Jackson v. State, ED 87358.

• Decision Date: 07 November 2006
• Docket Number: No. ED 87358.,ED 87358.
• Citation: 205 S.W.3d 282
• Parties: Joseph JACKSON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
• Court: Missouri Court of Appeals

Page 282

205 S.W.3d 282

Joseph JACKSON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.

No. ED 87358.

Missouri Court of Appeals, Eastern District, Division Four.

November 7, 2006.

COPYRIGHT MATERIAL OMITTED

S. Kristina Starke, Assistant Public Defender, St. Louis, MO, for appellant.

Shaun J. Mackelprang, Robert J. Bartholomew, Assistant Attorneys General, Jefferson City, MO, for respondent.

KATHIANNE KNAUP CRANE, Judge.

Movant, Joseph Jackson, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We affirm.

A jury found movant guilty of murder in the first degree, in violation of Section 565.020 RSMo (2000), robbery in the first degree, in violation of Section 569.020 RSMo (2000), and two counts of armed criminal action, in violation of Section 571.015 RSMo (2000), all of which arose from the murder of Calvin Vinson and the theft of his automobile. The trial court sentenced movant to a term of life imprisonment without the possibility of probation or parole on the first degree murder count and life imprisonment on each of the remaining counts, to be served concurrently. We affirmed movant's conviction and sentence on direct appeal. State v. Jackson, 156 S.W.3d 438 (Mo.App.2005).

Thereafter, movant filed a pro se motion to vacate, set aside, or correct the judgment or sentence pursuant to Rule 29.15. Appointed counsel filed an amended Rule 29.15 motion based on allegations of ineffective assistance of trial counsel and requested an evidentiary hearing. The motion court denied the motion after an evidentiary hearing.

On appeal, movant contends that the motion court clearly erred in denying his motion because trial counsel was ineffective for 1) failing to request a jury instruction on the robbery charge for the lesser included offense of stealing a motor vehicle; 2) advising movant to waive his right to testify when he claimed self-defense; 3) failing to object to repetitive testimony about crime scene photographs; and 4) failing to object to the prosecutor's remarks in closing argument.

Our review of the motion court's action on a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Barnett v. State, 103 S.W.3d 765, 768 (Mo. banc), cert. denied, 540 U.S. 862, 124 S.Ct. 172, 157 L.Ed.2d 114 (2003). The findings and conclusions are clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996), cert. denied, 519 U.S. 1152, 117 S.Ct. 1088, 137 L.Ed.2d 222 (1997).

To prevail on a motion alleging ineffective assistance of counsel, a movant must show that his counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances and that the movant was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To establish prejudice, a movant must show that "but for counsel's poor performance there is a reasonable probability that the outcome of the court proceeding would have been different." Barnett, 103 S.W.3d at 768-69. We presume that counsel acted professionally in making decisions and that any challenged action was part of counsel's reasonable trial strategy. Id. at 769. A movant must prove his or her claim for relief by a preponderance of the evidence. Rule 29.15(i).

1. Failure to Request Lesser Included Offense Instruction

For his first point, movant contends that the motion court clearly erred in denying his claim of ineffective assistance of trial counsel based on counsel's failure to request a jury instruction on the lesser included offense of stealing a motor vehicle on movant's first degree robbery charge. Movant argues that there was a basis for acquitting him of the greater offense of robbery in the first degree and convicting him of the lesser offense, and that he was therefore prejudiced by counsel's failure to request an instruction on the lesser offense.

To establish a claim of ineffective assistance of counsel for failure to request a lesser included offense instruction, a movant must show that the evidence would have required submission of a lesser included offense instruction had one been requested, that the decision not to request the instruction was not reasonable trial strategy, and that the movant was thereby prejudiced. See Vogel v. State, 31 S.W.3d 130, 141-45 (Mo.App.2000). An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel. State v. Shurn, 866 S.W.2d 447, 469 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994); Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984); State v. Butler, 904 S.W.2d 68, 73 (Mo.App.1995). The test is "whether a reasonably competent attorney would have performed differently under similar circumstances." Love, 670 S.W.2d at 502.

