Salazar v. State

• Decision Date: 15 September 2016
• Docket Number: No. SD 34123,SD 34123
• Citation: 499 S.W.3d 738
• Parties: Eddie A. Salazar, Appellant, v. State of Missouri, Respondent.
• Court: Missouri Court of Appeals

499 S.W.3d 738

Eddie A. Salazar, Appellant,

v.State of Missouri, Respondent.

No. SD 34123

Missouri Court of Appeals, Southern District, Division Two .

Filed: September 15, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied October 5, 2016

Application for Transfer to Supreme Court Denied November 23, 2016

Appellant'(s) Attorney: Ellen H. Flottman, of Columbia, Missouri

Respondent'(s) Attorney: Chris Koster, Attorney General, and Karen Louise Kramer, Assistant Attorney General, of Jefferson City, Missouri

WILLIAM W. FRANCIS, JR., J.

Eddie A. Salazar (“Salazar”) appeals from the judgment of the motion court denying his amended Rule 29.15¹ motion to set aside his conviction for the class A felony of murder in the second degree. See § 565.021. Salazar challenges the judgment of the motion court in four points on appeal. Finding no merit to any of Salazar's points, we affirm the judgment of the motion court.

Factual and Procedural Background²

We set forth only those facts necessary to complete our review. In doing so, we view the evidence in the light most favorable to the motion court's judgment. McCauley v. State , 380 S.W.3d 657, 659 (Mo.App.S.D.2012).

On the evening of February 4, 2010, Salazar's son, while in Salazar's care, died from blunt force trauma to the head. Salazar then threw his son's body into a nearby river. He staged cuts and scrapes on himself to make it appear as though he had been in a fight. Salazar then called authorities and claimed that two men had entered his home and kidnapped his son. After Salazar gave several contradictory versions of what happened, his son's body was found in the river, and Salazar was charged by amended information as a prior offender for the class A felony of second-degree murder.

During a pre-trial motion hearing, the following colloquy occurred:

BY [TRIAL COUNSEL]: Judge, I am concerned about the way I understand we're going to conduct the voir dire with, I guess, 56 jurors, potential jurors brought into the courtroom. If we do that, that is going to take up every bit of the seating in the courtroom. I understand there is only limited seating in the courtroom, but on the other hand Mr. Salazar does have a right under the Sixth and the Fourteenth Amendments to the U.S. Constitution, Article I, Section 18A of the Missouri Constitution to a public trial. I'm sure there will probably be family members of Mr. Salazar, and perhaps other people that would like to attend the trial.

And I would ask for some accommodations, so it is possible to have a public presence during the entire trial including voir dire. Otherwise, I think he would be denied his right to a public trial.

BY THE COURT: They can attend the trial, but there is not going to be room in here during the voir dire and there is never room in here for the voir dire. And so I don't know of any accommodations that we can make. So that request is going to be denied.

On the morning of trial, the following occurred:

BY [TRIAL COUNSEL]: I think, finally, Judge, I've got this motion on the record from last week, but I do object to the exclusion of the public during voir dire on the basis of the 6th and 14th amendments to the United States Constitution Article I, Section 8 today and according to the Missouri State Constitution and the First Amendment to the United States Constitution.

BY THE COURT: All right. And so the record is clear we have summons—how many people, Carl? 60-63 people. We have normally room for 43 individuals in our courtroom. To make room for the extra people the Court has taken out chairs that are in front of the bar and put in a bench which still accommodates 53 people. 56 people.

And so that takes up every seat that we have in this courtroom. Counsel's table is full. In fact, I don't know where—if the prosecutors were planning on putting their ... stuff. We have to cram them in as it is. So there is no room for anybody else in this courtroom and because of that during voir dire anybody else will be excluded from the courtroom.

BY [TRIAL COUNSEL]: Motion is overruled and continuing, Judge?

BY THE COURT: Yes.

At trial, the State moved for admission in evidence of State's Exhibit 3, designated as a “DVD [Salazar] interview HP,” which referenced Salazar's prior prison time and drug use; State's Exhibit 6, designated as a “DVD [Salazar] interview CPD,” also referencing Salazar's prior prison time and drug use; and State's Exhibit 13, designated as a “Photo [Salazar] rt side stomach,” showing scratches on Salazar's body, but which also showed a tattoo Salazar claimed to be a “gang tattoo.”³ Trial counsel made general objections to the introduction of these exhibits, but the objections were overruled and the exhibits were admitted. Trial counsel did not make specific and timely objections to the references to drug use and prison time in State's Exhibit 6.

