Pearson v. State

• Decision Date: 13 January 2009
• Docket Number: No. WD 68719.,WD 68719.
• Citation: 280 S.W.3d 640
• Parties: Clifford W. PEARSON, Respondent, v. STATE of Missouri, Appellant.
• Court: Missouri Court of Appeals

280 S.W.3d 640

Clifford W. PEARSON, Respondent, v. STATE of Missouri, Appellant.

No. WD 68719.

Missouri Court of Appeals, Western District.

January 13, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 3, 2009.

Application for Transfer Denied May 5, 2009.

Jamie P. Rasmussen, Jefferson City, Mo, for Appellant.

Susan L. Hogan, Kansas City, MO, for Respondent.

Before: THOMAS H. NEWTON, C.J., JAMES M. SMART, JR., and JAMES EDWARD WELSH, JJ.

THOMAS H. NEWTON, Chief Judge.

The State appeals the circuit court's judgment granting Clifford Pearson's Rule 29.15 post-conviction relief motion based on ineffective assistance of counsel. The motion court concluded that James v. State, 222 S.W.3d 302 (Mo.App. W.D.2007) required reversal of Mr. Pearson's conviction. Because the analysis in James does not apply to Mr. Pearson's case, the judgment is reversed.

Factual and Procedural Background

Ronald Shannon was found dead in his apartment with multiple blunt and sharp force injuries. A bloody kitchen knife and multiple bloodstains were also found in the apartment. Mr. Shannon's car was later located with a broken passenger window, the keys in the ignition, and bloodstains on the driver's side interior. The case remained unsolved for three years.

Sherita Stanley Pearson, Mr. Pearson's wife, was subsequently arrested on unrelated charges. She directed the police to her husband for Mr. Shannon's murder. Subsequent blood samples revealed Mr. Pearson's blood to be a match to that found in Mr. Shannon's apartment and car. Mr. Pearson was charged with first-degree murder and pled not guilty. Burt Haigh served as Mr. Pearson's lead defense counsel.

During voir dire, Mr. Haigh asked the jury panel if any of its members had faced criminal charges in a trial. No one responded. Mr. Haigh then asked if anyone would find it difficult to presume Mr. Pearson innocent.

MR. HAIGH: That's my question. Because you, as citizens of the United States of America, have not had to go through that process, are you not going to believe that this person, as he instructed you to do, should be and is presumed innocent under the law by you sitting here right now, with the limited facts that you know?

Would it be difficult for someone in this room to presume Mr. Pearson not guilty, knowing that? Anybody feel that way at this point? Yes, sir, what's your name?

VENIREMAN RICE: Bill Rice.

MR. HAIGH: Thank you, Mr. Rice.

VENIREMAN RICE: I'm looking at it in a little bit different direction and I think after listening to all the questions about can you be fair with the prosecution, can you be fair with the defendant, and all of us, me included, think I can do that. But the thing that I have to admit to myself is there is also a subconscious bias with me because — not because I've been mistreated by the police, but because I have always been treated fairly with the police.

So, I almost have a subconscious thought that goes through the back of my mind that how could this be wrong?

MR. HAIGH: Okay.

VENIREMAN RICE: Obviously, somebody — something has happened here.

MR. HAIGH: Right.

VENIREMAN RICE: And they would not go to the expense of all of this. And, you know, the trial hasn't occurred yet, so I understand the presumption of innocence. But I also, having never been dealt with by the police in any way except fairly, it has an almost subconscious ring to it.

MR. HAIGH: My question for you, then, Mr. Rice, is, are you a person that feels like you have the ability to make that decision, to decide that you're going to presume him not guilty because that's what the instruction tells you to do and that's what your role in this process will be or do you feel that because of your past experience that's a decision you really can't make?

It's the situation that's just who you are right now, you can't presume him not guilty or innocent at this stage in the trial? And you're the final arbiter of that.

VENIREMAN RICE: I think I can be fair about it, but I have to admit that there is a bias.

MR. HAIGH: Okay. And we don't have to talk about this in a vacuum. There's been an arrest, there's been accusations made, and evidence gathered, the police have submitted this case to the prosecutor, and he's been charged with a crime, correct? So far, that's all out in the open.

Do you believe that everybody that is accused of a crime by the police in our country is necessarily guilty of that crime?

VENIREMAN RICE: No.

MR. HAIGH: And you think there are bona fide examples of people going to trial and being not guilty?

VENIREMAN RICE: Yes.

MR. HAIGH: And, knowing that, do you think it's within your own ability to make the decision that you're going to hold that presumption of innocence for Mr. Pearson?