At the jury instruction conference in the underlying trial, counsel stated that she was not requesting a jury instruction on the lesser included offense of stealing a motor vehicle and that this was a tactical decision on her part. The jury was then instructed on first degree murder, second degree murder, felony murder based on first degree robbery, voluntary manslaughter, involuntary manslaughter, and robbery in the first degree, as well as armed criminal action. In addition, self-defense was submitted to the jury.

At the evidentiary hearing on the 29.15 motion, trial counsel testified that she and movant had discussed whether to request a jury instruction on the lesser included offense, and that she told movant of her concern that the instruction would allow the jury to convict movant of second degree murder and would essentially negate movant's self-defense argument. For these reasons, counsel and movant determined that it would not be in movant's best interest to offer that instruction. Counsel explained that she felt fairly certain that movant would not be acquitted of the lesser charge because he was arrested in the victim's automobile and there was no evidence that he had permission from the deceased victim to possess the automobile. She added that if movant had been found guilty of stealing a motor vehicle, he "most definitely" would have been convicted of second degree murder under the felony murder rule. She felt movant had a stronger chance of acquittal on first degree robbery.

The motion court found that counsel's decision not to request the lesser included instruction constituted reasonable trial strategy.

For the purposes of this opinion, we assume without deciding that the evidence supported a lesser included offense instruction for stealing a motor vehicle. However, we conclude that the trial court's judgment is not clearly erroneous because movant failed to overcome the presumption that counsel's decision not to request the instruction was reasonable trial strategy.

An instruction on the lesser included offense would have been inimical to trial counsel's strategy to have movant found not guilty of first degree robbery and first and second degree murder and guilty only of voluntary or involuntary manslaughter. If the jury had had the lesser included offense instruction before it, it could have convicted movant of stealing and felony murder based on the stealing. Without the lesser included offense instruction, the jury did not have this option. "[M]ovant's counsel cannot be convicted of being ineffective for seeking to employ the best defense for [her] client by not offering the jury a middle ground for conviction." Love, 670 S.W.2d at 502. In this case, the lesser included offense instruction would have offered the jury a middle ground.

The motion court did not clearly err in finding that counsel's decision not to request the lesser included offense instruction was based on reasonable trial strategy. Point one is denied.

2. Advice Not to Testify

For his second point, movant contends that he received ineffective assistance of counsel because trial counsel advised him not to testify although movant claimed self-defense. He contends that he was prejudiced because the jury did not hear his testimony.

Although the decision to testify solely rests with the defendant, a defendant is entitled to receive reasonably competent advice. Rousan v. State, 48 S.W.3d 576, 585 (Mo. banc 2001). Counsel's advice not to testify is not deemed ineffective assistance of counsel if it might be considered sound trial strategy. Id.

After the state rested in the underlying trial, the jury was excused, and counsel announced that the defense would not present evidence. The trial court then advised movant of his privilege against self-incrimination and the consequences of a decision to testify, and questioned him about his decision. Movant responded that he had discussed this issue with his attorney and that he had freely and voluntarily decided not to testify on his own behalf. Movant agreed that no one had forced him not to testify and that he had received enough time to discuss his decision with his counsel. Based on movant's responses, the trial court accepted movant's decision not to testify on his own behalf.

In his amended motion, movant alleged that he told counsel he wanted to testify, but counsel told him he should not testify because he would be a bad witness and the prosecutor "would show him no mercy." He alleged that the jury would have found his claim of self-defense more credible if it had heard his testimony, and it would have acquitted him.

At the evidentiary hearing, movant's trial counsel testified that she presented movant's self-defense theory through his statements to police. She explained that movant would not be able to testify effectively because he had made conflicting statements...