The jury found Salazar guilty of second-degree murder, and Salazar was sentenced to life in prison. After his conviction was affirmed by this Court on direct appeal, mandate issued December 26, 2013.

On March 24, 2014, Salazar filed a timely pro se Rule 29.15 motion for post-conviction relief. On April 23, 2014, post-conviction counsel was appointed. On July 20, 2014, after an extension was granted, counsel filed a timely Rule 29.15 amended motion. See Moore v. State , 458 S.W.3d 822, 825 (Mo.banc 2015).

A hearing was held on June 3, 2015. Salazar's trial counsel testified at the hearing, and Salazar's appellate counsel testified via deposition. On September 9, 2015, the motion court entered its “Findings of Fact, Conclusions of Law and Judgment” denying Salazar's Rule 29.15 motion. This appeal followed.

In four points on appeal, Salazar asserts:

1. The motion court clearly erred in finding that trial counsel was not ineffective for failing to make an offer of proof that there were people who attempted to attend voir dire, but were excluded, thereby depriving Salazar of a fair trial.

2. The motion court clearly erred in finding that appellate counsel was not ineffective for failing to raise on Salazar's direct appeal the issue that the trial court erred in admitting State's Exhibit 13, which contained evidence of what Salazar claims is a gang tattoo on his person.

3. The motion court clearly erred in finding that trial counsel was not ineffective for failing to object to the introduction of State's Exhibit 6, which contained a videotaped interview of Salazar in which he referenced his prior drug use and prison time.

4. The motion court clearly erred in finding that appellate counsel was not ineffective for failing to raise on Salazar's direct appeal the trial court's error in allowing the introduction of State's Exhibit 3, which contained a videotaped interview of Salazar in which he referenced having used drugs and serving prison time.

Standard of Review

This Court's review of a motion court's denial of a motion for 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). A motion court's findings and conclusions are “clearly erroneous only if this Court is left with a definite and firm impression that a mistake has been made.” Mallow v. State , 439 S.W.3d 764, 768 (Mo.banc 2014). A motion court's findings are presumed correct, and we defer to the motion court's credibility determinations. Davis v. State , 486 S.W.3d 898, 905 (Mo.banc 2016).

Under Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a movant must show that (1) counsel failed to exercise the skill and care of a reasonably competent attorney, and (2) movant was prejudiced by counsel's deficient representation. For the first prong of the test, there is a strong presumption that counsel's conduct was reasonable. Smith v. State , 370 S.W.3d 883, 886 (Mo.banc 2012). To overcome this presumption, movant must point to “specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance.” Zink v. State , 278 S.W.3d 170, 176 (Mo.banc 2009) (internal quotation and citation omitted). Under the second prong, prejudice occurs only where there is a reasonable probability that, but for counsel's deficient representation, the outcome of the trial would have been different. Deck v. State , 68 S.W.3d 418, 429 (Mo.banc 2002).

For ease of analysis, we address Salazar's points out of order.

Analysis

Point I: Offer of Proof Regarding Public Presence in Voir Dire

In Salazar's first point on appeal, he claims that the motion court clearly erred in finding that trial counsel was not ineffective for failing to make an offer of proof regarding family members and press that were excluded from voir dire, thereby depriving Salazar of a public trial.

“[T]he Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.” Presley v. Georgia , 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). “[W]hether a defendant's right to a public trial has been violated is a question of law subject to de novo review.” State v. Williams , 328 S.W.3d 366, 369 (Mo.App.W.D.2010). Generally, “the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.” Waller v. Georgia , 467 U.S. 39, 49, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). “The denial of the right to a public trial is structural error that requires no showing of prejudice.” Crawford v. Minnesota , 498 F.3d 851, 854 (8th Cir.2007) (citing Waller , 467 U.S. at 49–50, 104 S.Ct. 2210 ). Further, the defendant has no duty to suggest alternatives to closure.

The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from [Supreme Court] precedents but also from the premise that ‘the process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice

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