On
November 3, 2011, in the Circuit Court of Gasconade County
petitioner Hill was convicted by a jury of the following
offenses: three counts of first degree deviate sexual
intercourse with a person less than 14 years of age; first
degree child molestation; two counts of first degree sexual
intercourse with a person less than 14 years of age; second
degree statutory rape; and second degree statutory sodomy.
On
November 28, 2011, before sentencing, petitioner through
counsel filed a written motion for a new trial. Petitioner
alleged that during voir dire juror #3, who became the jury
foreperson, was
disingenuous to the Court and Counsel in Voir Dire
questioning as to his relationship with the victim's
mother . . ., [that he] maintained and still continues an
active relationship with the mother of the alleged victim
which is obviously prejudicial to the juror selection and
jury trial process.
More particularly, Defendant asserts that juror number three
(3), Edward Rolfes Jr., had an active facebook relationship
with the alleged victim's mother which allowed him the
ability to communicate with the alleged victim's mother
which was contrary to his sworn testimony in Voir Dire in
that he stated that he
only knew the alleged victim's mother from high school
and occasionally ran into her at a bar and said
"hi".
(Doc. 16-3 at 76.) On February 17, 2012, the Circuit Court
conducted a hearing on petitioner's motion for a new
trial. Thereafter, the motion was denied.
On May
3, 2012, the Circuit Court sentenced petitioner Hill to 5
terms of life imprisonment, one term of 10 years
imprisonment, and two terms of five years imprisonment, all
to be served concurrently. (Doc. 14-1 at 38-40.)
On
direct appeal, petitioner raised only one ground for relief
His federal constitutional rights were violated when the jury
foreperson intentionally failed to disclose that he had a
relationship with the child victim's mother on popular
networking website Facebook. This relationship involved him
viewing postings by her and her photographs, exchanging
personal messages with her, including messaging the night the
jury's verdict was rendered, which strongly indicated he
was biased against petitioner. (Doc. 14-1 at 18.) On June 18
2013, the Missouri Court of Appeals affirmed the judgment on
direct appeal. On petitioner's sole point on appeal, the
appellate court ruled:
Here, Hill argues that an intentional nondisclosure occurred
when Rolfes, in response to the State's voir dire
examination, failed to reveal his Facebook relationship with
Mother. During voir dire Rolfes was asked whether he knew
Mother, talked with Mother, or socialized with Mother. Rolfes
responded that he knew Mother from school and his
communication and socialization with Mother was limited to
"Hi, how you doing, that's about it." That
level of communication and socialization was consistent with
his Facebook relationship with Mother. Mother and Rolfes both
testified that they did not use Facebook to socialize and
communicate with one another. At most, their Facebook
relationship prior to trial consisted of nothing more than
general pleasantries, consistent with the relationship
described by Rolfes during voir dire. Therefore, the extent
of their relationship was fully disclosed during voir dire,
and a lay person would not reasonably conclude that the
State's questions solicited disclosure of the fact that
the relationship took place on Facebook when no inquiry was
made as to the method or medium of their limited
communication and socialization. Accordingly, there was no
clear question which unequivocally triggered Rolfes' duty
to disclose his Facebook relationship with Mother, and the
record does not support that a nondisclosure actually
occurred. The trial court did not abuse its discretion in
denying Hill's motion for
new trial based on juror misconduct.
(Doc. 14-3 at 5-6.) See State of Missouri v. Hill,
412 S.W.3d 281, 285 (Mo.Ct.App. 2013).
On
February 13, 2014, petitioner filed a pro se motion
for post-conviction relief under Missouri Supreme Court Rule
29.15. To the Court's discernment, the motion asserted
the following grounds for relief, all based upon allegations
of constitutionally ineffective assistance of counsel:
A.
Petitioner's trial counsel:
1. Failed to interview or contact witnesses given him by
petitioner.
2. Failed to offer evidence and file motions suggested by
petitioner.
3. Failed to establish a reasonable relationship with
petitioner.
4. Failed to present documentary evidence, medical records,
and witness statements suggested by petitioner.
5. Failed to discuss the state's evidence with petitioner
before trial.