VENIREMAN RICE: I think I will carry that primarily.

MR. HAIGH: I'm sorry?

VENIREMAN RICE: I think I would carry that primarily, the presumption of innocence.

MR. HAIGH: Okay. And the prosecutor talked a little bit about how long you have to hold up that presumption of innocence and not make judgments about the case. And one of the most important things that I'd like for the panel to understand is that you hear the opening statements and the evidence and the closing arguments, then when you decide with your fellow jurors and talk about it can you start making decisions.

So, you've got to hold your mind open for quite a while, especially until after closing arguments. That's when the lawyers get the chance to really put the case together for you, the details that you're pulling from the evidence is the only time you'll hear the theory of the defense in this case.

So, do you think it's possible for you to wait and hold your mind open until the deliberation process with your fellow jurors?

VENIREMAN RICE: I think so, yes.

MR. HAIGH: And the last follow-up question for you, Mr. Rice — I think it's working with you here — there's been one oath administered just so far that we would answer the questions fairly. If you're picked as a juror — and everybody should understand this — there's a second oath you'll be taking. And only the jurors impaneled on the case take that oath, and it's to extend that presumption of innocence in this case to Mr. Pearson.

And one of the concerns that people have — and you tell me if this is going to apply to you — is whether you can be true to that oath. And so I think that's my opening question for you, Mr. Rice is if you feel like if you took that oath that you could be true to that oath and hold that presumption open for him?

VENIREMAN RICE: If I couldn't, I wouldn't take the oath.

MR. HAIGH: Do you feel like that's something you're prepared to do?

VENIREMAN RICE: Yes.

Mr. Rice did not speak again during voir dire.

Mr. Haigh made five challenges for cause against other jurors and agreed to ten challenges by the State, but he did not move to strike Mr. Rice, nor did he exercise a peremptory challenge against Mr. Rice. The trial court thought several jurors should be questioned further, but Mr. Rice was not included. Mr. Rice served on the jury. After trial, Mr. Pearson was convicted of first-degree murder. On direct appeal, Mr. Pearson asserted that the evidence was insufficient to prove the element of deliberation beyond a reasonable doubt. We affirmed his conviction and sentence in State v. Pearson, 166 S.W.3d 636 (Mo.App. W.D.2005).

Mr. Pearson subsequently filed a pro se Rule 29.15 motion. Counsel was appointed and filed an amended motion that argued, inter alia, ineffective assistance of trial counsel based on Mr. Haigh's failure to challenge the empaneling of Mr. Rice. The motion court held an evidentiary hearing in March of 2007. At the hearing, it was adduced that Mr. Haigh had ten years experience as a public defender and had served as lead counsel in approximately twenty-five felony trials. Mr. Haigh stated that he had no recollection as to why the defense did not challenge Mr. Rice. He testified he could "certainly" see grounds for removing Mr. Rice because Mr. Rice "indicated he was potentially biased." On cross-examination, Mr. Haigh admitted that Mr. Rice had subsequently indicated he could be fair and evaluate the evidence.

In August of 2007, the motion court issued its judgment and findings of fact and law that included the following pertinent points:

39. During the questioning which is in issue here, Mr. Rice stated: he thought he could be fair; that an accusation is not proof of guilt; that he would keep an open mind; and, if he could not be true to his oath of a juror, he would not take the oath.

40. Mr. Haigh states he thinks the presumption of innocence is working with Mr. Rice. That suggests Mr. Haigh did not believe Mr. Rice needed to be removed.

41. Nothing in Mr. Rice's questionnaire suggests removal is needed.

42. I am not convinced that if a challenge for cause had been made that it would have been granted.¹

43. Assuming for argument that a for cause strike or peremptory strike had kept Mr. Rice off the jury, I am not convinced there is a reasonable basis to believe the result of the trial would have been different. One of the six people Mr. Haigh did peremptorily strike would have served. There is no reason to assume that person would vote to acquit.

44. My first draft concluded Movant had not met his burden of proof on this issue. That conclusion cannot be reached because of Chester James v. State of Missouri [222 S.W.3d 302 (Mo. App. W.D.2007)]; . . . James discusses an issue like this and holds that the trial court should have granted a motion to strike for cause if one had been made. That is controlling here and this conviction will be reversed. Because of James I must conclude failure to move to strike Mr. Rice was ineffective assistance.

(internal citations omitted). The State appeals.

Standard of Review

Our review of the motion court's decision on a Rule 29.15 motion is limited to determining whether the court's findings and conclusions are clearly...