Mann v. State
| Decision Date | 16 January 2008 |
| Docket Number | No. 28273.,28273. |
| Citation | 245 S.W.3d 897 |
| Parties | Tony L. MANN, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
Before BARNEY, P.J., RAHMEYER, J., and LYNCH, C.J.
Appellant Tony L. Mann ("Movant") appeals the motion court's denial following an evidentiary hearing of his Rule 29.15 motion.1 Movant asserts six points of motion court error. We affirm the findings of fact and conclusions of law of the motion court.
The record reveals Movant was charged by Felony Information with one count of the Class A felony of assault of a law enforcement officer in the first degree, a violation of section 565.081.1, and one count of the unclassified felony of armed criminal action, a violation of section 571.015.
A bench trial was held on August 19, 2002.2 The following evidence was adduced at trial.3
On the evening of October 4, 2001, several Springfield police officers were positioned outside of Movant's home in an unmarked police car conducting surveillance on Movant. While the officers were outside his home, Movant erratically drove a motorized scooter past the officers and began to swerve the scooter into oncoming traffic. The officers attempted a traffic stop of Movant; however, Movant evaded the officers. Moments later the officers encountered Movant again, but Movant had discarded his motorized scooter in favor of a bicycle. The officers again attempted to stop Movant and Movant eluded them by riding his bicycle between two houses, thus, disappearing from their view.
Officer David Shanholtzer ("Officer Shanholtzer") left his patrol vehicle and followed Movant on foot with his flashlight in hand. Officer Shanholtzer saw Movant in the backyard of a home where Movant was standing next to a fence. Officer Shanholtzer was unable to see Movant's hands and he yelled to Movant to show his hands. When Movant raised his hands, he had a gun and he fired a shot at Officer Shanholtzer.4 Officer Shanholtzer took cover behind a shed, drew his own gun, and called for back-up. The other officers arrived and when they looked out from behind the shed, Movant was gone. The officers retreated to their vehicle and awaited assistance in locating Movant.
Shortly thereafter an officer with a canine arrived at the scene and was able to track Movant's scent back to his residence a short distance away. Police officers deployed gas into Movant's home and he emerged several minutes later at which time he was arrested.
At the close of all the evidence, the trial court found Movant guilty of the crimes charged in the Felony Information. Movant was sentenced to life in prison for assault of a law enforcement officer in the first degree and 10 years for armed criminal action, with the sentences to run concurrently to each other and to a federal offense Appellant was already serving.
Movant filed his pro se Rule 29.15 motion on July 12, 2004. He was appointed counsel and an Amended Motion to Vacate, Set Aside or Correct Sentence and Judgment was filed on October 8, 2004.
A motion hearing on Movant's motion was held on September 14, 2006. Following the hearing, the motion court denied Movant's request for Rule 29.15 postconviction relief. This appeal by Movant followed.
Appellate review of a motion court's ruling on a Rule 29.15 motion for postconviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law issued in support thereof are clearly erroneous. Rule 29.15(k); see Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). The findings of the motion court are presumptively valid. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). "Findings and conclusions are clearly erroneous if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made." State v. Taylor, 944 S.W.2d 925, 938 (Mo. banc 1997).
To prevail on a claim of ineffective assistance of counsel, Movant must establish by a preponderance of the evidence that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby. State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). To satisfy the performance prong, Movant "must overcome the presumptions that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment." Simmons, 955 S.W.2d at 746. Prejudice exists where there is a reasonable probability that the outcome of the proceeding would have been different but for counsel's ineffectiveness. Id. If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and Movant's claim of ineffective assistance of counsel must fail. Id.
In his first point relied on Movant maintains the motion court erred in finding Movant Received effective assistance of counsel in that his trial counsel "failed to investigate the crime scene and consult with and call as a witness a crime scene investigator." He asserts that "[h]ad such a witness been retained and called, there is a reasonable probability that the outcome of the trial would have been different."
"When a movant claims ineffective assistance of counsel for failure to locate and present expert witnesses, he must show that such experts existed at the time of trial, that they could have been located through reasonable investigation, and that the testimony of these witnesses would have benefited movant's defense." Kluck v. State, 30 S.W.3d 872, 876 (Mo. App.2000). "It is not ineffective assistance of counsel to fail to locate and obtain the testimony of an expert who would not necessarily provide a defense in the case." Id.
The selection of witnesses and the introduction of evidence are questions of trial strategy. Helmig v. State, 42 S.W.3d 658, 667 (Mo.App.2001). "`This is because strategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.'" Id. (quoting State v. Harris, 870 S.W.2d 798, 816-17 (Mo. banc 1994)). "Allegations of ineffective assistance of counsel relating to matters of trial strategy do not provide a basis for postconviction relief for counsel is allowed wide latitude in conducting the defense and is entitled to use his or her best judgment in matters of trial strategy." State v. Borders, 844 S.W.2d 49, 54 (Mo.App.1992) (internal citation omitted).
At the evidentiary hearing Gene Gietzen ("Mr. Gietzen"), a forensic scientist, testified that he was not contacted by Movant's trial counsel, Bruce Galloway ("trial counsel"), to investigate the crime scene at the time of trial. He related that he is called, usually, to do such crime scene investigations "as quickly as possible" after the crime occurs so that he is able to see the scene "in the same or similar condition as it was . . ." at the time of the crime. He related that in the present matter he did his investigation at the request of Movant's postconviction counsel "about three years after the actual events had occurred." He stated he was able "to look at the scene" where Movant shot at Officer Shanholtzer but he could not "reconstruct it [because] it was not in the same or similar condition as it was in 2001." He stated he could not determine whether any of the structures may have been grazed by a bullet because of the passage of time. He related that had he been able to examine the area immediately after the crime he possibly could have been able to more accurately assess the scene and possibly locate a spent shell casing or other evidence. He stated he reviewed a videotape of the crime scene introduced at trial which was taken about nine months after the crime. He opined there would have been significant changes in the scene between the crime in October and the videotape in July due to the changes in seasons and foliage growth. Mr. Gietzen also testified that because of the passage of time he would be unable at this point to properly analyze the crime scene at issue.
Movant testified trial counsel visited him at the hospital on the evening he was arrested and spoke with him again the next day after he was in jail. Movant told trial counsel at that time that he had fired into the air as opposed to firing at Officer Shanholtzer and they discussed "having an investigation done about the scene. . . ." He stated he and trial counsel discussed "a crime scene investigator that [trial counsel] used" named Jim Miller ("Mr. Miller").5 Movant stated trial counsel did not share with him his theory of the case and he thought they were going to use a crime scene investigator.
Trial counsel testified at the hearing that he personally "inspect[ed] the scene of the offense," interviewed the neighbors, and took depositions relating to the present matter. He stated he did not hire a crime scene investigator or other expert witness because he "looked at the scene [him]self. . . ." He stated he personally interviewed the person who owned the home where the offense occurred and he felt "[i]t was not necessary" to hire an expert crime scene investigator. He related that he felt "the reason why an expert would not be material to the defense . . . has to do with this larger issue of how much did [the defense] want to focus the jurors' attention on the exact sequence of events at the time of the shooting."
Defense Counsel also testified his trial strategy was that Movant did not intend to injure Officer Shanholtzer and he...
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