Slater v. State

• Decision Date: 26 October 2004
• Docket Number: No. WD 63469.,WD 63469.
• Citation: 147 S.W.3d 97
• Parties: Antonio SLATER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

147 S.W.3d 97

Antonio SLATER, Appellant, v. STATE of Missouri, Respondent.

No. WD 63469.

Missouri Court of Appeals, Western District.

October 26, 2004.

Jeannie Willibey, Appellate Defender Office, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Karen Kramer, Attorney General Office, Jefferson City, for Respondent.

RONALD R. HOLLIGER, Presiding Judge.

Once again we are unfortunately presented with an issue regarding a criminal defendant's right to testify that can and should be avoided in every criminal case by a simple record that trial court and counsel should ensure be made. Antonio Slater contends that the trial court erred in denying his Rule 29.15 motion after an evidentiary hearing because his due process rights were violated because trial counsel in the underlying criminal case precluded him from testifying in his own defense. Absolutely no record was made at trial as to whether Slater would testify let alone a record that Slater understood that it was his decision to make and that he did or did not want to testify.

Facts

Antonio Slater was charged as a prior offender in the Circuit Court of Jackson County with one count of drug trafficking in the second degree. The case went to a jury trial on July 10, 2001, where Slater was found guilty of the lesser offense of possession of a controlled substance. Viewed in the light most favorable to the verdict, the evidence adduced at trial established the following:

Around June 21, 2000, the Kansas City Police Department performed a controlled drug buy at 1326 East 12th Street, Kansas City, Missouri, the residence of Antonio Slater's mother, Linda Slater, and James Harper. On June 28, 2000, a squad team of the Kansas City Police Street Narcotics Unit executed a search warrant on the 1326 East 12th Street residence. The officers gained entry through the living room and immediately encountered two people who were detained. The team moved next to the kitchen where they encountered Harper and Linda Slater. After detaining the individuals in the kitchen, the officers proceeded to secure the rest of the premises. In the hallway leading to the back bedrooms, the officers encountered Antonio Slater. The officers ordered Slater to move to the living room where he was detained.

After securing the premises, the police began to search. On the bed in the southeast bedroom, the officers found crack cocaine and three loaded handguns. On the floor next to the bed, the officers found additional loose crack cocaine. From the top of a dresser located approximately two feet from the bed, the police recovered individually packed rocks of crack cocaine. In the dresser drawer the officers found Antonio Slater's picture identification. The police recovered a total of 4.03 grams of crack cocaine from the southeast bedroom of the house.

Antonio Slater was arrested and advised of his Miranda rights. Slater agreed to talk to the police. He told the officers that he was living with his girlfriend but was occasionally staying at his mother's house. Slater said that on June 28, 2000, he arrived in the house intending to visit his mother shortly before the police executed the search warrant. Slater stated that before the police arrived, he had in his possession a bag of crack cocaine and the three handguns the police found in the bedroom. Appellant admitted possessing the weapons on other prior occasions, but denied ownership. Appellant also admitted that he knew that drugs were sold from the house, but denied that he was selling the drugs and declined to tell the police the identity of the seller.

Slater did not testify in his defense. After being found guilty by the jury of possession of a controlled substance, Slater was sentenced on October 4, 2001, as a prior drug offender to five years in prison. During the sentencing proceeding, Mr. Slater complained that he had wanted to testify on his own behalf but that his attorney would not call him to testify. Slater's defense counsel told the court that Slater made the decision not to testify after he advised him not to testify. The court found that there was "no probable cause to believe that counsel [was] ineffective."

The Western District affirmed Slater's conviction and sentence on direct appeal in an unreported opinion issued on February 19, 2003. (WD 60559).

Subsequently, Slater filed a pro se Rule 29.15 motion for post-conviction relief. Appointed counsel filed an amended motion alleging that trial counsel was ineffective for "failing to call Mr. Slater as a witness in his own defense, in violation of his fundamental constitutional right to testify on his own behalf." On August 19, 2003, the motion court held an evidentiary hearing, at which the court took judicial notice of the underlying criminal file and testimony was heard from both Slater and his defense counsel.

Slater testified that on a number of occasions, he and his defense attorney discussed whether or not Slater should testify at trial. Slater testified that he told his defense counsel that he wanted to testify but that counsel told him it was in his best interest not to testify because of Slater's previous felony convictions. Slater testified that he believed that he could not testify, because his defense counsel told him "he wasn't going to let him."

Slater's defense counsel testified in response that he has represented clients in approximately twenty jury trials and it is his standard practice to inform every client that it is the client's decision about whether to testify. Defense counsel testified that he advised Slater not to testify after several "long conversations" regarding the issue and that he believed that Slater knew full well that the decision to testify was Slater's.

On August 19, 2003, the motion court entered "Findings of Fact and Conclusions of Law" denying Slater's post-conviction relief motion. The motion court found that Slater understood that the decision to testify was his and that Slater "made the decision [not to testify] based upon counsel's advice."

Standard of Review

Appellate review of a motion court's denial of a Rule 29.15 motion for post-conviction relief is limited to a determination of whether the findings and conclusions of the court are clearly erroneous. Rule 29.15(k); Luster v. State, 10 S.W.3d 205, 209 (Mo.App. W.D.2000). Findings of fact and conclusions of law are clearly erroneous only if, after a review of the entire record, the appellate court is left with a definite and firm impression that a mistake has been made. Id. at 209-10.

To prevail on a claim of ineffective assistance of counsel, a movant must satisfy a two-prong test: (1) counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney; and (2) that the movant was thereby prejudiced. Bucklew v. State, 38 S.W.3d 395, 397 (Mo. banc 2001). There is no presumption of prejudice merely because counsel...