Hounihan v. State

• Decision Date: 15 October 2019
• Docket Number: No. SC 97622,SC 97622
• Citation: 592 S.W.3d 343
• Parties: Donnie Wayne HOUNIHAN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

592 S.W.3d 343

Donnie Wayne HOUNIHAN, Appellant,

v.STATE of Missouri, Respondent.

No. SC 97622

Supreme Court of Missouri, en banc.

Opinion issued October 15, 2019

Mary R. Russell, Judge

Donnie Hounihan appeals the motion court’s judgment overruling his Rule 29.15 motion for postconviction relief. Hounihan was convicted of driving while intoxicated under sections 577.010 and 577.023 and driving while revoked under section 302.321.¹ In his Rule 29.15 motion, Hounihan argued his trial counsel was ineffective for failing to call his physician to testify that medications he took for his illnesses made him appear intoxicated by alcohol on the night he was arrested. Because there is not a reasonable probability the trial court’s finding would have been different had the physician testified at Hounihan’s trial, the motion court did not err in denying Hounihan’s Rule 29.15 claim for postconviction relief relating to his driving while intoxicated conviction.

Hounihan further asserted his appellate counsel was ineffective for failing to argue there was insufficient evidence to enhance his driving while revoked misdemeanor to a felony pursuant to section 302.321.2 because the evidence did not establish (1) he was represented by counsel or filed a written waiver of counsel before his prior municipal court conviction and (2) whether he had served more than 10 days on either of the prior convictions for driving while revoked. Because appellate counsel’s failure to raise the sufficiency of evidence claim constituted deficient performance by which Hounihan was prejudiced, the motion court erred in denying Hounihan’s Rule 29.15 claim for postconviction relief for the driving while revoked conviction.

Background

Hounihan was charged with the class B felony of driving while intoxicated under sections 577.010 and 577.023 and the class D felony of driving while revoked under section 302.321. Evidence adduced at trial demonstrated that, in September 2014, a patrolman observed Hounihan driving a vehicle that crossed the center line at least three times. The patrolman stopped the vehicle and observed that Hounihan had cigarette ashes in his lap and smelled of alcohol. The patrolman asked for Hounihan’s driver’s license and insurance. Hounihan replied that he had neither and that he believed his driver’s license was revoked. The patrolman then instructed Hounihan to step outside his vehicle and walk to the patrol vehicle. Hounihan swayed as he walked. Inside the patrol vehicle, the patrolman observed Hounihan’s eyes were bloodshot, watery, and glassy. Hounihan admitted he had consumed several beers and a pint of whiskey before driving.

The patrolman placed Hounihan under arrest and took him to a hospital for a blood sample, which showed a blood alcohol content level of 0.15. During questioning at the hospital, Hounihan again admitted he drank beer and whiskey within three hours of being stopped. He further stated he took hydrocodone

, Klonopin, and other prescription drugs.

Hounihan testified regarding his many mental and physical illnesses, including chronic obstructive pulmonary disease

, asthma, black mold poisoning, memory loss, and bulging spinal disks. He stated his medications had made his eyes watery and red on the day the patrolman stopped him.

The trial court found Hounihan guilty as charged and sentenced him to seven years' imprisonment for driving while intoxicated and four years' imprisonment for driving while revoked, to run concurrently. Hounihan’s convictions were affirmed on direct appeal. In his amended Rule 29.15 motion for postconviction relief, Hounihan argued trial counsel was ineffective for failing to call his physician to testify that the medications he took for his illnesses made him appear intoxicated by alcohol on the night he was arrested. He further asserted appellate counsel was ineffective for failing to argue there was insufficient evidence to enhance his driving while revoked misdemeanor to a felony pursuant to section 302.321.2. Hounihan claimed the State failed to present evidence establishing (1) Hounihan was represented by counsel or filed a written waiver of counsel before a prior municipal court conviction and (2) he had served more than 10 days on either of the prior convictions for driving while revoked, as required under section 302.321.2, to enhance the misdemeanor to a felony.

At the evidentiary hearing, trial counsel testified she was aware prior to trial that Hounihan wanted his physician to testify. She stated she wrote a letter to Hounihan advising she would not ask his doctor to testify "[d]ue to the high amount of unpaid fees." She admitted she had not contacted the physician and, accordingly, was unaware whether he charged a fee. Trial counsel further stated she did not believe the physician’s testimony would have aided Hounihan’s defense because there was substantial evidence of his intoxication. The physician testified Hounihan had a number of physical conditions affecting his balance and gait. He stated he did not charge a fee to testify and, if called at Hounihan’s trial, he would have testified similarly.

