Hays v. State

• Decision Date: 07 February 2012
• Docket Number: No. WD 73468.,WD 73468.
• Citation: 360 S.W.3d 304
• Parties: Brad A. HAYS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

360 S.W.3d 304

Brad A. HAYS, Appellant,

v.STATE of Missouri, Respondent.

No. WD 73468.

Missouri Court of Appeals, Western District.

Feb. 7, 2012.

Mark A. Grothoff, Columbia, MO, for appellant.

Shaun J. Mackelprang and Richard A. Starnes, Jefferson City, MO, for respondent.

Before Division Two: GARY D. WITT, Presiding Judge, JOSEPH M. ELLIS, Judge and MARK D. PFEIFFER, Judge.

GARY D. WITT, Judge.

Brad A. Hays ¹ appeals the motion court's denial of his Rule 29.15 ² motion for post-conviction relief, following an evidentiary hearing. We affirm.

Factual Background

Brad Hays (“Hays”) was convicted by a jury in Lafayette County of second-degree burglary, felony stealing, first-degree robbery, first-degree burglary, first-degree assault, and armed criminal action.³ All of these crimes involved a single victim, Alvin Ford (“Ford”), but occurred on two separate dates. The following facts were elicited at trial and are recited in a light most favorable to the verdict.⁴

In 2003, Ford moved to Odessa from Independence following the death of his longtime girlfriend, Cordelia George (“Cordelia”).⁵ Cordelia's Last Will and Testament bequeathed all of her property to Ford and to her grandson, effectively denying her daughter, Terry George (“Terry”), any inheritance. Ford and Terry did not get along because he disapproved of her drug-addicted lifestyle. Terry contested her mother's Will, which was still pending in the probate court at the time of Hays's criminal trial.

On March 29, 2003, Ford's home was burglarized. Insurance documents and several items of personal property were stolen. A little over one year later, on May 28, 2004, Ford responded to a man knocking at his door. The man identified himself as a census taker and requested Ford's signature. Ford told the man that he knew he was not actually a census taker, and attempted to close the door. The man forced his way into Ford's house, fought with, and eventually subdued Ford. During the fight, the man struck Ford in the head with a pistol several times. Ford was tied up with an electric cord and tape. A second man then entered Ford's home and the two men proceeded to ransack it and steal personal property.

Prior to the burglary Terry had sought Hays's assistance to recover some items of personal property from Ford that had belonged to her mother, Cordelia, and to get even with Ford because she was left out of her mother's Will. Lisa Seevers (“Seevers”), an acquaintance of Hays and Terry, testified that she heard the two discussing this topic one week before the March 2003 burglary, and that Hays later admitted to her that he was involved in that burglary. Additionally, DNA evidence recovered from Ford's home after the 2003 incident placed Hays at the scene. Seevers further testified that on the day of the 2004 burglary, Hays and Steve Kleihauer (“Steve”) were at her home discussing a trip to Ford's home to recover some of Terry's property. Seevers traveled with the men to Odessa, where she went to her mother's house rather than accompanying the men to Ford's residence. Hays met with Seevers after the incident, and told her that Steve had tied up Ford and that they had taken items from Ford's house.

Hays was convicted and sentenced to consecutive terms of seven years for second-degree burglary, seven years for stealing, life for robbery, fifteen years for first-degree burglary, fifteen years for assault, and fifty years for armed criminal action.

Hays filed a pro se Motion to Vacate, Set Aside, or Correct Judgment and Sentence in October 2008. The motion was amended by appointed counsel and, in that amended motion, Hays alleged that counsel was ineffective for failing to call Kenneth Kleihauer (“Kenneth”) to testify as an alibi for Hays's co-defendant, Steve, and for failing to object to Seevers's testimony that she was “fearful” about testifying against Hays. The motion court held an evidentiary hearing and issued findings of facts and conclusions of law, denying Hays's post-conviction motion. Hays now appeals. Further factual details will be provided as necessary in the analysis section.

In Point One, Hays argues the motion court clearly erred in denying his post-conviction claim because trial counsel was ineffective for failing to call Kenneth as a witness to testify as an alibi for Hays's co-defendant, Steve, for the 2004 crimes and thereby undermining the State's theory that the two acted together on that day.

