Harding v. State

• Citation: 613 S.W.3d 522
• Decision Date: 29 December 2020
• Docket Number: No. ED 108113,ED 108113
• Parties: Ricky John HARDING, Jr., Appellant v. STATE of Missouri, Respondent
• Court: Missouri Court of Appeals

613 S.W.3d 522

Ricky John HARDING, Jr., Appellant v. STATE of Missouri, Respondent

No. ED 108113

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: December 29, 2020

FOR APPELLANT: Tyler P. Coyle, 1000 West Nifong Bldg 7, Suite 100, Columbia, Missouri 65203.

FOR RESPONDENT: Shaun J. Mackelprang, Eric Schmitt, P.O. Box 899, Jefferson City, Missouri 65102.

Angela T. Quigless, P.J., Kurt S. Odenwald, J., and James M. Dowd, J.

James M. Dowd, Judge

Introduction

Ricky John Harding, Jr., appeals the judgment denying his Rule 29.15 motion for post-conviction relief following his felony convictions for second-degree murder, third-degree domestic assault, four counts of second-degree endangering the welfare of a child, and unlawful possession of a firearm, for which he was sentenced to an aggregate of 45 years.

Factual Background

Harding was convicted following a five-day jury trial for the May 2014 shooting death of Summer Harding ("Victim"). At trial the State proved that Harding killed Victim in her residence by shooting her with a firearm he illegally possessed, namely, a 1911 Colt .45 Pistol, with Victim's four minor children in the home. Harding's defense was that Victim died as a result of an accidental shooting and that Harding was not the proximate cause of her death.

Harding and Victim previously cohabitated and had one child together. That child, as well as Victim's other three minor children, resided with Victim. Just before the murder, Harding and Victim became engaged in an argument at Victim's home near a couch in the family room. Victim's 12-year-old daughter ("Daughter") peeked out from her room into the family room and saw Victim reach into the cushions of the couch for a gun that Harding had hidden there. Daughter saw Victim and Harding struggle over the gun. When Daughter heard a gunshot, she ran out into the family room and saw Victim on the floor bleeding. Daughter did not see Harding shoot Victim. At that point, Harding fled the scene leaving Victim in extremis with the four minor children still in the home.

Harding appealed his convictions and we affirmed the judgment and sentences in State v. Harding , 528 S.W.3d 362 (Mo. App. E.D. 2017) and issued our mandate on October 20, 2017. Harding timely filed his pro se Rule 29.15 motion in October 2017 and appointed post-conviction counsel timely filed an amended motion in March 2017.

Harding's amended motion raised numerous claims for post-conviction relief. After an evidentiary hearing in July 2018, the motion court overruled Harding's amended motion, issued its findings of fact and conclusions of law, and entered its judgment in June 2019.

This appeal follows. Harding claims that the State committed a Brady violation and prosecutorial misconduct in connection with a pre-trial meeting among Daughter, Prosecutor Ashley Turner ("Turner"), and Daughter's Guardian ad Litem. As far as his claims of ineffective assistance of counsel, Harding asserts that counsel was ineffective: (1) in connection with the cross examination and impeachment of Daughter's testimony; (2) for failing to call Becky Shaw to impeach Daughter's testimony; (3) for agreeing to a stipulation that identified Harding's prior felony conviction as a burglary; (4) for not objecting to counselor Timothy Taylor's trial testimony regarding the children's mental health and Harding's abuse of them; and (5) for failing to object to statements made by the prosecutor during closing argument. Finding no error, we affirm.

Standard of Review

Appellate review of a judgment overruling a motion for post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law issued by the motion court are "clearly erroneous." Rule 29.15(k); see also Morrow v. State , 21 S.W.3d 819, 822 (Mo. banc 2000). The motion court's findings and conclusions are presumptively correct and will only be considered clearly erroneous if, after a full review of the record, the appellate court is left with the definite and firm impression that a mistake was made. Id. ; see also State v. Johnson , 968 S.W.2d 686, 695 (Mo. banc 1998). A movant holds the burden of proving his post-conviction claims by a preponderance of the evidence. Ervin v. State , 423 S.W.3d 789, 793 (Mo. App. E.D. 2013).

Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

To succeed on a motion for post-conviction relief due to ineffective assistance of counsel. a movant must show by a preponderance of the evidence: (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform in a similar circumstance, and (2) that he was thereby prejudiced. Johnson v. State , 388 S.W.3d 159, 165-66 (Mo. banc 2012) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052 ). If a movant fails to establish either prong, "then we need not consider the other and the claim of ineffective assistance must fail." Roberts v. State , 535 S.W.3d 789, 797 (Mo. App. E.D. 2017).

To satisfy Strickland's performance prong, a movant must overcome the strong presumption that trial counsel's conduct was reasonable and effective by showing counsel's specific acts or omissions that, under the circumstances, fell outside the wide range of effective assistance. Johnson , 388 S.W.3d at 165 ; see also Marshall v. State , 567 S.W.3d 283, 290 (Mo. App. E.D. 2019). To establish Strickland's prejudice prong, a movant must show there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Johnson, 388 at 165 ; see also McLaughlin v. State , 378 S.W.3d 328, 337.

Discussion

I. The State did not commit a Brady violation or prosecutorial misconduct.

In point one, Harding makes somewhat convoluted claims of prosecutorial misconduct and a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)¹ . His claims stem from an October 24, 2014, pre-trial meeting among prosecutor Turner, Daughter, and Daughter's GAL at the GAL's request because Daughter was nervous about her upcoming testimony at trial.

Harding claims that Turner deliberately failed to disclose this meeting in her response to his motion to compel disclosure of any statements made to prosecutors by any of the children. Harding moved to disqualify Turner on this basis. That motion was denied.

Harding alleges the State's failure to disclose the fact and substance of this meeting violated Brady and Turner's representation that the disclosures were complete was prosecutorial misconduct. Harding also argues that the October 24th meeting was material because it was the subject of his motion to disqualify, and that Turner would have been disqualified if the meeting had been disclosed. For its part, the State argues that Brady is inapplicable and no misconduct occurred because Turner testified on this motion that there was nothing material discussed during the meeting, so there was no Brady information requiring disclosure. We agree.

A. Brady is inapplicable.

Pursuant to Brady , due process is violated where the State fails to disclose evidence in its possession which is favorable to the accused and is material to either guilt or punishment. 373 U.S. at 85, 83 S.Ct. 1194 (citing U.S.C.A. Const. Amend. 14 ); see also Mo. Sup. Ct. R. 25.03(A)(9). In order to make a successful Brady claim, a movant must prove by a preponderance of the evidence: 1) that the evidence is exculpatory or impeaching; 2) that the evidence was willfully or inadvertently suppressed; and 3) that the defendant was prejudiced as a result of its suppression, i.e., the evidence is material to guilt or punishment. State v. Smith , 491 S.W.3d 286, 298 (Mo. App. E.D. 2016) (citing Brady, 373 U.S.); see also Gittemeier v. State , 527 S.W.3d 64, 71 (Mo. banc 2017). Under Brady , withheld or suppressed evidence may be considered material if would have provided a movant with additional plausible, persuasive evidence to support his defense at trial, or if it would have enabled him to present a different plausible and persuasive defense. Smith , 491 S.W.3d at 298.

We reject Harding's Brady violation claims because Brady does not apply here. The information allegedly withheld from him was simply about a pretrial meeting among Turner, Daughter, and the GAL where nothing material was discussed. Harding points to no substantive statements or facts from that meeting that would have supported his defense or would have provided him with a different defense. Since no Brady violation has been shown, Harding's misconduct claim also fails. Point one is denied.

II. Trial counsel's strategic decisions not to impeach Daughter or to call witness Becky Shaw do not constitute ineffective assistance of counsel.

In point two, Harding makes four claims of ineffective assistance of counsel. The first two claims involve counsel's cross-examination of Daughter. Harding claims counsel was ineffective for failing to impeach Daughter: (1) with her prior inconsistent statements about Harding's alleged abuse of Victim, and (2) with her prior inconsistent statements about the location of the gun in relation to the couch's cushions.

Harding's other two ineffective assistance claims involve counsel's failure to call Becky Shaw, who was Victim's friend and with whom the children resided after their mother's death. Harding claims counsel should have called Shaw: (1) to impeach Daughter with her prior inconsistent statements regarding the night her mother was killed, and (2) to testify about Daughter's reputation for truth in the community.

Counsel's decisions whether to impeach, cross-examine, and to call a witness constitute reasonable trial strategy and do not rise to the level of ineffective assistance under the performance prong of the Strickland test. See State v. Simmons , 955 S.W.2d 729 (Mo. banc 1997). To satisfy the performance prong of Strickland , the movant must...