In an affidavit, appellate counsel conceded he should have argued on direct appeal that there was insufficient evidence to convict Hounihan of the felony of driving while revoked under section 302.321. He stated that he failed to raise the claim "under a mistaken understanding of the quantum of proof necessary" for the trial court to enhance Hounihan’s driving while revoked misdemeanor to a felony and that he had "no strategic or other legal reason" for failing to raise the issue.

The motion court overruled Hounihan’s motion for post-conviction relief. Hounihan appeals.²

Standard of Review

A motion court’s judgment denying postconviction relief will be affirmed unless its findings and conclusions are clearly erroneous. Rule 29.15(k); Meiners v. State , 540 S.W.3d 832, 836 (Mo. banc 2018). Findings and conclusions are clearly erroneous only when "this Court is left with a definite and firm impression that a mistake has been made." Mallow v. State , 439 S.W.3d 764, 768 (Mo. banc 2014).

Analysis

Hounihan raises two claims of ineffective assistance of counsel. First, he claims trial counsel was ineffective for failing to call his physician to testify that medications he took for his illnesses made him appear intoxicated by alcohol on the night of his arrest. Second, Hounihan asserts his appellate counsel was ineffective for failing to argue there was insufficient evidence to enhance his driving while revoked misdemeanor to a felony under section 302.321.2.

To obtain postconviction relief under Rule 29.15, the movant must satisfy the two-prong Strickland standard. Anderson v. State , 564 S.W.3d 592, 600 (Mo. banc 2018) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). A movant must first demonstrate that counsel’s performance was deficient. Id. An attorney’s performance is deficient when it fails to rise to the level of skill that would be exercised by a reasonably competent attorney under similar circumstances. Id. When alleging ineffective assistance of appellate counsel, the error on appeal must have been "so obvious that a competent and effective lawyer would have recognized and asserted it." Id. at 617 (quoting Williams v. State , 168 S.W.3d 433, 444 (Mo. banc 2005) ).

A movant must also prove that counsel’s deficient performance prejudiced his defense. Id. at 601. Prejudice transpires when "there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Id. (quoting Deck v. State , 68 S.W.3d 418, 429 (Mo. banc 2002) ). A reasonable probability "is a probability sufficient to undermine confidence in the outcome." Tisius v. State , 519 S.W.3d 413, 420 (Mo. banc 2017).

I. Driving While Intoxicated Conviction

Hounihan argues trial counsel was ineffective for failing to call his physician to testify. According to Hounihan, had the trial court heard the physician’s testimony regarding Hounihan’s various diagnoses and the side effects of his medications, there is a reasonable probability the trial court would not have found him guilty of driving while intoxicated. The motion court denied this claim, finding Hounihan was not prejudiced by trial counsel’s failure to contact the physician or to call him as a witness.

At the evidentiary hearing, the physician testified that Hounihan had a number of medical conditions that affected his ability to walk and that he prescribed Hounihan multiple medications to treat those conditions. He stated he would have testified similarly had he been called as a witness at Hounihan’s trial.

To prove the failure to call a witness prejudiced the movant, it must be shown that "the witness’s testimony would have produced a viable defense." Johnson v. State , 388 S.W.3d 159, 166 (Mo. banc 2012). Hounihan twice admitted to the patrolman that he consumed alcohol prior to driving – once after being stopped by the patrolman and again in the hospital while being interrogated. In particular, Hounihan stated, shortly after being stopped by the patrolman, he had consumed a pint of whiskey and several beers before driving. Hounihan’s blood alcohol content level was 0.15, and the patrolman testified Hounihan smelled of alcohol and had watery and glassy eyes. Further, at the evidentiary hearing, the physician admitted on cross-examination that none of the medications he prescribed Hounihan had a side effect of causing a smell of alcohol. The motion court determined there was considerable evidence of Hounihan’s guilt that would not have been refuted by the physician’s testimony.

The motion court did not clearly err in finding the physician’s testimony would not have produced a viable defense for Hounihan’s driving while intoxicated conviction. Because there is not a reasonable probability that the outcome of the trial would have been different had Hounihan’s physician...