Seals v. State

• Decision Date: 29 June 2018
• Docket Number: No. SD 35080,SD 35080
• Citation: 551 S.W.3d 653
• Parties: Felix McGrundy SEALS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

551 S.W.3d 653

Felix McGrundy SEALS, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 35080

Missouri Court of Appeals, Southern District, Division One.

Filed: June 29, 2018

ATTORNEY FOR APPELLANT—KRISTINA S. OLSON, St. Louis, MO.

ATTORNEY FOR RESPONDENT—DANIEL N. MCPHERSON, Jefferson City, MO.

MARY W. SHEFFIELD, P.J.

Felix McGrundy Seals ("Movant") raises three points on appeal in which he charges clear error in the motion court's denial, after an evidentiary hearing, of two claims for ineffective assistance of trial counsel (Points 1 and 2) and one claim for ineffective assistance of appellate counsel (Point 3). Finding merit in Movant's third point, we reverse the motion court's denial of Movant's claim for ineffective assistance of appellate counsel, but affirm the order denying relief in all other respects.

Standard of Review and General Principles of Law

This Court reviews the motion court's findings and conclusions only for clear error. Rule 29.15(k).¹ We will find clear error only where a review of the entire record leaves a definite and firm impression that a mistake has been made. Hardy v. State , 387 S.W.3d 394, 399 (Mo. App. S.D. 2012).

"To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test in order to prove his or her claims." Johnson v. State , 406 S.W.3d 892, 898 (Mo. banc 2013) (citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "Under Strickland , a movant must demonstrate that: (1) his or her counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation, and (2) he or she was prejudiced by that failure." Id. at 898-99.

"The standard of review for a claim of ineffective assistance of appellate counsel is essentially the same as that employed with trial counsel[.]" Helmig v. State , 42 S.W.3d 658, 682 (Mo. App. E.D. 2001). Specifically, "[t]o prevail on a claim of ineffective assistance of appellate counsel, [Movant] must show that his appellate counsel failed to raise a claim of error that a competent and effective lawyer would have recognized and asserted." Anderson v. State , 196 S.W.3d 28, 36 (Mo. banc 2006). Movant "must also have shown that the claimed error [was] sufficiently serious to create a reasonable probability that, if it was raised, the outcome of the appeal would have been different." Id. (internal quotation marks omitted). Appellate counsel is not, however, required to raise every possible claim raised in the motion for new trial and has no duty to present non-frivolous issues where appellate counsel makes a strategic decision to winnow out some arguments in favor of others.

Tisius v. State , 519 S.W.3d 413, 431-32 (Mo. banc 2017). There is a presumption that appellate counsel's conduct fell within the wide range of reasonable professional assistance, and a movant must overcome that presumption by showing that appellate counsel's failure to raise an issue on appeal "was not a reasonable legal strategy." Tate v. State , 461 S.W.3d 15, 22 (Mo. App. E.D. 2015).

Background

Movant was convicted, following a jury trial, of second-degree domestic assault ("Count 1"), third-degree domestic assault ("Count 2"), and attempted victim tampering ("Count 3"). See §§ 565.073, 565.074, 575.270.² On direct appeal, one of Movant's two points alleged that Count 1 should be reversed and remanded for a new trial because the trial court plainly erred by failing to instruct the jury as to self-defense on that count. This Court agreed, reversed and remanded for a new trial as to Count 1 only, and affirmed the judgment in all other respects. State v. Seals , 487 S.W.3d 18, 20 (Mo. App. S.D. 2016). Thereafter, Movant filed a pro se motion alleging ineffective assistance of counsel pursuant to Rule 29.15. Appointed motion counsel then filed an amended motion, which the motion court denied in its entirety.³ Additional background will be discussed below as necessary under each of the three points of error. We take Movant's points out of order for ease of analysis.

Point 1—Informing the Jury Panel during Voir Dire that Movant had Prior Domestic Violence Convictions

Movant's first point argues "[t]he motion court clearly erred in denying ... [Movant's] Rule 29.15 post-conviction motion claim that trial counsel were ineffective for informing the venire panel during voir dire that [Movant] had prior domestic assault convictions[.]" Movant claims he demonstrated that counsels' voir dire on the topic of his prior convictions was not supported by any reasonable trial strategy, and there is a reasonable probability that but for counsels' ineffective assistance, Movant would have been acquitted on all counts.

