State v. Nickels
| Decision Date | 24 March 2020 |
| Docket Number | No. ED 107682,ED 107682 |
| Citation | 598 S.W.3d 626 |
| Parties | STATE of Missouri, Respondent, v. Walter NICKELS, Jr., Appellant. |
| Court | Missouri Court of Appeals |
For Appellant: Steven Kratky, 1010 Market St., Ste. 1100, St. Louis, MO 63101.
For Respondent: Nathan J. Aquino, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102.
Walter Nickels, Jr. ("Nickels") appeals from the trial court’s judgment following jury convictions for assault in the second degree, resisting arrest, and armed criminal action. Nickels raises four points on appeal. In Points One and Two, Nickels contends the trial court erred in denying his motion for new trial because the trial court had the authority to hear his ineffective-assistance-of-counsel claim under Rule 29.12(b)1 and should have granted his motion due to trial counsel’s failure to request misdemeanor assault as a lesser-included instruction for felony assault. In Point Three, Nickels maintains the trial court plainly erred in accepting inconsistent verdicts of not guilty of armed criminal action in connection with second-degree assault but guilty of second-degree assault. In Point Four, Nickels challenges the sufficiency of the evidence for his conviction on resisting arrest.
First considering the plain-error claim in Point Three, although the verdicts exhibit some logical inconsistency, the conviction for second-degree assault was not manifestly unjust because second-degree assault was not dependent on armed criminal action nor unsupported by substantial evidence. Next, by affirmatively admitting his guilt for resisting arrest at trial in opening and closing arguments, Nickels waived his sufficiency claim in Point Four. Regarding the ineffective-assistance claim in Points One and Two, because Nickels did not timely raise the claim before the trial court nor give the trial court the opportunity to consider its authority to hear the claim under Rule 29.12(b), we find no error in the trial court’s decision not to review the claim for plain error but instead enforce the mandatory time limitations of a motion for new trial. Accordingly, we affirm the judgment of the trial court.
On January 30, 2017, police officers observed Nickels driving erratically and began following him. Nickels parked alongside a street curb. The police officers approached Nickels, who appeared startled. Nickels revved the engine, and the police officers yelled at him to stop. One of the officers drew his gun when he observed Nickels holding a handgun. Nickels shifted in reverse and drove into the car behind him. Nickels then accelerated quickly and drove forward at one of the police officers. The officer opened fire on Nickels, who sped away at a high rate of speed. Police officers pursued Nickels, who was driving recklessly and over seventy miles per hour on residential streets and a highway. Police officers eventually located Nickels’s abandoned car, which was registered as a stolen vehicle. The State charged Nickels with first-degree assault, armed criminal action in connection with assault, unlawful possession of a firearm, resisting arrest, and armed criminal action in connection with resisting arrest.
The case proceed to trial on November 5, 2018. Nickels’s opening statement included the following:
(emphasis added).
At the close of evidence, the trial court instructed the jury on assault in the first and second degrees (Count I), armed criminal action in connection with assault (Count II), unlawful possession of a firearm (Count III), resisting arrest (Count IV), and armed criminal action in connection with resisting arrest (Count V). Concerning the assault charges in Count I, the trial court instructed the jury that it could find Nickels guilty of first-degree assault, guilty of the lesser-included offense of second-degree assault, or not guilty. The instruction for second-degree assault under Count I ("Instruction No. 6") required the jury to find that Nickels "attempted to cause physical injury to [the officer] by means of a dangerous instrument by driving a car toward him[.]" The instruction for armed criminal action in connection with second-degree assault under Count II ("Instruction No. 8") required the jury to find "[f]irst, that [the] defendant is guilty of the offense of assault in the second degree, as submitted in Instruction No. 6, and Second, that [the] defendant committed that offense with the knowing use of a dangerous instrument[.]"
In closing argument, Nickels stated:
You know, [Nickels] is not, like I said, necessarily totally without fault He resisted arrest after he pulled away from there, but look. He was shot at. He panicked. What’s he going to do, just sit there? There was one shot fired. Why would anybody have stayed there where there’s more shots fired? You know, he’s a sitting duck. He’s got to do something. He pulled away. He was scared and once he got away yes, the police came. He didn't cause any accidents. Didn't hit any cars right on the highway. Didn't cause any damage or anything like that but yes, so he resisted arrest. Find him guilty for arresting [sic] arrest. Find him not guilty of any other charges. He didn't have a gun. He didn't try to assault anybody. Actually went out of his way to avoid hitting any officer.
(emphasis added).
Initially, the jury returned two verdicts on Count I: guilty of second-degree assault on Count I but also not guilty on Count I. The trial court noted the inconsistency. On the remaining counts, the jury found Nickels not guilty of armed criminal action in connection with assault (Count II), not guilty of unlawful possession of a firearm (Count III), guilty of resisting arrest (Count IY), and guilty of armed criminal action in connection with resisting arrest (Count V). The trial court noted that the verdicts were inconsistent only as to Count I. Nickels did not disagree. The trial court proposed instructing the jury that only one verdict can be returned for each count and then sending the jury back to resolve the inconsistent verdict for Count I. Nickels agreed. The trial court then explained the inconsistency to the jury and that the jury should return only one verdict for each count. The trial court referred the jury to Instruction 13, which stated that the defendant is charged with a separate offense in each of the five counts and that each count must be considered separately with one verdict for each count. The trial court then sent the jury back to correct its verdict. Shortly thereafter, the jury returned with verdicts of guilty of second-degree assault (Count I), guilty of resisting arrest (Count IV), and guilty of armed criminal action in connection with resisting arrest (Count V). The jury acquitted Nickels of armed criminal action in connection with assault (Count II) and not guilty of unlawful possession of a firearm (Count III). The jury was polled and discharged. Trial counsel made no objections.
The trial court set sentencing for December 7, 2018, and granted ten additional days for Nickels to file a motion for new trial to be due on or before December 3, 2018. Nickels timely filed a motion for new trial alleging that the State did not meet its burden to prove every element of the convicted offenses and thus the trial court erred in denying his motions for acquittal; the State failed to prove that Nickels used a car to commit armed criminal action in connection with resisting arrest; and the trial court improperly admitted testimony from the police officer that the car Nickels was driving was stolen in a carjacking.
At the December 7 hearing, Nickels sought to orally supplement his written motion with regard to his second-degree assault conviction in Count I. Specifically, Nickels argued trial counsel was ineffective in failing to request an instruction for misdemeanor assault as a lesser-included offense of assault in the first or second degree. The trial court rejected Nickels’s new claim as untimely because Nickels sought to orally modify his motion for new trial only after the filing deadline had passed. Additionally, the trial court noted that claims for ineffective assistance are properly raised in a Rule 29.15 post-conviction motion and not in a motion for new trial. Nickels then proceeded to sentencing without objection, and was sentenced to concurrent terms of ten years for second-degree assault, seven years for resisting arrest, and five years for armed-criminal action. Nickels now appeals.
Nickels raises four points on appeal. Point One maintains the trial court erred in denying his motion for new trial by concluding as a matter of law that a claim for ineffective assistance of counsel cannot be considered in the context of a motion for new trial because Rule 29.12(b) allows such claims to be considered for plain error when raised prior to the entry of a judgment of conviction. Point Two posits ...
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