Jarrett v. State

• Decision Date: 17 April 2019
• Docket Number: No. SD 35458,SD 35458
• Parties: James L. JARRETT, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

572 S.W.3d 143

James L. JARRETT, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 35458

Missouri Court of Appeals, Southern District, Division Two.

Filed: April 17, 2019

Attorney for Appellant: Maleaner R. Harvey of St. Louis, MO.

Attorneys for Respondent: Eric S. Schmitt, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., of Jefferson City, MO.

JEFFREY W. BATES, J.

James Jarrett (Jarrett) appeals from an order denying his amended Rule 29.15 motion to set aside his convictions for one count of forcible rape and two counts of first-degree statutory sodomy. See §§ 566.030, 566.062.¹ Because the motion court’s decision to deny relief after an evidentiary hearing was not clearly erroneous, we affirm.

Jarrett bore the burden of proving the grounds asserted in his post-conviction motion by a preponderance of the evidence. See Rule 29.15(i); McLaughlin v. State , 378 S.W.3d 328, 337 (Mo. banc 2012). Our review of the denial of a Rule 29.15 motion is limited to determining whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Williams v. State , 168 S.W.3d 433, 439 (Mo. banc 2005). We will find clear error only if a full review of the record leaves us with a definite and firm impression that a mistake has been made. Zink v. State , 278 S.W.3d 170, 175 (Mo. banc 2009). We presume the motion court’s findings and conclusions are correct. McLaughlin , 378 S.W.3d at 336-37. "The motion court is not required to believe the testimony of the movant or any other witness, even if uncontradicted, and this Court defers to the motion court’s determination of credibility." Smith v. State , 413 S.W.3d 709, 715 (Mo. App. 2013). The following summary of facts has been prepared in accordance with these principles.

Jarrett was charged with the following offenses committed in 2010 against three of his adopted children: forcible rape of his 17-year-old daughter, H.J. (Count 1); first-degree statutory sodomy of his 13-year-old daughter, T.J. (Count 2); and first-degree statutory sodomy of his 12-year-old son, M.J. (Count 3). Following a jury trial in February 2014, Jarrett was found guilty on all three counts. The trial court imposed the jury-recommended sentences of 25 years on each count, with the sentences on Counts 1 and 2 running concurrently and the sentence on Count 3 running consecutively to the other sentences. This Court affirmed Jarrett’s convictions and sentences on direct appeal in an unpublished order and statement. State v. Jarrett , SD33266 (Mo. App. October 6, 2015).

Jarrett filed a pro se motion seeking relief pursuant to Rule 29.15. Thereafter, appointed counsel filed an amended motion.² In the amended motion, Jarrett claimed that his trial counsel was ineffective in three respects and his appellate counsel was ineffective in one respect. The motion alleged: (1) trial counsel was ineffective for failing to call Jarrett’s older daughter, H.E., as a witness; (2) trial counsel was ineffective for failing to object to each of the verdict-directing instructions on the ground that they failed to identify the specific incident upon which the jurors were required to agree and, therefore, violated Jarrett’s right to a unanimous verdict; (3) appellate counsel was ineffective for failing to raise a plain-error point challenging the verdict-directing instructions on the same ground; and (4) trial counsel was ineffective for failing to object to T.J.’s testimony about different sexual acts Jarrett forced her to engage in other than the act charged.

In November 2017, the motion court held an evidentiary hearing at which Jarrett and his trial counsel, Daren Todd (Todd), testified. Jarrett’s appellate counsel, Margaret Johnston (Johnston) testified via deposition. Thereafter, the motion court issued findings of fact and conclusions of law denying Jarrett’s amended motion for post-conviction relief. This appeal followed.

Standard of Review

All of Jarrett’s points on appeal involve alleged ineffective assistance of counsel. Because those allegations involve both trial and appellate counsel, we will set out the applicable standard of review for each type of claim.

