Rowland v. State

• Decision Date: 16 June 2020
• Docket Number: No. SD 36154,SD 36154
• Citation: 605 S.W.3d 125
• Parties: Julian ROWLAND, Respondent, v. STATE of Missouri, Appellant.
• Court: Missouri Court of Appeals

605 S.W.3d 125

Julian ROWLAND, Respondent,

v.STATE of Missouri, Appellant.

No. SD 36154

Missouri Court of Appeals, Southern District, Division One.

FILED: June 16, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied July 9, 2020

Application for Transfer to Supreme Court Denied September 1, 2020

Appellant's attorneys: Eric S. Schmitt, Atty. Gen., and Katharine Dolin, Asst. Atty. Gen.

Respondent's attorney: Tyler P. Coyle.

GARY W. LYNCH, P.J.

After his first trial resulted in a hung jury, Julian Rowland ("Movant") was tried a second time on the same charges and found guilty of one count of first-degree rape and two counts of first-degree sodomy against G.F. Movant thereafter sought and the motion court granted Rule 29.15¹ post-conviction relief ("PCR") on Movant's claim that the attorney who represented him in the underlying criminal proceedings, Daniel Dodson ("trial counsel"), was ineffective for failing to call Alicia Toothman ("Toothman") as a witness at Movant's trial because she could have provided testimony supporting his defense theory.

The State appeals, asserting in three points that the motion court clearly erred because Movant 1) failed to prove Toothman would have testified at his trial, 2) failed to overcome the presumption that defense counsel's failure to call Toothman as a witness was reasonable trial strategy, and 3) failed to prove that the absence of Toothman's trial testimony was prejudicial. Finding no merit in any of the State's points, we affirm.

Factual and Procedural Background

The criminal charges against Movant alleged generally that, on June 16, 2015, Movant engaged in acts of sexual intercourse with G.F. by the use of forcible compulsion. At Movant's second trial on those charges, the jury heard two different accounts of what transpired between Movant and G.F. on the date in question. The undisputed facts from both accounts are that G.F, an employee and representative for a property management company, drove Movant, a prospective client, in her car to tour various available rental properties. During the tour of one of the preselected properties, which happened to be vacant, G.F. was showing Movant around and opened a closet door in a bedroom. Movant then approached G.F. from behind and put his hands on her waist.

The testimony provided by G.F. and Movant differ as to what then followed. In brief, G.F. claimed that Movant forcibly subjected her to acts of rape and sodomy, while Movant claimed that they engaged in a consensual sexual encounter.

Thereafter, G.F and Movant departed the property together and drove to G.F.’s office, a two-minute drive. Each testified to a different account of what transpired during that drive. According to G.F., she was tearful but was trying to hold it together because she thought Movant might try to run away. She claims she did not , however, try to joke or laugh with Movant. Sometime during the drive, Movant asked if he could get a deal on the apartment. G.F. responded, "maybe, let me see, I can call George right now" and placed a call to her office, asking for George. G.F. explained that George was not a real person but a code word to be used when an employee was in trouble or needed help.

The fellow employee who received G.F.’s call testified that the call was placed sometime around 1:15 p.m. or 1:30 p.m. and described G.F.’s voice as sounding "quivery" during their conversation.

Movant testified that before G.F. placed her phone call during the drive, he and she were joking and laughing about their sexual encounter. Movant claimed that, while G.F. was laughing, he received a phone call from his nurse. It was not until after he got off of the phone that he asked if G.F. could get him a deal on the apartment, at which point G.F.’s mood changed and she made the phone call asking for George.

Following the close of all evidence, the jury began their deliberations at 6:33 p.m. on June 17, 2016. After nearly three hours of deliberation, the jury sent the following note to the trial court:

After discussion, our jury is not unanimous as to the guilt of Julian Rowland. There are at least 4 of our panel to [sic] disagree that [G.F.] did not give consent to the physical act. Can we as a jury disagree and be considered a "hung jury" or must we decide guilty beyond a reasonable doubt or "not guilty" if we are not unanimous.

At 9:28 p.m., the trial court read the "hammer" instruction,² and, at approximately 10:20 p.m., the jury returned guilty verdicts on all charged counts.

Following his convictions, the trial court sentenced Movant to three consecutive seven-year terms of imprisonment. His convictions and sentences were later affirmed on direct appeal in State v. Rowland , 528 S.W.3d 449 (Mo.App. 2017).

