Gray v. State

• Decision Date: 11 September 2012
• Docket Number: No. ED 97667.,ED 97667.
• Citation: 378 S.W.3d 376
• Parties: Quintin C. GRAY, Sr., Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

378 S.W.3d 376

Quintin C. GRAY, Sr., Appellant,

v.STATE of Missouri, Respondent.

No. ED 97667.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 11, 2012.

Lisa M. Stroup, Assistant Public Defender, St. Louis, MO, for Appellant.

Chris Koster, Attorney General, John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.

KURT S. ODENWALD, Judge.

Introduction

Quintin C. Gray, Sr. (“Gray”) appeals from the motion court's denial, without an evidentiary hearing, of his Rule 29.15¹ motion for post-conviction relief. Gray first contends that the motion court erred in denying his motion for post-conviction reliefwithout an evidentiary hearing because trial counsel was ineffective by failing to preserve for appellate review the issue of whether his Fourth Amendment right to be free from unreasonable searches and seizures was violated. Gray also claims that the motion court erred when it did not issue findings of fact and conclusions of law on the second point of his motion for post-conviction relief. In his second point, Gray contends that trial counsel was ineffective when his cross-examination of a witness opened the door to damaging testimony regarding the drug possession and charges made against the person accompanying Gray at the time of his arrest. We affirm the trial court's judgment with regard to Point 1, and remand Point 2 to the trial court for findings of fact and conclusions of law in accordance with Rule 29.15(j).

Factual and Procedural Background

When viewed in the light most favorable to the verdict, the following evidence was adduced at trial. On April 16, 2008, Officer Jason Sapienza, Officer Robert Orton, and Officer David Feldmeier of the St. Louis Metropolitan Police Department were investigating complaints of drug sales in an apartment complex at 4200 Meramec in the City of St. Louis. As part of the Tactical Deployment Unit, the officers were not dressed in uniform, but were wearing dark shirts with the word “police” marked across the front and back of the shirt in large, white letters.

On the second floor of the apartment building, Officer Sapienza and Officer Orton observed two men exiting Apartment 2J. When the men saw the police officers, they immediately turned and walked back toward the apartment. One of the men, Gray, put his hand at his right side near his waistband as he turned away from the officers. The movement caused Officer Sapienza to believe that Gray was concealing a weapon in his waistband. Concerned that Gray was armed, Officer Sapienza immediately put him in handcuffs to ensure officer safety. He then conducted a pat-down of Gray's waist, which revealed a loaded gun.

Gray was arrested and subsequently indicted by a grand jury on one felony count of unlawful use of a weapon in violation of Section 571.030 ² and one misdemeanor count of possession of a defaced firearm in violation of Section 571.050. Gray filed a motion to suppress evidence, seeking to exclude any and all articles seized and intended to be used against him. Gray alleged that the gun was obtained pursuant to an unlawful search and seizure because Officer Sapienza conducted the search without a warrant and without probable cause. Gray further alleged that the search did not fall within the scope of any exception to the warrant requirement because the officers had no reasonable suspicion that criminal activity was underfoot. After a hearing, the trial court denied Gray's motion to suppress.

At trial, the State sought to admit into evidence the gun, the gun's magazine, and the ammunition that was removed from the gun. The only objection made by Gray's counsel regarding the introduction of this evidence related to improper chain of custody, which the trial court overruled. Trial counsel raised no constitutional arguments regarding the admission of this evidence at trial.

On cross-examination, trial counsel asked Officer Sapienza whether there were any complaints regarding narcotics sales from Apartment 2J. Trial counsel also asked Officer Sapienza whether he saw Gray or anyone else selling drugs that day. Officer Sapienza answered each question in the negative.

Prior to conducting its redirect examination of Gray, the State contended that trial counsel's questions to Officer Sapienza regarding any drug sales in the building implied the absence of any drugs in the building. As such, the State argued that trial counsel opened the door to allow questions regarding the man who was arrested with Gray and the drugs found in his possession. The trial court agreed. On redirect examination, the State elicited testimony that the man arrested with Gray was arrested for two counts of possession of a controlled substance and one count of possession of drug paraphernalia. During closing arguments, the prosecutor then stated: “Street-level crimes are the things that affect the quality of life in the City of St. Louis, drugs, guns. It starts with drugs and guns. It all starts with drugs and guns, and that unit was out there trying to get them off the street, and they did....”

