Obasogie v. State

Decision Date02 December 2014
Docket NumberNo. ED 100784,ED 100784
PartiesOmoruyi Obasogie, Appellant, v. State of Missouri, Respondent.
CourtMissouri Court of Appeals

Matthew Huckeby, St. Louis, for appellant.

Richard Anthony Starnes, Jefferson City, for respondent.



Omoruyi Obasogie (Movant) appeals from the judgment of the motion court that denied his motion for post-conviction relief after an evidentiary hearing. Finding no error, we affirm.

At about 1:00 a.m. on November 2, 2009, Movant, Anwar Randle, and an unidentified man broke into a home occupied by Cameron Bass and Kena Coleman, who were asleep at the time. Both Bass and Coleman knew Randle but did not know Movant or the third man. Bass and Coleman awoke, and Coleman went into the hallway to investigate while Bass hid in the bedroom closet. Coleman first saw Randle coming out of a bedroom door. The lights were on in the laundry room and in the kitchen. Coleman then saw Movant and the third man, armed with a small handgun and a shotgun respectively, enter her home through the back door. She screamed at them to get out of her house. Randle shoved Movant into her bedroom. Movant and Randle then entered the bedroom looking for Bass. Movant pointed the handgun at Bass and told him to get out of the closet. Movant fired the gun but struck no one. Bass fled through the closet into an adjacent bedroom. Randle and the unidentified man pursued him and beat him with the butt of a shotgun and a glass bottle. Eventually, the three intruders left.

Bass then called the police. The resulting police dispatch stated that three black males had entered a residence and shots had been fired. A St. Louis County police officer observed three black males, Movant and the other two intruders, driving in the area. The officer initiated a traffic stop on the vehicle. Movant, who was driving the car, pulled over, and the unidentified man exited and fled on foot. Movant and Randle remained in the car and sped away at high speed. They were later apprehended by multiple police officers in a parking lot.

Movant was charged with burglary in the first degree (Count I), assault in the first degree (Count III), and two counts of armed criminal action associated with the other felonies (Counts II and IV). At trial, the State cross–examined Movant regarding his prior convictions. Movant's counsel objected to the State's examination on this point. After a sidebar discussion, the court asked the prosecutor to stop questioning Movant about the convictions, to which the prosecutor agreed. At closing argument, the State made two points, among others. First, as to the unnamed third perpetrator who escaped arrest, the State argued that Movant or his counsel knew Randle's current residence, and that Randle knew the identity of the third perpetrator. Second, the State asked the jurors to determine whose testimony had been truthful: that of Coleman and Bass or, rather, Movant. The jury convicted him of burglary in the first degree, assault in the second degree, and two counts of armed criminal action. Movant was sentenced to three 12–year sentences and one 7–year sentence, all to be served concurrently.

Movant appealed, asserting four points of error. This Court affirmed Movant's convictions in State v. Obasogie, 370 S.W.3d 888 (Mo.App.2012). Movant timely filed a motion for post-conviction relief pursuant to Rule 29.15, subsequently amended by appointed counsel. Chief among Movant's allegations was that appellate counsel was ineffective for failing to assert a claim of insufficiency of the evidence regarding Count II, the armed criminal action count associated with Count I, burglary in the first degree.

The motion court held an evidentiary hearing on May 25, 2013, after having issued writs of habeas corpus for Movant and Randle to be present at the hearing. The Missouri Department of Corrections apparently misread one of the writs, thinking that the motion court had issued two writs for Movant instead of one each for Movant and Randle, and failed to deliver Randle. Movant requested a continuance of the hearing on this basis, which the motion court denied, noting that most of the claims had nothing to do with Randle and that it would bring him in if any of the claims required his presence to resolve. Movant's trial counsel, appellate counsel, Movant, and Movant's mother each testified at the hearing. The motion court denied Movant's amended motion for post-conviction relief and made findings of fact and conclusions of law.

The motion court found that the cases relied on by Movant in support of his contention that appellate counsel was ineffective for failing to assert a claim of insufficiency of the evidence on direct appeal were distinguishable. It noted that in the cases cited by Movant that the defendants had entered the homes unseen by the victims and were already inside the houses when it was discovered that they were armed with weapons. It found that in the present case, in contrast, Coleman saw Movant and the third man both armed with firearms when they entered her house through the back door, and that Movant used that same gun to assault Bass in the bedroom. The motion court found that Coleman's testimony was sufficient to support Count II and found that appellate counsel was not ineffective for failing to assert this claim on direct appeal.