6. Failed to spend sufficient time with defense witnesses
prior to trial.
7. Failed to interview or depose state witnesses prior to
trial.
8. Failed to argue the jury saw petitioner shackled.
9. Failed to object to jury instructions and prosecutor
misconduct.
10. Accepted the case knowing he had a conflict of interest
with petitioner.
11. Failed to familiarize himself with petitioner's case.
12. Attended trial smelling of alcohol.
13. Failed to argue that petitioner's Eighth Amendment
rights were violated.
B.
Petitioner's appellate counsel:
1. Failed to argue a “dead bang winner claim” on
direct appeal.
2. Failed to argue the petitioner's Eighth Amendment
rights were violated. Petitioner's pro se motion
also argued that the prosecuting attorney knowingly put
witnesses on the stand who testified falsely.
(Doc. 16-4 at 1-8.)
On May
14, 2014, petitioner's appointed counsel filed an amended
motion for relief under Rule 29.15. (Doc. 14-7.) In the
amended motion, counsel argued that petitioner's trial
counsel was constitutionally ineffective in the following
grounds:
1. Trial counsel failed to interview, call to testify, or
inquire of the following witnesses: Allison Tyson, Marilyn S
Hill, Daniel D. Hill, Katherine A. Rose and, and Heidi R.
Bottomley, regarding a joint birthday party held for M.G. and
B.F. in Hermann, Missouri, for M.G.'s fourteenth birthday
at which time she alleged sexual acts occurred at the Lost
Valley Lake Resort, and M.G. testified there was no birthday
party.
2. Trial counsel failed to request a change of venue as
requested by Movant.
3. Trial counsel failed to investigate, as requested by
Movant, ongoing occurrences of abuse and threats by Mary Hill
during a custody dispute involving D.H., and prior false
allegations made by M.G., as Movant had reported to Officer
Linkee Carrillo prior to the allegations made by M.G. being
reported.
4. Trial counsel failed to declare that he had a conflict of
interest representing Movant because the mother of M.G. was
an employee of trial counsel.
5. Trial counsel failed to obtain journals kept and written
by M.G. and her sisters that Movant had provided to his
former counsel, Richard Dempsey, Jr., that contained
statements which demonstrated the abuse M.G. suffered at the
hands of her mother, Mary Green.
6. Trial counsel failed to inquire of M.G., on
cross-examination, regarding any scars or deformities Movant
had due to an injury suffered to his groin area in the summer
of 2009.
7. Trial counsel failed to counsel and discuss with Movant
the discovery received from the Prosecuting Attorney and
discuss the specific allegations and time frame of the
individual occurrences; and obtain evidence suggested by
Movant which would allow Movant to provide potential evidence
in support of his defense and assist trial counsel to better
familiarize himself with supportive facts and prepare for
trial.
8. Trial counsel failed to subpoena additional journals kept
by M.G. and her sisters after Movant moved out of the house
in September 2009, that would provide additional evidence for
impeachment of M.G. and Mary Hill.
9. Trial counsel failed to obtain Movant's medical
records from the Odessa Medical Group from 2010 demonstrating
that Movant had a severe fungal infection at a time M.G.
claimed sexual relations occurred in September 2010 and had a
serious illness for which he needed emergency care.
10. Trial counsel failed to contact and discuss proposed
testimony with the defense witnesses, called at trial,
resulting in trial counsel's inability to thoroughly
question the witnesses.
11. Trial counsel failed to conduct a deposition of officer
Linkee Carrillo prior to trial in order to prepare to
cross-examine him regarding the conversations Movant had with
the officer prior to September 13, 2010, which were unrelated
to the specific allegations, and the conversation held
between Movant and Officer Carrillo on September 13, 2010,
related to the allegations being made by M.G.
12. Trial counsel failed to investigate, after being informed
by Movant, that on the morning of trial he was paraded before
the venire panel, while shackled and in jail clothes.
13. Trial counsel failed to investigate, as requested by
Movant, the fact that one of the jurors was spending time
with BACA (Bikers Against Child Abuse) members during breaks
in the trial, and among the BACA members were several of Macy
Green's friends.
14. Trial counsel failed to argue there was insufficient
evidence to support the
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