Melillo v. State

• Decision Date: 01 October 2012
• Docket Number: No. SD 31605.,SD 31605.
• Citation: 380 S.W.3d 617
• Parties: Jonathan S. MELILLO, Respondent, v. STATE of Missouri, Appellant.
• Court: Missouri Court of Appeals

380 S.W.3d 617

Jonathan S. MELILLO, Respondent,

v.STATE of Missouri, Appellant.

No. SD 31605.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 1, 2012.

Chris Koster, Atty. Gen., Jessica P. Meredith, Asst. Atty. Gen., Jefferson City, for Appellant.

Stuart P. Huffman, Springfield, MO, for Respondent.

Before SCOTT, P.J., BATES, J., and BURRELL, C.J.

PER CURIAM.

We reverse a grant of post-conviction relief.

Background: The Stalking Case ¹

When Victim ended their relationship, Movant reminded her how “he had been part of an assassination group, that he had done operations as part of this group both in Panama and Bosnia.” He frightened Victim by saying he could at any time “have people here in Springfield” kill Victim or any member of her family, her friends, or her ex-husband.

The next day, Movant went to Victim's workplace and angrily threatened to destroy her life. He said he would get Victim fired from work, thrown out of school, kicked out of her church, and that he would ruin her reputation with her friends.

Thereafter, Movant repeatedly called Victim at home, at work, and on her cell. He left Victim's friend a “very unpleasant” message. He went to Victim's apartment in the early morning hours, rang the doorbell, peered through patio doors, and left a note. Victim called the police. An officer arrived. As the officer was taking the report, Movant called again. The officer took the phone and identified himself as a police officer. “Screw you bitch,” said Movant and hung up.

Movant kept after Victim. Her answering machine filled up with his messages. He walked by her office. He emailed her boss. He followed her as she ran work errands. He noted a co-worker whom Victim had dated, then told Victim, “now I know what my target looks like.” When Victim and a friend went to lunch, Movant followed them. Security personnel at work asked Victim not to walk about alone.

One evening, Victim's ex-husband (“Father”) brought their two sons to visit Victim. Movant sat in his truck in the parking lot. After the boys entered Victim's apartment, Father drove off with his family. Movant followed them, driving aggressively and flashing his lights. He cut off Father's vehicle, sped away, then skidded sideways, blocking both lanes and forcing Father to stop. Movant got out, yelling and pointing as he approached. Father told his wife to call 911, got their child down on the floorboard, and shouted for Movant to show his hands. When Movant would not do so, Father threatened to run him over. Movant finally showed his hands and Father hit reverse, speeding backwards down the street. He met police at Victim's apartment and gave a statement, then Father, his family, and the officers left.

Twenty minutes later, Movant was at Victim's apartment. She called 911 as he beat on doors and windows and shouted for her to come out. Then knocking ceased as the power went off. The lights came back on and Movant resumed knocking and yelling.

Victim stayed on her 911 call until the police returned. Movant boasted to officers about his fighting ability and law enforcement background, and said it would take several of them to get him to jail if he chose to fight. Officers arrested him and told Victim how to seek an order of protection.

Movant was served with an ex parte order the next day. He continued to email and call Victim. He told officers who came to his apartment that “[t]he big word in today's world is stalking, but I'm not stalking her.” A consent search yielded Movant's emails to Victim and a cell phone from which he admitted that he “accidentally” may have called her. Movant was arrested again.

The court warned Movant, at a hearing, to have “absolutely no contact” with Victim. Movant slammed his chair into the table, stormed out of the courtroom, and continued to call, email, and follow Victim. Finally, after yet another workplace incident, Movant was arrested again. Complaining this was “bullshit,” Movant yelled back toward Victim that he would “get” her. ²

Movant was charged with aggravated stalking and was tried March 5–8, 2007. Trial counsel was public defender David Smith. The defense theory was that Movant did not intend to frighten Victim and made no credible threat. Testifying in his own defense, Movant admitted that he repeatedly emailed and called Victim. He did not deny that he told Victim that he could make a call and have her family killed, but he told jurors that he had been exaggerating.

The jury found Movant guilty and recommended a three-year sentence. Victim asked the court to give Movant probation, but with “as many restrictions as possible” so he would not continue to violate her rights. The court honored her request and granted probation.

Movant appealed, claiming trial court error in granting the State's motion to endorse Father as a witness, denying a continuance, and denying a motion for bill of particulars. This court affirmed the conviction by unpublished memorandum.

