Hosier v. State

• Decision Date: 10 December 2019
• Docket Number: No. SC 97231,SC 97231
• Parties: David R. HOSIER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

593 S.W.3d 75

David R. HOSIER, Appellant,

v.STATE of Missouri, Respondent.

No. SC 97231

Supreme Court of Missouri, en banc.

Opinion issued December 10, 2019

Rehearing Denied February 18, 2020

Hosier was represented by Amy M. Bartholow of the public defender’s office in Columbia, (573) 777-9977.

The state was represented by Gregory L. Barnes of the attorney general’s office in Jefferson City, (573) 751-3321.

Paul C. Wilson, Judge

David Hosier ("Hosier") was found guilty of murder in the first degree, armed criminal action, burglary in the first degree, and unlawful possession of a firearm by a felon. After the jury unanimously recommended a death sentence on the murder charge, the trial court sentenced Hosier to death and imposed two additional 15-year sentences and a seven-year sentence on the armed criminal action, burglary, and unlawful possession charges, respectively. This Court affirmed Hosier’s convictions on direct appeal. State v. Hosier , 454 S.W.3d 883, 900 (Mo. banc 2015).

Hosier timely moved for postconviction relief under Rule 29.15. Following an evidentiary hearing, the motion court denied relief. Hosier appeals, and this Court has jurisdiction. Mo. Const. art. V, sec. 10 ; see also Standing Order, June 16, 1988 (effective July 1, 1988). The judgment of the motion court is affirmed.

Background

Hosier had an affair with Angela Gilpin ("Victim") while Victim was married to her husband, Rodney Gilpin. The affair ended, and Victim reconciled with her husband in August 2009. In September 2009, Hosier broke into Victim’s apartment and shot and killed Victim and her husband. At the time Victim was killed, her purse contained an application for a protective order against Hosier, service information indicating she knew Hosier had a prior criminal record and possessed several firearms, and a third document stating she was afraid Hosier might shoot her and her husband.

After killing Victim and her husband, Hosier fled to Oklahoma, where he was taken into custody by local law enforcement. Police recovered from Hosier’s vehicle 15 firearms, numerous forms of ammunition, a bulletproof vest, a crowbar, latex gloves, a homemade police baton, and a knife. All of the firearms found inside the vehicle were loaded except for a STEN submachine gun, which was determined to be the murder weapon. Upon his arrest, Hosier said something to the effect of "shoot me, and get it over with" or "end it" to police numerous times. In the front seat of Hosier’s vehicle was a note stating, "If you are going with someone do not lie to them.... Be honest with them if there is something wrong. If you do not this could happen to you. People do not like being f* * * * * with, and after so much s* * * they can go off the deep end." Police also found a notepad containing a written description of Victim’s vehicle and its license plate. In the hours leading up to the killings, Hosier called and left several voicemail messages for a woman who knew both him and Victim. In one of these inculpatory messages, Hosier threatened Victim and stated, "I'm gonna ... finish it.... You don't believe me. I'm tired of the s * * *."

Hosier was indicted in the Cole County circuit court. In the guilt phase, the jury found Hosier guilty of murder in the first degree, armed criminal action, burglary in the first degree, and unlawful possession of a firearm by a felon. In the penalty phase, the state presented evidence of two statutory aggravating circumstances: (1) Hosier had a serious assaultive conviction in that he was convicted of a battery in Indiana during which he beat a former girlfriend about the face while she was handcuffed; and (2) the murder was committed while Hosier engaged in the commission of another unlawful homicide, i.e., killing Victim’s husband. § 565.032.2(1)-(2).¹ Hosier presented evidence of three statutory mitigating circumstances: (1) the murder was committed while Hosier was under the influence of extreme mental or emotional disturbance; (2) the capacity of Hosier to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was substantially impaired; and (3) the age of Hosier at the time of the offense. § 565.032.3(2), (6)-(7). The jury unanimously found the existence of both statutory aggravating circumstances and unanimously recommended the death penalty. The court sentenced Hosier to death for murder and imposed two 15-year sentences and a seven-year sentence for the armed criminal action, burglary, and unlawful possession charges.