Regarding Movant's other claims of ineffective assistance of trial counsel, the motion court found that trial counsel's decision not to submit a lesser-included offense for assault in the third degree was reasonable trial strategy, as there was no basis for such an instruction. It also found that Movant was not credible regarding his testimony that he gave Randle's contact information to trial counsel or that trial counsel never told him that he had the right not to testify and that his prior convictions could be introduced if he did testify. The motion court both explicitly and implicitly found trial counsel's testimony on these issues to be credible. It concluded that Movant was provided effective assistance of counsel, that he was not denied rights under the U.S. Constitution or the Missouri Constitution, and that he failed to establish any basis to have his sentence vacated, set aside, or corrected. Movant now appeals from this judgment.

Our review of the motion court's denial of post-conviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Helmig v. State , 42 S.W.3d 658, 665–66 (Mo.App.2001). Findings and conclusions are clearly erroneous only if, after a review of the record, we are left with a definite and firm impression that a mistake was made. Id.

To prove ineffective assistance of counsel, Movant must demonstrate by a preponderance of the evidence that: (1) counsel's performance failed to conform to the degree of skill, care and diligence of a reasonably competent attorney under similar circumstances, and (2) Movant was prejudiced by counsel's poor performance. Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002), citing Strickland v. Washing ton, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first prong of the Strickland test, Movant must overcome a presumption that the challenged action constituted sound trial strategy. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998). The second Strickland prong necessitates that Movant “show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Deck v. State, 68 S.W.3d 418, 429 (Mo.2002). If Movant fails to prove either prong of the Strickland test, we need not consider the remaining prong. Buckner v. State, 35 S.W.3d 417, 420 (Mo.App.2000).

In his first point relied on Movant contends that the motion court clearly erred in denying his amended motion for post–conviction relief because he proved by a preponderance of the evidence that he was denied his constitutional rights to due process of law and effective assistance of counsel. He avers that appellate counsel was ineffective for failing to assert on direct appeal that the trial court erred in overruling his motion for judgment of acquittal at the close of all evidence as to Count II on the grounds that the State failed to make a submissible case and that there was insufficient evidence from which a reasonable jury could find him guilty. But for this alleged error, Movant claims that there is a reasonable probability that the outcome of his direct appeal would have been different.

To prevail on a claim of ineffective assistance of appellate counsel, a movant must establish that the appellate counsel failed to assert a claim of error that was so obvious that a reasonably competent attorney would have perceived the error and asserted it. Tisius v. State, 183 S.W.3d 207, 215 (Mo. banc 2006). The purported error must have been sufficiently serious so as to produce a reasonable probability that if it had been raised, the outcome of the appeal would have been different. Id. The movant must overcome the presumption that, under the circumstances, the challenged action could be considered sound strategy. Holman v. State, 88 S.W.3d 105, 110 (Mo.App.2002). Appellate counsel has no obligation to assert every issue raised in the motion for a new trial he makes the strategic decision to drop some arguments in favor of others. Id.

Appellate counsel testified at the evidentiary hearing that he should have raised the issue of insufficiency of evidence regarding Count II on direct appeal, and that he did not have a strategic reason for not asserting it, but rather that it seemed that he “just missed the insufficiency in that claim.” Appellate co...

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2 cases
  • Obasogie v. Norman
    • United States
    • U.S. District Court — Eastern District of Missouri
    • March 18, 2019
    ...Supreme Court Rule 29.15. The trial court denied the motion after a hearing, and the Court of Appeals affirmed. Obasogie v. State, 457 S.W.3d 793 (Mo. Ct. App. 2014). On December 7, 2015, petitioner filed his original federal habeas petition. Page 2 The facts supporting the jury's verdict w......
  • State v. Jones
    • United States
    • Missouri Supreme Court
    • January 26, 2016
    ...had a gun, there was no evidence that he used his gun to gain entry into [the] [v]ictim's apartment." Id.Finally, in Obasogie v. State, 457 S.W.3d 793 (Mo.App.E.D.2014), a man entered the victim's home while the victim was asleep. Obasogie, 457 S.W.3d at 795. The victim awoke and saw the de......

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