Standard of Review

When reviewing a motion court's denial of a claim of ineffective assistance of counsel, the reviewing court is limited to “a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Nicklasson v. State, 105 S.W.3d 482, 484 (Mo. banc 2003); Rule 29.15(k). Error is clear when an examination of the full record definitely and firmly reveals that a mistake was made. Edwards v. State, 200 S.W.3d 500, 509 (Mo. banc 2006). “The motion court's findings of fact and conclusions of law are presumed to be correct.” Id.

Analysis

“To be entitled to post-conviction relief for ineffective assistance of counsel, the movant must satisfy a two-prong test.” Glaviano v. State, 298 S.W.3d 112, 117 (Mo.App. W.D.2009) (quoting Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009)). “The movant must show that his counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would exercise in a similar situation and that trial counsel's failure prejudiced the defendant.” Id. Both prongs of this test must be satisfied, and, if Hays fails to satisfy either prong, this court does not need to consider the other. Gennetten v. State, 96 S.W.3d 143, 148 (Mo.App. W.D.2003). Hays bears the burden of proving grounds for relief by a preponderance of the evidence. Nicklasson, 105 S.W.3d at 484; Rule 29.15(i).

In order to satisfy the performance prong, Hays's burden is to “overcome the presumption that the challenged action is sound trial strategy, and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment.” State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). The prejudice prong of the test will be satisfied if Hays shows a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To succeed on a claim of ineffective assistance of counsel for failure to call a witness, Hays must show that: (1) counsel knew or should have known of the existence of the witness, (2) the witness could be located through a reasonable investigation, (3) the witness would testify, and (4) the testimony of the witness would have produced a viable defense. Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004). “The selection of witnesses is a virtually unchallengeable question of trial strategy.” State v. Kreutzer, 928 S.W.2d 854, 877 (Mo. banc 1996). The decision not to call a witness “will not support a claim of ineffective assistance of counsel unless the defendant clearly establishes otherwise.” Hutchison, 150 S.W.3d at 304.

Hays alleges that his trial counsel was ineffective for failing to interview and call Kenneth as a witness, whose testimony would have provided an alibi for Hays's co-defendant, Steve, and thereby undermined the State's theory that Hays and Steve acted in concert to commit the May 2004 charged crimes. Because Kenneth's testimony could have refuted the theory of the prosecution's case against him, Hays argues that his trial counsel's ineffective assistance in this regard was uniquely prejudicial. We disagree.

At the post-conviction relief hearing, Kenneth did not testify because he could not be located. At the time of the hearing there was a warrant for Kenneth's arrest. The motion court accepted into evidence a transcript of Kenneth's testimony from Steve's trial, wherein Kenneth testified that he and Steve had been working together for Kenneth's construction company on May 28, 2004 at the time of the second burglary. On cross-examination, Kenneth admitted that his company had never advertised, that it had no bank account, that the company van was unregistered and stolen, and that any business records which could verify his testimony had been lost. He also testified that the only other employee of his company working on the project that day had since passed away.

In rejecting Hays's claim, the motion court made a specific finding and conclusion that Hays did not establish by a preponderance of the evidence that trial counsel failed to exercise the level of skill and diligence of reasonably competent counsel and that Hays suffered any prejudice as a result. After a careful review of the record, we conclude that the motion court did not err in refusing to grant Hays's post-conviction relief in this regard.

Before we begin, we note that Hays is correct that the motion court misconstrued his claim concerning the failure of counsel to call witness Kenneth. The motion court misconstrued the claim and thought Hays was claiming it was error for his trial counsel not to have called to the stand Steve, his co-defendant. Regardless of the error, we will not reverse the motion court where the court reaches the correct result even if for the wrong reason. See Walker v. State, 34 S.W.3d 297, 301 n. 5; Owens v. State, 753 S.W.2d 60 (Mo.App. E.D.1988).

Failure to call a witness to testify does not amount to ineffective assistance of counsel unless that witness's testimony would “unqualifiedly support” the movant. Whited v. State, 196 S.W.3d 79, 83 (Mo.App. E.D.2006). “When the testimony of the witness would only impeach the State's witnesses, relief on a claim of ineffective assistance of counsel is not warranted.” Collis v. State, 334 S.W.3d 459, 464 (Mo.App. S.D.2011) (quoting Whited, ...