The jury found Gray guilty of Count I, unlawful use of a weapon. Defendant filed a motion for judgment of acquittal or, in the alternative, motion for a new trial on April 15, 2009. The trial court entered a Memorandum and Order denying Defendant's motion for new trial, finding that the circumstances provided the officers with a reasonable belief that Gray was armed and an “articulable suspicion” that authorized the “investigative stop.” The trial court found that because Gray's suspicious behavior suggested he was avoiding the officers and attempting to conceal or reach for an object that could have been a weapon, Officer Sapienza was justified in detaining Defendant.

Gray was sentenced to a term of four years in the Missouri Department of Corrections. On direct appeal, we affirmed Gray's conviction and sentence. State v. Gray, 317 S.W.3d 99 (Mo.App. E.D.2010). On December 6, 2010, Gray timely filed a pro se motion for post-conviction relief pursuant to Rule 29.15. Thereafter, appointed counsel filed an amended motion, which the motion court denied without an evidentiary hearing. This appeal follows.

Points on Appeal

Gray presents two points on appeal. First, Gray claims that the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief because trial counsel was ineffective for failing to preserve for appellate review the issue of whether the gun, magazine, and ammunition introduced as evidence at trial were obtained as the result of an unlawful search and seizure. Gray argues that had trial counsel objected to the introduction of the evidence on said constitutional grounds and preserved those grounds for appeal, a reasonable probability exists that this Court would have reversed his conviction on direct appeal.

Second, Gray claims that the motion court clearly erred in denying his motion for post-conviction relief without addressing Gray's second point in its findings of fact and conclusions of law in violation of Rule 29.15(j)³. Gray's second point alleged that trial counsel was ineffective for opening the door to testimony regarding the drug possession and charges made against the man with Gray at the time of his arrest. As a result, Gray claims the motion court's judgment must be reversed and remanded for a hearing or, in the alternative, for findings of fact and conclusions of law.

Standard of Review

This Court reviews the denial of a Rule 29.15 motion for post-conviction relief only to determine whether the motion court's findings of fact or conclusions of law are “clearly erroneous.” Rule 29.15(k); Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). The motion court's findings are presumed correct and will only be overturned if the ruling leaves the appellate court with a “definite and firm impression that a mistake has been made.” Zink, 278 S.W.3d at 175.

Discussion

I. Trial counsel was not ineffective for failing to preserve for appellate review the issue of whether the search and seizure was a violation of the Fourth Amendment.

In his first point, Gray claims that the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief, without an evidentiary hearing, because trial counsel was ineffective for failing to preserve for appellate review the lawfulness of the search and seizure that occurred when the police detained him. Gray claims he was prejudiced because, had counsel timely objected, there was a reasonable probability this Court would have reversed his conviction on appeal.

The motion court correctly noted in its order and judgment that the failure of trial counsel to preserve error for appellate review is not cognizable in a Rule 29.15 motion. Strong v. State, 263 S.W.3d 636, 646 (Mo. banc 2008). Post-conviction relief for ineffective assistance of counsel is limited to consideration of alleged errors that denied defendant a fair trial. Id.; see Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Although Gray's claim that trial counsel was ineffective for failing to preserve an issue for appeal is not cognizable under a Rule 29.15 motion for post-conviction relief, Gray could have characterized this point by arguing that, had trial counsel objected at trial to the admission of the gun on Fourth Amendment grounds, there was a strong likelihood the evidence would have been excluded, and that the jury would likely have acquitted him. Were we to find that trial counsel's inaction possibly impacted the fairness of Gray's trial, Gray would be entitled to post-conviction relief, but only if Gray proved by a preponderance of the evidence that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances and that the deficient performance prejudiced him. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) ( citing Strickland v. Washington, 466 U.S. 668, 687–92, 104 S.Ct. 2052, 80...