During voir dire, trial counsel Callie Moench ("Moench") conducted voir dire for the defense. She talked to the venire panel about Movant's right to choose whether to testify, and said that Movant had not yet decided what he would do.

Moench later asked the following question of the panel:

If knowing that [Movant] has two misdemeanor convictions for domestic assault, as well as one prior felony conviction for domestic assault, does knowing that make you—and nothing else—make you think he's more likely to be guilty right now?

I see one hand.

Any other hands?

So I'll rephrase that to be a little more clear.

Does knowing that [Movant] has past domestic assault convictions make anyone think he's more likely—as it stands right now, not knowing any other evidence, it's more likely that he's guilty of these charges?

Okay. I see a whole lot of hands.

The prosecutor then objected that the question did not call for a response that would disqualify any jurors, because the jury could, technically, hold Movant's prior convictions against him "in terms of his credibility."

After extensive discussions with the court about whether the question as worded was designed to identify strikes for cause, Moench was permitted to rephrase the question as follows:

Okay. We had kind of an abrupt break, and I'm going to go back to the topic we were talking about. So we were talking about [Movant's] past domestic assault convictions.

At the end of the trial, the Judge is going to instruct you that you have to consider all the evidence presented.

Knowing that [Movant] has past domestic assault convictions, is that going to prevent anyone from being able to consider all the evidence before coming to a decision? Are you going to be able to consider everything, not just his past convictions, before you come to a decision about his guilt?

I see some heads nodding.

Would anybody not be able to consider all the evidence?

Juror No. 38? And, ma'am, I think we've spoken about this a bit. If you have something else you'd like to say, that's fine.^[4]

[JUROR NO. 38]: No.

MS. MOENCH: Okay. Thank you. Anyone else; did I miss anyone? Anybody that would not be able to consider all the evidence?

The record does not reflect any responses to the last question set forth above, and Moench moved on to another line of questioning.

Co-counsel Stephanie Bullard ("Bullard") announced at the close of the State's case that Movant had chosen not to testify. Movant affirmed that decision under questioning by the court. After the court asked whether he understood that his attorneys could only offer advice and that the final decision on whether or not to testify was his to make, Movant had an off-the-record discussion with counsel. He did not testify.

Movant's amended motion alleged that Bullard and Moench were ineffective for informing the jury panel during voir dire that Movant had two prior misdemeanor convictions for domestic assault and a prior felony conviction for domestic assault.

Bullard and Moench both testified at the evidentiary hearing on the amended motion. Bullard testified that she had conversations with Movant prior to trial about whether he would testify at trial; that she did not know at the time voir dire was conducted whether or not Movant would testify; that Movant did not decide if he would testify until seconds before he announced that decision in open court; and, even during questioning from the trial court, Movant vacillated in his decision.

Bullard stated that if Movant had decided to testify, his prior convictions "definitely would have come in[.]" When asked if it was part of the trial strategy to voir dire for that possibility because they did not know if Movant would testify at that point, Bullard answered that she could not "recall specifically." However, she added that for jury trials, that strategy was certainly something she and co-counsel discussed. She recalled from past trials that if she knew the defendant was going to testify, she would broach the topic of past convictions during voir dire. She concluded that asking about prior convictions during voir dire "would have been something I would have done." Moench testified that she had performed the voir dire for the defense in consultation with Bullard.

The motion court found:

At the time of voir dire Movant's counsel was unsure whether he would testify or not. During the evidentiary hearing Ms. Bullard stated that given [sic] Movant repeatedly changed his mind on whether he would testify. Because the jury would hear Movant's convictions if he testified, Ms. Bullard believed they should be addressed on voir dire. Trial counsel exercised reasonable trial strategy.

Referencing prior convictions during voir dire for the purpose of inoculating the jury to a defendant's criminal past or removing for cause members of the venire panel who indicate that they would hold those prior convictions against him at trial have long been accepted as reasonable trial strategy. See, e.g. , Williams v. State , 524 S.W.3d 553, 561, 563 (Mo. App. W.D. 2017) (collecting cases to support that proposition). Movant did not decide whether he would testify until pressed by the Court...