Greer v. State

• Decision Date: 20 August 2013
• Docket Number: No. ED 98913.,ED 98913.
• Citation: 406 S.W.3d 100
• Parties: Tracy E. GREER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

406 S.W.3d 100

Tracy E. GREER, Appellant,

v.STATE of Missouri, Respondent.

No. ED 98913.

Missouri Court of Appeals,

Eastern District,

Division One.

Aug. 20, 2013.

Samuel Buffaloe, Columbia, MO, for Appellant.

Chris Koster, Daniel N. McPherson, Jefferson City, MO, for Respondent.

ROY L. RICHTER, Presiding Judge.

Tracy Greer (“Movant”), appeals from the denial of his Rule 29.15 post-conviction relief motion without an evidentiary hearing. In State v. Greer, 348 S.W.3d 149 (Mo.App. E.D.2011) this Court affirmed in part and reversed and remanded in part Movant's underlying convictions. Movant now argues that his claims of ineffective assistance of counsel entitle him to post-conviction relief. We affirm in part and reverse and remand in part.

I. BACKGROUND

A jury convicted Movant of three counts of assault in the first degree, in violation of Section 565.050, RSMo 2000; three counts of armed criminal action, in violation of Section 571.015, RSMo 2000; six counts of endangering a corrections employee, in violation of Section 565.085, RSMo Supp.2006; and one count of possession of a weapon in a correctional facility, in violation of Section 217.360, RSMo Supp.2006. The trial court sentenced Movant as a prior and persistent offender to a total of twenty-five (25) years' imprisonment. On appeal, this Court remanded the case to correct the sentences on the six counts of endangering a corrections employee, but affirmed the judgment in all other respects. Greer, 348 S.W.3d at 158. In Greer, supra, we set forth in detail the underlying facts which resulted in Movant's aforementioned convictions. Therefore, in this opinion we will recount only those facts relevant to the issues presented in the Rule 29.15 post-conviction appeal.

Movant filed a timely motion for post-conviction relief pursuant to Rule 29.15. Counsel was appointed to represent Movant, and an amended motion was filed. The amended motion alleged, for various reasons, Movant was provided with ineffective assistance by his Trial Counsel. The amended motion was denied without an evidentiary hearing and the motion court issued its Findings of Fact, Conclusions of Law and Order.

This appeal now follows.

II. DISCUSSION

Movant advances two points on appeal. In his first point, Movant argues the motion court erred in denying him an evidentiary hearing on his Rule 29.15 postconviction relief claim, in that Trial Counsel was ineffective for failing to object to certain remarks proffered during the State's closing argument, in violation of the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. Specifically, Movant contends Trial Counsel was ineffective for failing to object and request a mistrial after the State referred to Movant's physical appearance as “Taliban-looking.”

Next, Movant asserts the motion court erred in denying him an evidentiary hearing on his Rule 29.15 post-conviction relief claim, in that Trial Counsel was ineffective for failing to object to the sentencing court's alleged consideration of Movant's exercise of his constitutional right to proceed to trial when imposing sentence, in violation of the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution.

Standard of Review

Appellate review of a denial of a 29.15 motion for post-conviction relief is limited to determine whether the motion court's “findings of fact and conclusions of law are clearly erroneous.” Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). This Court deems a motion court's findings of fact and conclusions of law clearly erroneous only if a full review of the record leaves us with a definite and firm impression that a mistake has been made. Clark v. State, 261 S.W.3d 565, 568 (Mo.App. E.D.2008).

Pursuant to Rule 29.15, an evidentiary hearing is not required “[i]f the court shall determine the motion and the files and records of the case conclusively show that the movant is entitled to no relief[.]” Rule 29.15(h). Accordingly, the motion court is only required to grant an evidentiary hearing on a Rule 29.15 motion for post-conviction relief if the movant satisfies three requirements: (1) the movant must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant. Matthews v. State, 175 S.W.3d 110, 113 (Mo. banc 2005).

