45 S.W.3d 512, 514 (Mo.App. W.D.2001). This court affirmed the judgment of convictions. Id. at 515.

Subsequently, Fisher filed a Rule 29.15 motion for post-conviction relief, which was later amended by counsel. In his motion, Fisher alleged that his appellate counsel was ineffective for failing to assert on direct appeal that the trial court erred in refusing to submit to the jury: (i) an instruction on self-defense for the assault counts, and (ii) an instruction on the lesser-included offense of assault of a law enforcement officer in the second degree for the assault counts. An evidentiary hearing was conducted.³ The motion court concluded that both of Fisher's points were meritorious and granted his motion, vacating his convictions and ordering the case placed on the trial setting docket.

The State appeals.

Standard of Review

Rule 29.15 is the exclusive procedure by which a person convicted of a felony after trial may seek relief for a claim of ineffective assistance of appellate counsel. Rule 29.15(a). As the movant, Fisher had the burden of proving his claims for relief by a preponderance of the evidence. Rule 29.15(i). Appellate review of the motion court's disposition of a Rule 29.15 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k). “Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made.” Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000).

“A defendant is entitled to effective assistance of appellate counsel.” Storey v. State, 175 S.W.3d 116, 148 (Mo. banc 2005) (citing Evitts v. Lucey, 469 U.S. 387, 396–97, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). The standard for proving ineffective assistance of appellate counsel is high. Middleton v. State, 80 S.W.3d 799, 808 (Mo. banc 2002). In reviewing whether appellate counsel's performance was constitutionally deficient, the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is applied. Anderson v. State, 196 S.W.3d 28, 36 (Mo. banc 2006). “To prevail on a claim of ineffective assistance of appellate counsel, the movant must establish that counsel failed to raise a claim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it.” Tisius v. State, 183 S.W.3d 207, 215 (Mo. banc 2006). The movant must also show prejudice—that “[t]he claimed error [was] sufficiently serious to create a reasonable probability that, if it was raised, the outcome of the appeal would have been different.” Id. (citing Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)).

Analysis

Point I—Refusal to Submit Self–Defense Instruction

In its first Point on appeal, ...