Rutlin v. State

• Decision Date: 30 June 2014
• Docket Number: No. ED 100126.,ED 100126.
• Citation: 435 S.W.3d 126
• Parties: Jerry A. RUTLIN, Movant/Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

435 S.W.3d 126

Jerry A. RUTLIN, Movant/Appellant,
v.
STATE of Missouri, Respondent.

No. ED 100126.

Missouri Court of Appeals,
Eastern District,
Division Four.

June 30, 2014.

[435 S.W.3d 129]

Andrew E. Zleit, Missouri Public Defenders Office, St. Louis, MO, for appellant.

Mary Highland Moore, Assistant Attorney General, Jefferson City, MO, for respondent.

PHILIP M. HESS, Judge.
Introduction

Jerry Rutlin (Movant) appeals the trial court's judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Movant claims the motion court clearly erred in denying post-conviction relief based on his claims that: (1) his trial counsel was ineffective for failing to call Movant's former cellmate to testify at trial; and (2) appellate counsel was ineffective for failing to raise a claim on appeal that the trial court plainly erred in prohibiting the defense from implicating Movant's cellmate during closing arguments. We affirm.

Factual Background

In 2009, Movant was an inmate at the Eastern Reception Diagnostic and Correctional Center.¹ On June 1, 2009, Movant moved into a new cell that was also occupied by Reginald Parker. On that same day, corrections officers inspected Movant's cell in his presence. The inspection revealed no contraband. Prior to Movant's occupancy, the cell was inspected on May 19, 2009 and on May 27, 2009, and no contraband was found. On June 7, 2009, corrections officers David Wallace and Joshua Browers conducted a random search of Movant's cell. During the search, Wallace discovered a prison-made weapon under the mattress assigned to Movant. The weapon was hidden under clothing with Movant's name and Department of Corrections number. The weapon was a razor handle with a razor blade melted into the end of it. Wallace secured the weapon and completed the search.

Movant was charged with the class B felony of concealing a weapon on the premises of a correctional facility, in violation of § 217.360, RSMo (Supp.2003).² The case was tried to a jury. At a pre-trial hearing on a motion in limine filed by the State, the State requested that the defense be prohibited from eliciting testimony aimed at incriminating either Parker or Cedric Clerk, a fellow inmate who had previously occupied the cell. Defense counsel indicated that Clerk would testify that when he was transferred out of the cell into a segregated unit of the facility, that he left behind a weapon under his bunk. Counsel argued that Clerk's testimony would be relevant to refute the “knowledge” element of the charged offense to show that Movant did not “knowingly” possess or conceal the weapon found in his cell. After hearing arguments, the trial court agreed to allow Clerk to testify but sustained the motion with regard to prohibiting the defense from attempting to implicate Parker absent any evidence directly connecting him to the weapon.

[435 S.W.3d 130]

At trial, Clerk testified that he was serving two life sentences without the possibility of parole and that he had previously occupied Movant's cell. Clerk said that he and Movant had been friends for several years while incarcerated and that Movant had asked him to testify on his behalf. Clerk indicated that when he moved out of the cell on or around May 29, 2009, he left behind a weapon beneath some clothes under his bunk. He described the weapon he left as a razor blade attached to the handle of a black comb.

Movant testified in his own defense. While admitting that correctional officers found a weapon in his cell, Movant testified that he was “set-up,” that the weapon did not belong to him, and that he did not know to whom the weapon belonged.³ Movant indicated that if he had hidden a weapon, it would not have been found. Movant said that he asked Clerk if he had left “something in that cell” when he moved out and that Clerk indicated that he had left a weapon in the cell. Movant admitted that his cell had been inspected on June 1, 2009 and no weapon was found. The jury found Movant guilty of the charged offense and he was sentenced, as a prior and persistent offender, to life imprisonment. Movant filed a motion for new trial, which was denied. At the sentencing hearing, Movant indicated that while he had some issues to raise on appeal, he was otherwise satisfied with counsel's services. On direct appeal, this Court affirmed his conviction and sentence in a per curiam order and memorandum in State v. Rutlin, 383 S.W.3d 63 (Mo.App. E.D.2012).

