Shaw v. State
| Decision Date | 30 November 2021 |
| Docket Number | WD83935 |
| Parties | TRAVONE SHAW, Appellant, v. STATE OF MISSOURI, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Joel P. Fahnestock, Judge
Before Cynthia L. Martin, Chief Judge, Presiding, Anthony Rex Gabbert, Judge and Thomas N. Chapman, Judge
Travone Shaw ("Shaw") appeals from the motion court's denial of his Rule 29.15[1]post-conviction motion. Shaw asserts that the motion court committed clear error because his trial counsel was ineffective for failing to request that the instruction for involuntary manslaughter be amended to include a "reasonable juvenile" standard for assessing whether Shaw could have foreseen that the victim would have been killed as a result of his conduct. Finding no error, we affirm.
Shaw was charged with murder in the second degree, robbery in the first degree, and two associated counts of armed criminal action. At trial, the evidence established that, on October 30, 2014, Shaw and Antonio Golston ("Golston") met Dionte Greene ("Greene") to buy marijuana. The three men first went to a gas station. Surveillance footage from the gas station showed that Greene was driving a gold sedan, and Shaw was sitting in the front passenger seat of the car. Shaw exited the car and entered the gas station where he unsuccessfully attempted to withdraw money from an ATM. Shaw returned to the vehicle, and Greene drove the car from the gas station to a known drug house. Police officers present in the neighborhood heard gunshots and then saw a gold sedan with its lights on and engine running parked in front of the known drug house. The officers surveilled the house and car for thirty minutes, then left the area after seeing no activity.
The police officers returned approximately three and a half hours later in response to a call concerning a suspicious vehicle. The officers found the same gold sedan with its engine still running and lights still illuminated. The officers approached the vehicle and saw Greene sitting in the driver's seat slumped over the center console, deceased. An autopsy revealed that the cause of Greene's death was a gunshot to the head. Stippling on Greene's skin indicated that the gun was approximately one to three feet away from his head at the time it was fired.
The jury found Shaw guilty of the lesser included offense of involuntary manslaughter, the lesser included offense of felony stealing, and the two associated counts of armed criminal action. Shaw appealed, and pursuant to State v Bazell, 497 S.W.3d 263 (Mo. banc 2016), and its progeny, we vacated the judgment insofar as it entered convictions and sentences for felony stealing and an associated count of armed criminal action. See State v. Shaw, 541 S.W.3d 681, 687 (Mo. App. W.D. 2017). We remanded with instructions to enter a judgment convicting Shaw of misdemeanor stealing and for resentencing. Id. In all other respects, we affirmed the judgment. Id. at 694. Shaw did not appeal the judgment entered on remand.
Pursuant to Rule 29.15, Shaw filed a timely pro se motion for post-conviction relief on May 16, 2018. On May 25, 2018, the motion court appointed counsel and afforded a thirty-day extension to file an amended motion. Appointed counsel timely filed an amended motion ("Amended Motion") on August 23, 2018. The Amended Motion argued that Shaw's trial counsel provided ineffective assistance of counsel in that she "fail[ed] to request a reasonable juvenile standard when instructing the jury on involuntary manslaughter, under accomplice liability theory." The Amended Motion asserted that, because Shaw was seventeen at the time he and Golston planned the robbery of Greene, Shaw's "neurological and psychological development . . . did not permit [Shaw] to deploy the same reasoning and rational reflection as an adult would," and that Shaw's ability "to reasonably foresee the homicide resulting from the planned theft . . . is the standard that should have been applied in this case." The Amended Motion further asserted that, had the jury been required to consider the limitations of a juvenile's brain development, it would not have found Shaw guilty of involuntary manslaughter under accomplice liability.
The trial court held an evidentiary hearing on January 31, 2020. The parties agreed at the hearing that Shaw was eighteen years old at the time the crimes were committed, not seventeen years old as alleged in the Amended Motion.