After this Court affirmed Hosier’s conviction and sentence on direct appeal, Hosier , 454 S.W.3d at 900, Hosier timely filed for postconviction relief under Rule 29.15.

An evidentiary hearing was held in the Cole County circuit court. The Honorable Patricia Joyce, who presided over Hosier’s trial, was the motion court judge. The motion court denied Hosier relief.

Analysis

"This Court reviews a post-conviction relief motion for whether the motion court’s findings of fact and conclusions of law are clearly erroneous." Forrest v. State , 290 S.W.3d 704, 708 (Mo. banc 2009) ; accord Rule 29.15(k). "A judgment is clearly erroneous when there is a definite and firm impression that a mistake has been made after reviewing the entire record." Forrest , 290 S.W.3d at 708 (quotation marks omitted). "This Court defers to the motion court’s superior opportunity to judge the credibility of witnesses." Davis v. State , 486 S.W.3d 898, 905 (Mo. banc 2016) (quotation marks omitted).

I. Ineffective Assistance of Counsel

Hosier asserts eight points of error relating to his claims that both trial and appellate counsel were ineffective. To be entitled to postconviction relief on a claim of ineffective assistance of counsel, a movant must show by a preponderance of the evidence that: "(1) his trial counsel failed to exercise the level of skill and diligence that a reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure." Id. at 905 (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). If either requirement is not met, a claim of ineffective assistance of counsel must fail. State v. Clay , 975 S.W.2d 121, 135 (Mo. banc 1998).

A "[m]ovant must overcome the strong presumption that trial counsel’s conduct was reasonable and effective." Davis , 486 S.W.3d at 906. "To overcome this presumption, a movant must identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Id. (quotation marks omitted). "Reasonable choices of trial strategy, no matter how ill-fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance." Anderson v. State , 196 S.W.3d 28, 33 (Mo. banc 2006). "Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable." Id. (quotation marks and alterations omitted). "It is not ineffective assistance of counsel to pursue one reasonable trial strategy to the exclusion of another reasonable trial strategy." Id.

"Prejudice occurs when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Davis , 486 S.W.3d at 906 (quotation marks omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Deck v. State , 68 S.W.3d 418, 426 (Mo. banc 2002) (quotation marks omitted). In the penalty phase of a capital murder case, prejudice is "a reasonable probability that, but for counsel’s deficient performance, the jury would have concluded the balance of aggravating and mitigating circumstances did not warrant death." Davis , 486 S.W.3d at 906 (quotation marks omitted).

A. Unlawful Possession of a Firearm by a Felon Count

Hosier asserts three points of error relating to his conviction on the charge of unlawful possession of a firearm by a felon. This charge was predicated on Hosier’s 1993 felony conviction in Indiana for battery. There, Hosier’s former girlfriend, Nancy Marshall, had asked Hosier to move out of her house and had obtained an order of protection against Hosier. This order was rescinded, however, and Marshall allowed Hosier to continue to stay in her home. Subsequently, Hosier grabbed Marshall, took her to the basement, handcuffed her, and beat her until she lost consciousness. Marshall was taken to the hospital with a concussion and bruises on her face. Hosier was charged with, and pleaded guilty to, the felony of battery and was sentenced to eight years’ imprisonment. The court’s judgment stated, "[Hosier] is remanded to the custody of the sheriff. [Hosier] is given 36 days jail time-good time credit. Court recommends [Hosier] be given psychiatric treatment."

Before trial in his Missouri case, Marshall was listed on the witness list and she testified during the penalty phase. She did not testify, however, during the guilt phase. Because defense counsel chose not to stipulate to the fact that Hosier had been convicted of felony battery in Indiana in 1993, a copy of the judgment and related documents were received in evidence and shown to the jury. These documents showed the circumstances surrounding the conviction, as well as the court’s recommendation that Hosier receive psychiatric treatment.

1. Failure to Stipulate to the Prior Felony Conviction

Hosier argues trial counsel was ineffective for failing to stipulate to the prior felony conviction, which – under Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) – would have prevented the jury from hearing the name and surrounding circumstances of the conviction underlying the felon-in-possession charge during the guilt phase of the trial. The state was willing to stipulate to the 1993 Indiana felony, but defense counsel declined to do so. As a result, the state was allowed to introduce during the...