Background: The PCR Case

Movant sought Rule 29.15 post-conviction relief.³ Appointed counsel's ⁴ prolix amended motion asserted a multitude of poorly organized allegations of trial court error and ineffective assistance of counsel (IAC). The motion court, which had not been the trial court, ordered an evidentiary hearing.

Movant, the only witness, did not testify on any of his IAC claims. His brief testimony was limited to his claim that he was deprived of his chosen counsel. He testified that attorney Robert McGee visited him in jail a month before trial and agreed to represent him. Movant claimed that he signed an agreement and that one of his friends paid a retainer. He testified that he was surprised when Smith, not McGee, defended him at trial. After Movant testified, the motion court admitted as evidence the stalking trial transcript and court file, along with some direct appeal documents, and recessed to review the documentary evidence.

When court reconvened, the State argued in part that Movant had abandoned his IAC claims by not offering testimony on them. Movant's counsel replied that the underlying record in evidence was enough. The judge said he would sustain the motion and told Movant's counsel to prepare a proposed order.

In its written order entered seven months later, the motion court vacated Movant's conviction and ordered a new trial based on findings that Movant's PCR testimony was credible and that:

• Trial counsel was ineffective in not challenging the charge or verdict directing instruction on First Amendment grounds;

• Trial counsel gave ineffective advice as to self-incrimination; • Appellate counsel was ineffective in filing an incomplete legal file and not challenging the stalking statute's constitutionality; and

• The trial court erred in not allowing Movant to proceed to jury trial with counsel of his choice.

The State challenges all of these on appeal.

General Legal Principles

A successful IAC claim requires proof of (1) counsel's deficient performance, and (2) resulting prejudice. See Dawson v. State, 315 S.W.3d 726, 731 (Mo.App.2010) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). If either prong is not met, the claim fails with no need to consider the other. Id.

Courts assess counsel's performance with deference. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. “Counsel is strongly presumed to have rendered adequate assistance and made all decisions in the exercise of reasonable professional judgment.” State v. Booker, 945 S.W.2d 457, 459 (Mo.App.1997). Movant's burden is to overcome this presumption by a preponderance of the evidence. State v. Holcomb, 956 S.W.2d 286, 295 (Mo.App.1997).

As to prejudice, a different result must have been reasonably probable (not merely conceivable) but for counsel's deficiencies. Dawson, 315 S.W.3d at 731.

We reverse only when our review of the whole record firmly and definitely convinces us that a mistake was made. Tisius v. State, 183 S.W.3d 207, 212 (Mo. banc 2006). We defer to the motion court's assessments of witness credibility. Wilkins v. State, 308 S.W.3d 778, 783 (Mo.App.2010).

Analysis

Point I

Point I addresses Movant's claim, accepted by the motion court, of trial court error in not letting Movant be represented by McGee. We need not detail our doubts about this finding since the motion court clearly erred in considering a claim that Movant could have raised on direct appeal.

If a claim “was apparent at trial, then it is an issue for direct appeal, not a Rule 29.15 proceeding.” Tisius, 183 S.W.3d at 212.Rule 29.15 cannot be used to review matters which were or should have been raised on direct appeal. State v. Tolliver, 839 S.W.2d 296, 298 (Mo. banc 1992). Even constitutional claims that could have been appealed are not grounds for PCR unless fundamental fairness so requires, and then, only in rare and exceptional circumstances. See Tisius, 183 S.W.3d at 212;Tolliver, 839 S.W.2d at 298;Glaviano v. State, 298 S.W.3d 112, 114 (Mo.App.2009). Circumstances known by a movant during trial are not “rare and exceptional.” See, e.g., Glaviano, 298 S.W.3d at 116 (no review of claim that trial court boosted sentence because movant exercised his right to trial); Purvis v. State, 215 S.W.3d 745, 748 (Mo.App.2007) (refusing to review alleged instructional error); Phillips v. State, 214 S.W.3d 361, 364–65 (Mo.App.2007) (no review of complaint that movant was denied right to represent himself).

By his own testimony, Movant was aware of this issue before voir dire. He witnessed and took part in relevant discussions of record on the first two days of trial. The motion court did not suggest, nor can we find, rare and exceptional circumstances justifying Rule 29.15 review of this trial error claim.⁵

Being firmly and definitely convinced that the motion court should not have considered Movant's choice of counsel claim, we grant Point I.

Points II, III, & VI

These points address findings that trial and appellate counsel were...