Fonville v. State

Decision Date23 October 2018
Docket NumberWD 80829
Citation563 S.W.3d 794
Parties Todd B. FONVILLE, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

S. Kate Webber, Kansas City, MO, for appellant.

Richard A. Starnes, Jefferson City, MO, for respondent.

Before Division Three: Gary D. Witt, Presiding Judge, Cynthia L. Martin, Judge and Anthony Rex Gabbert, Judge

Cynthia L. Martin, Judge

Todd B. Fonville ("Fonville") appeals from the denial of his Rule 29.15 motion following an evidentiary hearing. Fonville argues that the motion court clearly erred in denying his motion because, if the motion court would have admitted the testimony of a juror about misconduct that occurred during deliberations, the motion court would have concluded that Fonville received ineffective assistance of counsel when trial counsel's motion for new trial failed to raise the issue of jury misconduct. Finding no error, we affirm.

Factual and Procedural History

The State charged Fonville with two counts of first-degree murder, or in the alternative, two counts of second-degree felony murder; two counts of armed criminal action; leaving the scene of the accident; and knowingly burning. The charges stemmed from the deaths of Jose Morales ("Morales") and Debeney Kreiling ("Kreiling"). After a five-day trial, the jury began deliberations on Monday, July 30, 2012, at 12:35 p.m. and continued deliberations until approximately 5:00 p.m.

Deliberations resumed the next morning. At approximately 10:25 a.m., the jury sent a note asking, "How do we move on if one person is hung on instruction 21/22 when instruction 3 clearly states not to single out?" The parties agreed that the trial court would give the following response: "The jury will be guided by all the instructions as given by the Court in their entirety." The trial court gave the agreed upon response at 10:45 a.m.

The jury sent another note at 11:00 a.m. which asked, "If we are [a] hung jury on count 1 Instruction 5 can we still make a finding on Count 1 Instruction 6. OR another way of putting it--If we can't agree on Murder 1 can we still make a decision on murder 2?" The trial court brought the jury back in to the courtroom and advised that a response to the jury's latest question would be provided after the lunch break. Before the trial court released the jury for lunch, it asked the foreperson, "[W]ithout telling me what the verdicts are or which counts ... has the jury reached a unanimous verdict on any counts, again, without telling me which counts or what those verdicts are, can you answer yes or no?" The foreperson answered, "Yes, we have."

During the lunch break, the parties agreed to answer the jury's question as follows: "The Court urges the jury to reach unanimous verdicts on all counts in accordance with Instruction 25. However, if you are unable to reach [a] unanimous verdict on Instruction 5, you may then consider whether the defendant is guilty under Instruction 6." The trial court gave this agreed upon response to the jury after the lunch break.

The jury advised the court that it had reached a verdict around 2:30 p.m. The trial court asked the foreperson, "Have verdicts been returned on all counts?" The foreperson responded, "No." The trial court then asked, "Based on your indication that verdicts have been reached, is the jury hopelessly deadlocked on certain counts, one or more counts?" The foreperson responded in the affirmative. The trial court instructed the jury to return to the jury room while the trial court discussed how to proceed with the parties.

The trial court advised the parties that, when the bailiff checked on the jurors, "there were jurors that were visibly upset and crying," and "one or more jurors had indicated that they're not coming back tomorrow." The trial court then told the parties:

In an attempt to avoid a potential mistrial in the entire case and knowing that we have at least unanimous verdicts with respect to certain counts, it would be the intention of the Court to not verbally instruct but provide to the jury Instruction 27. Instruction 27 is a non-MAI instruction submitted by the Court patterned after the Eighth Circuit pattern instructions partial verdict form instruction.

The proposed Instruction 27 read:

Members of the jury, if you have reached unanimous agreement as to some of the counts, you may return a verdict as to those counts, and then continue deliberating on the others.
If you do choose to return a verdict as to some of the counts now, that verdict will be final. You will not be able to change your minds about it later on.

Fonville's attorney responded that she would prefer to give the hammer instruction, and that although she did not object to Instruction 27 as to form, she did object to the instruction in general. The trial court submitted Instruction 27 to the jury over Fonville's objection at approximately 2:40 p.m.

The jury indicated that it had reached verdicts shortly before 4:00 p.m. The jury found Fonville guilty of second-degree felony murder for Morales's death; first-degree murder for Kreiling's death; both counts of armed criminal action; leaving the scene of an accident; and knowingly burning. The trial court polled the jury with the consent of both parties, and all jurors confirmed that each of the jury's verdicts were the verdicts of that juror. The trial court entered its judgment of conviction and imposed sentences. Fonville's trial counsel filed a motion for new trial, arguing that the trial court erred in submitting Instruction 27 rather than MAI-CR 3d 312.10, the "hammer" instruction. The trial court denied the motion for new trial.