Dr. Marilyn Hutchinson ("Dr. Hutchinson"), a psychologist who completed a psychological evaluation of Shaw while the Amended Motion was pending, testified that while Shaw was eighteen and a half on October 30, 2014 (the day of his crimes), he was not emotionally eighteen years old and instead "was probably really [sixteen]." Dr. Hutchinson testified that, because Shaw had the brain of an adolescent, Shaw was much less likely to evaluate the situation and its implications before acting, much less likely to restrain his impulses and exercise self-control, and much less likely to consider other possible actions to take. According to Dr. Hutchinson, Shaw's immaturity made him more likely to agree to participate.
Shaw also presented testimony from his trial counsel at the evidentiary hearing. Shaw's trial counsel testified that she had never heard of using a reasonable juvenile standard in a verdict director.
The motion court issued its findings of fact, conclusions of law, and judgment ("Judgment") denying the Amended Motion on June 16, 2020. The Judgment rejected Shaw's theory that a reasonable juvenile standard should have been included in Instruction No. 26, which had been modeled after the Missouri Approved Instruction-Criminal ("MAI-CR") for involuntary manslaughter and modified pursuant to the MAI-CR for accomplice liability. Thus, the Judgment concluded that, even if trial counsel had requested a reasonable juvenile standard, she would have been requesting a modification to the verdict director that did not comply with the law, and that failing to request a verdict director that did not comply with the law did not render counsel's assistance deficient. The Judgment further concluded that, even if trial counsel's failure to request a modification to the MAI-CR constituted ineffective assistance of counsel, Shaw suffered no prejudice because it is unlikely that the trial court would have deviated from the required MAI-CR jury instructions.
Shaw appeals.
Our review of the motion court's denial of a Rule 29.15 post-conviction motion is "limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous." Rule 29.15(k). "A judgment is clearly erroneous when, in light of the entire record, [we are] left with the definite and firm impression that a mistake has been made." Webber v. State, 628 S.W.3d 766, 770 (Mo. App. W.D. 2021) (quoting Morrison v. State, 619 S.W.3d 605, 609 (Mo. App. W.D. 2021)).
Shaw's single point on appeal argues that the Judgment's denial of his Amended Motion was clearly erroneous because his trial counsel failed to act as a reasonably competent attorney when she did not request that the verdict director for involuntary manslaughter include a "reasonable juvenile" standard for assessing whether Shaw could have reasonably foreseen that Greene would be killed as a result of Shaw's criminal course of conduct. Shaw's point on appeal further asserts that a reasonable probability exists that, had trial counsel requested that the verdict director for involuntary manslaughter include a "reasonable juvenile" standard, the result of the trial would have been different.
The standard for evaluating claims of ineffective assistance of counsel was announced in Strickland v. Washington, 466 U.S. 668 (1984). Webber, 628 S.W.3d at 770. To successfully establish that he was deprived of his right to effective assistance of counsel, Shaw had the obligation to prove by a preponderance of the evidence both that: "(1) 'his . . . counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation'; and (2) 'he . . . was prejudiced by that failure.'" Id. (quoting Kelley v. State, 618 S.W.3d 722, 731 (Mo. App. W.D. 2021)). The first prong, referred to as the performance prong, "requires the movant to overcome the strong presumption that his trial counsel's actions were reasonable and effective." Id. The second prong, referred to as the prejudice prong, "requires the movant to establish that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Kelley, 618 S.W.3d at 732). If Shaw failed to prove either the performance prong or prejudice prong, then we need not address the other. Id.
It is the duty of the trial court to "instruct the jury in writing upon all questions of law arising in the case that are necessary for their information in giving the verdict." Rule 28.02(a). If there is an applicable verdict director found in the Missouri Approved Instructions-Criminal or its Notes on Use, the MAI-CR instruction must be given "to the exclusion of any other instruction." Rule 28.02(c). If an instruction found in the MAI-CR or its Notes on Use conflicts with the substantive law, however, it is not binding. State v. Celis-Garcia, 344 S.W.3d 150, 158 (Mo. banc 2011).
Shaw's claim of ineffective assistance of counsel is premised on his belief that Instruction No. 26, which was modeled after MAI-CR 3d 313.10, and modified by MAI-CR 3d 304.04 conflicted with decisions from the Supreme Court of the...
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