Thereafter, Movant filed timely pro se and amended PCR motions. Movant's amended PCR motion claimed, in pertinent part, that "Trial counsel was ineffective for failure to investigate and call [Toothman] as a defense witness" ("IAC claim"). In support of his IAC claim, Movant alleged that Toothman was the nurse who called Movant's cell phone while G.F. was driving Movant back to her office, that Movant informed trial counsel about Toothman and how to contact her, that Toothman would have testified if called at Movant's trial that she overheard a woman laughing in the background during the call with Movant, that a reasonably competent attorney would have called Toothman to testify because doing so would have contradicted G.F.’s testimony and corroborated Movant's testimony, and that a reasonable probability exists that Movant would not have been convicted had Toothman been called.

The same judge who presided over the two trials involving the underlying charges against Movant also served as the PCR motion court. An evidentiary hearing on the amended PCR motion was held at which Movant presented, in pertinent part, testimony from Toothman and trial counsel addressing the allegations of the IAC claim.³ Ultimately, the motion court granted the IAC claim. Its findings of fact and conclusions of law, in pertinent part, were as follows:

[Toothman] testified that had she been subpoenaed and called as a witness at trial, her testimony would be substantially the same as her testimony at post-conviction hearing. She would have testified if called as a witness.

[Trial] counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances by failing to call [Toothman] as a defense witness to testify at trial. [Toothman]’s testimony would have contradicted G.F.’s testimony that she and Movant were not laughing and joking in the car. Her testimony would have corroborated Movant's testimony on the crucial, disputed issue of G.F.’s demeanor just minutes after the sexual activity had taken place. The testimony would have supported the defense's theory of the case that the sexual contact was consensual.

Though Movant informed trial counsel of [Toothman]’s whereabouts and of her anticipated testimony, trial counsel failed to call her as a witness and failed to request a continuance to ensure her presence at trial. No reasonable trial strategy accounts for trial counsel's failure to investigate and call [Toothman] as a witness and Movant was prejudiced by [trial counsel]’s failure to do so. Trial counsel was aware that the first jury was deadlocked, and that the jury in the second trial would be gauging the respective credibility of Movant and G.F. as each gave contradictory versions of the events that that [sic] took place on June 16, 2015. He knew that a separate independent witness, [Toothman], was available to confirm Movant's account and contradict G.F.’s account of the events that took place in the car ride minutes after the sexual activity occurred. Even without this testimony, the jury in the second trial that ultimately convicted Movant was divided 8-4 after hours of deliberation.

The State timely appeals.

Standard of Review

We review a trial court's findings of post-conviction relief to determine whether the findings and conclusions of the motion court are clearly erroneous. Skillicorn v. State , 22 S.W.3d 678, 681 (Mo. banc 2000). "The motion court's findings and conclusions are clearly erroneous only if, after the review of the record, the appellate court is left with the definite and firm impression that a mistake has been made." Soto v. State , 226 S.W.3d 164, 166 (Mo. banc 2007). The motion court's findings are presumed to be correct. Davis v. State , 486 S.W.3d 898, 905 (Mo. banc 2016). These standards apply regardless of whether the movant or the State appeals. Schaal v. State , 179 S.W.3d 907, 910 (Mo. App. S.D. 2005).

Stark v. State , 553 S.W.3d 378, 381 (Mo.App. 2018). "The trial court has the ‘superior opportunity to determine the credibility of witnesses,’ and this Court defers to the trial court's factual findings and credibility determinations." Zink v. State , 278 S.W.3d 170, 178 (Mo. banc 2009) (quoting State v. Rousan , 961 S.W.2d 831, 845 (Mo. banc 1998) ).

Discussion

In order to prove an IAC claim, the movant must demonstrate (1) that counsel's representation failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney rendering similar services under similar circumstances (performance prong); and (2) that the movant was prejudiced as a result of counsel's failure (prejudice prong). Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Sanders v. State , 738 S.W.2d 856, 857 (Mo. banc 1987). To satisfy the performance prong, a 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." State v. Simmons , 955 S.W.2d 729, 746 (Mo. banc 1997). In order to demonstrate the requisite prejudice, a movant must show that there is a "reasonable probability that, but for counsel's...