On direct appeal, Fonville argued that it was error to submit Instruction 27 because the instruction suggested that the jurors should compromise to reach a verdict on the remaining counts. State v. Fonville , 433 S.W.3d 477, 481 (Mo. App. W.D. 2014). We affirmed Fonville's convictions and sentences. Id. at 483.

Fonville then filed an untimely pro se Rule 29.15 motion. The motion court excused the untimeliness of Fonville's pro se motion, finding that the active interference doctrine applied.1 Appointed counsel filed an amended Rule 29.15 motion ("Amended Motion"). The Amended Motion alleged that Fonville received ineffective assistance of counsel because trial counsel "fail[ed] to adduce evidence during the motion for new trial that at least one juror had failed to follow the judge's instructions and had reached a unanimous verdict due to coercion, intimidation or compromise."2 The Amended Motion argued that reasonably competent counsel would have attached affidavits, presented oral testimony from the discharged jurors at the trial court's hearing on the motion for new trial, or both. The Amended Motion claimed that, while the motion for new trial did not specifically allege juror misconduct, juror misconduct was encompassed within the asserted claim that the trial court erred in failing to give the "hammer" instruction. Alternatively, the Amended Motion argued that trial counsel was ineffective because she should have raised juror misconduct in the motion for new trial.

During the evidentiary hearing on the Amended Motion, trial counsel testified about her memory of the events during the jury's deliberations, including the jury's report that it was "hopelessly deadlocked," the bailiff's reports of apparent discord between the jurors, and the trial court's decision to give Instruction 27.3 Trial counsel testified that she did not consider contacting the jurors before filing the motion for new trial, that she had no strategic reason for failing to do so to determine whether the verdict had been coerced, and that she had no strategic reason for either failing to call jurors to testify in connection with the motion for new trial or for failing to attach jurors' affidavits to the motion for new trial. However, trial counsel explained that she had no reason to suspect that there had been juror misconduct because polling of the jury revealed that the jury's verdicts were unanimous.

During the hearing on the Amended Motion, Fonville attempted to call H.P., a juror from his criminal trial, as a witness. The State objected that H.P.'s testimony was inadmissible evidence of what occurred during jury deliberations. The motion court sustained the State's objection. Fonville made an offer of proof.

During the offer of proof, H.P. testified that, if asked, she would have testified at a hearing on the motion for new trial about what she witnessed in the jury room. H.P. then testified about her observations about hostilities in the jury room directed particularly at a lone holdout juror,4 though H.P. confirmed that at no point during the deliberations did any juror use ethnic or religious slurs.

The motion court issued findings of fact, conclusions of law, and a judgment ("Judgment") denying the Amended Motion. The motion court concluded that there was no legal basis for Fonville's claim that he received ineffective assistance of counsel based on his trial counsel's failure to adduce evidence during the hearing on the motion for new trial that at least one juror was coerced, intimidated, or compromised to reach a unanimous verdict in violation of the jury instructions. The motion court concluded that H.P.'s testimony did not fall into any of the exceptions to the general rule that "a jury verdict cannot be impeached through juror testimony regarding improper motives or other misconduct that transpired in the jury deliberation room," and thus would not have been sufficient to permit relief pursuant to the motion for new trial even had it been presented to the trial court.

Fonville appeals.

Standard of Review

Our review of the motion court's denial of a Rule 29.15 motion is "limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous." Rule 29.15(k). " ‘The motion court's findings...

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3 cases
  • State v. Perkins
    • United States
    • Missouri Court of Appeals
    • March 17, 2020
    ...courts generally hold a juror may not impeach a unanimous, unambiguous verdict, two narrow exceptions exist." Fonville v. State, 563 S.W.3d 794, 801 (Mo. App. W.D. 2018) ; see also Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623, 642 n.8 (Mo. banc 2013). The exception that applies......
  • Reed v. State
    • United States
    • Missouri Court of Appeals
    • April 26, 2022 has long held that a juror may not impeach a unanimous, unambiguous verdict after it is rendered." Fonville v. State , 563 S.W.3d 794, 800 (Mo. App. W.D. 2018) (quoting State v. West , 425 S.W.3d 151, 155 (Mo. App. W.D. 2014) ) (internal quotations omitted). "Use of information obtained......
  • Cranford v. State, WD 81558
    • United States
    • Missouri Court of Appeals
    • May 28, 2019
    ... ... pleas."To establish that he received ineffective assistance of counsel, [a movant] must prove by a preponderance of the evidence that [plea] counsel failed to exercise the level of skill and diligence of a reasonably competent attorney and that [the movant] was prejudiced by that failure." Fonville v. State , 563 S.W.3d 794, 799-800 (Mo. App. W.D. 2018)."The validity of a plea of guilty depends on whether it was made voluntarily and intelligently, which means, inter alia , that the defendant must enter the plea with knowledge of the direct consequences of the plea." Reynolds v. State , 994 ... ...

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