When, as in the present case, the requested evidentiary hearing involves a claim of ineffective assistance of counsel, the movant must show by a preponderance of the evidence both that the counsel's performance failed to conform to the degree of skill, care and diligence of a reasonably competent attorney and that such deficiency prejudiced the movant. Dickerson v. State, 269 S.W.3d 889, 892 (Mo. banc 2008); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see alsoRule 29.15(i). First, the performance component requires counsel to exercise the “skill and diligence that a reasonably competent attorney would exercise under similar circumstances.” Sanders v. State, 738 S.W.2d 856, 858 (Mo. banc 1987) (quoting Thomas v. Lockhart, 738 F.2d 304, 307 (8th Cir.1984)) (emphasis in original). Because this Court reviews the reasonableness of trial counsel's conduct not from hindsight but from counsel's perspective at the time of trial, movant must overcome a “strong presumption” that the trial counsel's performance was reasonable and effective. Nelson v. State, 372 S.W.3d 892, 895 (Mo.App. E.D.2012); see also Vogel v. State, 31 S.W.3d 130, 135 (Mo.App. W.D.2000) (“In determining whether counsel's performance was deficient,the courts must refrain from using hindsight to second-guess decisions of trial strategy.”). Second, the prejudice prong requires movant “show there is a reasonable probability that, but for Counsel's errors, the outcome of the proceedings would have been different.” Nelson, 372 S.W.3d at 895.

Analysis

Point I—Closing Argument

In his first point on appeal, Movant alleges the motion court erred in denying him an evidentiary hearing on his Rule 29.15 post-conviction relief claim because he received ineffective assistance of counsel. Specifically, Movant contends Trial Counsel was ineffective for failing to object and request a mistrial after the State referred to Movant's appearance as Taliban-looking during the State's closing rebuttal argument, because that statement was improper and likely to inflame and excite the prejudices of the jury. But for Trial Counsel's failure to object during closing argument, Movant asserts there is a reasonable probability the outcome of his trial would have been different.

Trial counsel is granted vast latitude and judgment about whether or when to make objections. Helmig v. State, 42 S.W.3d 658, 678 (Mo.App. E.D.2001). Merely because a trial counsel failed to object to everything objectionable, does not equate to incompetence. Lung v. State, 179 S.W.3d 337, 342 (Mo.App. S.D.2005). “In many instances seasoned trial counsel do not object to otherwise improper questions or arguments for strategic purposes.” State v. Tokar, 918 S.W.2d 753, 768 (Mo. banc 1996). As such, “[t]he failure to object during closing argument only results ineffective assistance of counsel if it prejudices the accused and deprives him of a fair trial.” Jackson v. State, 205 S.W.3d 282, 290 (Mo.App. E.D.2006). If a movant fails to proffer evidence of prejudice and deprivation of a fair trial, a trial counsel's failure to object constitutes only a procedural default, precluding appellate or collateral relief. Helmig, 42 S.W.3d at 679;see also Bradley v. State, 292 S.W.3d 561, 564 (Mo.App. E.D.2009) (“Ineffective assistance of counsel is rarely found in cases where trial counsel has failed to object.”).

During the State's closing rebuttal argument, the prosecutor stated to the jury the following:

Now, it's really sad when electronic equipment fails. The camera didn't work. There it is. We laid it out there for you. It didn't work, okay. Things don't work sometimes. You don't always jump to some mad conspiracy when things don't work, you know, when it's a corrections officer.... What do you want them to do? “The camera doesn't work. Hey, I guess we'll leave these two heads wrapped up, Taliban looking guys, in their cells with these assortment of shanks and let them sort it out.” Huh? Is that what they should have done. “The camera doesn't work; nobody will believe us. Let's just leave them in there.” Are you kidding me? Are you kidding me? It didn't work.

In order to understand the import of the State's rebuttal argument, it is important for this Court to review the entire record, not just an isolated segment. State v. McFadden, 369 S.W.3d 727, 747 (Mo. banc 2012). Here, the State's reference to “Taliban” was in response to the defense's closing argument suggesting the State's witnesses had lied about the failed videotaping. Specifically, Defendant, during closing argument, conveyed the idea that the correctional center was attempting to deny the existence of the videotape to cover up their misconduct:

Again, Ladies and Gentlemen, basically this case amounts to the lieutenant and the captain wanting you to take their word for something that a video tape would have more than likely contradicted. Doesn't make sense to hide something that would back you up. Doesn't make sense to hide something that would have proven you didn't use excessive force. That's exactly what happened.

To counter defense counsel's fabrication insinuation made during closing argument, the State made reference, in their rebuttal closing argument, to Corrections Officer Charles Boone's (“Boone”) testimony:

Q [Prosecutor]: All right. And, what observation did you make about Tracy Greer?

A [by Boone]: Tracey Greer...