Movant subsequently filed a Rule 29.15 pro se motion for post-conviction relief. An amended motion was filed by appointed counsel alleging ineffective assistance of both trial counsel and appellate counsel.⁴ In June 2013, the motion court issued its judgment denying post-conviction relief without an evidentiary hearing. Movant appeals.

Standard of Review

Appellate review of the denial of a motion for post-conviction relief is limited to a determination as to whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). A judgment is clearly erroneous when there is a definite and firm impression that a mistake has been made after reviewing the entire record. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009). The trial court's ruling on a post-conviction motion is presumed correct. Id.

“There is a strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment.” White v. State, 939 S.W.2d 887, 895 (Mo. banc 1997). To prove ineffective assistance of counsel, the movant must show that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney and that he was thereby prejudiced. Glass v. State, 227 S.W.3d 463, 468 (Mo. banc 2007). To demonstrate prejudice, the movant show that absent the claimed errors, there is a reasonable probability that the outcome of the trial would have been different.

[435 S.W.3d 131]

Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009). Movant must overcome the strong presumption that counsel's performance was reasonable and effective. Bradley v. State, 292 S.W.3d 561, 564 (Mo.App. E.D.2009).

Discussion Point I: Failure to Call a Witness

In his first point, Movant contends that the motion court erred in denying his post-conviction motion without an evidentiary hearing because he alleged unrefuted facts that would have entitled him to post-conviction relief. Specifically, Movant argues that his trial counsel was ineffective for failing to investigate and call his former cellmate, Reginald Parker, to testify at trial. Movant claims that Parker's testimony would have revealed “his strong motive and opportunity to plant a weapon” under Movant's bunk. Movant asserts that Parker would have testified that he resided in the cell with Movant, that he was an eyewitness to the search, and that he did not believe the search was random. Movant maintains that without Parker's testimony, he was unable to present a complete defense by establishing all of the relevant circumstances, and as a result, the jury was left with an “incomplete context” for his case. Movant claims that defense counsel's failure to call Parker to testify was unreasonable because he was the “only other person assigned to the cell where the weapon was found.”

The motion court is not required to grant an evidentiary hearing unless: (1) the movant alleges facts, not conclusions, which if true, would entitle movant to relief; (2) the facts alleged are not refuted by record; and (3) the matters complained of prejudiced movant. State v. Ferguson, 20 S.W.3d 485, 503 (Mo. banc 2000). To warrant a hearing on a claim that defense counsel was ineffective for failing to call a witness to testify, the movant must allege: (1) the identity of the witness; (2) what the witness's testimony would have been; (3) that counsel was informed of the witness's existence; and (4) the witness was available and would have testified. State v. Simmons, 875 S.W.2d 919, 923 (Mo.App. W.D.1994). Movant must also show that the witness's testimony would have provided a viable defense. Glass, 227 S.W.3d at 468. “Failure to interview a witness is rarely sufficient to support a claim of ineffective assistance of counsel.” Teaster v. State, 29 S.W.3d 858, 860 (Mo.App. S.D.2000). Trial counsel's decision not to call a witness to testify is presumptively a matter of trial strategy and will not support a claim of ineffectiveness unless the movant clearly establishes otherwise. Whited v. State, 196 S.W.3d 79, 82 (Mo.App. E.D.2006).

The burden is on the movant to plead unrefuted facts establishing not only who the witness is, but also what the witness would testify to, if called, and that the witness's testimony would provide a viable defense. White, 939 S.W.2d at 896. Where the proposed testimony would merely have impeached the State's witnesses, relief on a claim of ineffective assistance of counsel is not warranted. McClendon v. State, 247 S.W.3d 549, 556 (Mo.App. E.D.2007). Further, “neither the failure to call a witness nor the...