Jarrett’s first, second and fourth points contend he received ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the movant must satisfy a two-prong test. Zink , 278 S.W.3d at 175. First, the movant must "show that counsel’s representation fell below an objective standard of reasonableness." Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time." Id . at 689, 104 S.Ct. 2052. Second, the movant must show that trial counsel’s failure prejudiced him. Id . at 687, 104 S.Ct. 2052 ; Anderson v. State , 196 S.W.3d 28, 33 (Mo. banc 2006) (to satisfy the prejudice prong under the Strickland test, movant is required to show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different). Both of these prongs must be shown in order to prove ineffective assistance of counsel. Zink , 278 S.W.3d at 175. Movant must overcome a strong presumption that counsel’s conduct was reasonable and effective. Id . at 176.

Jarrett’s third point contends he received ineffective assistance of appellate counsel. The standard for evaluating a claim of ineffective assistance of appellate counsel is the same as the standard for evaluating a claim of ineffective assistance of trial counsel. Richardson v. State , 386 S.W.3d 803, 806 (Mo. App. 2012). That is, a movant must prove his appellate counsel’s performance fell below an objective standard of reasonableness and that his defense was prejudiced by that unreasonable performance. Baumruk v. State , 364 S.W.3d 518, 525 (Mo. banc 2012). Similarly, appellate counsel’s performance is "presumed reasonable." Id . at 526. To overcome that presumption, "the movant must establish that counsel failed to raise a claim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it." Tisius v. State , 183 S.W.3d 207, 215 (Mo. banc 2006). "The claimed error must have been sufficiently serious to create a reasonable probability that, if it was raised, the outcome of the appeal would have been different." Id . ; Meiners v. State , 540 S.W.3d 832, 842 (Mo. banc 2018).

Discussion and Decision

Presenting four points on appeal, Jarrett contends the motion court clearly erred in denying each of the four claims alleged in his amended Rule 29.15 motion for post-conviction relief. Jarrett asserts that he received ineffective assistance of trial counsel for failing to call a witness (Point 1) and failing to object to certain testimony (Point 4). In addition, Jarrett also asserts that both trial and appellate counsel, respectively, were ineffective for failing to object to verdict-directing instructions at trial (Point 2) and failing to raise a plain-error point addressing that issue on appeal (Point 3). For ease of analysis, we discuss these points in the order outlined above. Additional facts will be included below as we discuss each point on appeal.

Points 1 and 4

Point 1 contends trial counsel was ineffective for failure to call Jarrett’s oldest daughter, H.E., to refute T.J.’s testimony at trial that the first time Jarrett sexually abused her was on Halloween night in 2005 when she was eight years old. At trial, Jarrett testified that he never kept T.J. from going trick-or-treating. In the amended motion for post-conviction relief, Jarrett alleged that trial counsel was ineffective for failing to call H.E., who would have corroborated Jarrett’s testimony. At the evidentiary hearing, trial counsel Todd was asked why he did not call H.E. Todd testified that he chose not to call H.E. to avoid the possibility of the State calling Jarrett’s son, E.J., and Jarrett’s former wife as rebuttal witnesses, both of whom potentially could have given testimony that might damage the defense:

When I was speaking with [Jarrett], I was concerned that the State would call his son, [E.J.], as a rebuttal witness. [Jarrett] indicated he and [E.J.] didn't have a very good relationship, and I was concerned about that. In addition, I was also concerned about his wife at the time ... also rebutting that presumption or that statement. I didn't want to muddle up the record with who are we going to believe more, the mother or the daughter. As I explained to [Jarrett], the whole case was going to depend on whether they believed him or they didn't believe him. So that was my strategy.

Jarrett testified at the evidentiary hearing that Todd explained this strategy to him, but he asked Todd to call H.E. anyway. H.E. testified that she was available to testify. The motion court rejected the claim because, inter alia , Todd was aware of H.E. and had interviewed her, but it was his reasonable trial strategy to not call her as a witness.

Jarrett’s first point maintains that the motion court clearly erred because H.E.’s testimony "was necessary to provide [Jarrett] with a viable defense[,]" and "[b]ut for trial counsel’s error, there is a reasonable probability the outcome of [the] trial would have been different." According to Jarrett, "counsel’s strategy not to call [H.E.] was unreasonable under the circumstances[.]" We disagree.

"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 , 196 S.W.3d at 33. Further, "[t]he selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim." Williams , 168 S.W.3d at 443 (emphasis added); see also Strickl...