Stevenson v. State
Decision Date | 29 March 2022 |
Docket Number | ED 109610 |
Citation | 645 S.W.3d 589 |
Parties | Darwin D. STEVENSON, Movant/Appellant, v. STATE of Missouri, Respondent. |
Court | Missouri Court of Appeals |
Jonathan N. Bruntrager, 225 S. Meramec, Suite 1200, Clayton, MO 63105, For Movant/Appellant.
Garrick F. D. Aplin, P.O. Box 899, Jefferson City, MO 65102, For Respondent.
Darwin D. Stevenson (Movant) appeals from the Findings of Fact, Conclusions of Law and Order (Judgment) denying his amended Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We affirm.
The facts of the underlying case arose from an incident that occurred on December 18, 2016, at the St. Louis City Justice Center (the Justice Center). At the time, Movant and another inmate, Victim, quarreled in the prison common room over a request to supervising Corrections Officer Aaron Perkins (Officer Perkins) to change the television channel.
After the confrontation, Victim returned to his cell. Movant followed Victim, entered Victim's cell, and threatened Victim with physical and sexual violence. Movant and another inmate (Bell) then began repeatedly hitting Victim, who fought back and called for help. Another inmate (C.S.) arrived and attempted to verbally intervene. Victim managed to leave his cell, but Movant and Bell pursued Victim onto the catwalk and punched Victim again, knocking him unconscious. During the struggle, in which Movant and Bell were acting together, Bell also hit C.S. Victim sustained a concussion, broken jaw, and back pain. The Justice Center's surveillance video captured the events in the common room and on the catwalk outside Victim's cell.
On March 14, 2017, Movant was charged by indictment with two counts of assault and one count of attempted sodomy. On March 23, 2017, the State disclosed to Movant all discovery materials—including the Justice Center surveillance video, witness disclosures, and a written statement obtained from Officer Perkins.
On January 8, 2018, trial counsel requested a continuance of the trial date to allow additional time to conduct discovery and to prepare for trial. The court denied the request for continuance and the case was set for trial on January 16, 2018. Trial counsel met with Movant twice before trial. Movant moved for a change of judge, which was granted. Movant then renewed his motion for a continuance before the trial court on the day of trial. The trial court denied the motion.1
At trial, the State called Victim and the responding police officer to testify about the incident. Movant testified in his own defense that Victim was the initial aggressor and that the surveillance video was incomplete because earlier footage would have shown that Victim began the fight by overturning a chair and threatening Movant. Following the trial, the jury found Movant guilty of first-degree and third-degree assault, but acquitted Movant of attempted sodomy.
Movant was sentenced as a persistent offender to a total of fifteen years’ imprisonment. Movant's convictions were affirmed on direct appeal in State v. Stevenson, 573 S.W.3d 761 (Mo. App. E.D. 2019). Subsequently, Movant timely filed a pro se motion for post-conviction relief pursuant to Rule 29.15. Following the appointment of post-conviction counsel, an Amended Motion was timely filed in which Movant alleged, inter alia , that: 1) "Trial counsel was ineffective for failing to either compel the production of the CO Perkin[ ]s[’s] statement, or depose CO Perkins...."; 2) "Trial counsel was ineffective for failing to subpoena the entirety of the surveillance video...."; 3) "Trial counsel was ineffective for ... failing to properly investigate[ ] [and] failing to conduct depositions."; and 4) "Trial counsel was ineffective for failing to seek a case load hearing under RSMo. 600.063 simultaneously with attempt to continue the matter." The motion court denied Movant's motion for post-conviction relief without an evidentiary hearing finding, inter alia , that Movant "failed to allege grounds that would entitle him to relief if true and which are not refuted by the record." This appeal follows.2
Appellate review of the motion court's ruling is limited to determining whether the motion court's findings and conclusions are clearly erroneous, and a "movant is entitled to an evidentiary hearing only if: (1) [the movant] pleaded facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of resulted in prejudice to the movant." Rule 29.15(k); Booker v. State, 552 S.W.3d 522, 526 (Mo. banc 2018). To successfully state a claim for ineffective assistance of counsel, the movant must allege facts "demonstrating: (1) that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney, and (2) that counsel's deficient performance actually prejudiced the movant." Id. at 531.
In determining whether a movant has met his or her burden to show ineffective assistance of counsel, courts must indulge a strong presumption "that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (internal quotation omitted). And whether counsel's performance conformed to the degree of skill, care, and diligence of a reasonably competent attorney is an "inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind." Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed. 2d 624 (2011). "Because the inquiry is an objective inquiry into the reasonableness of counsel's performance, an evidentiary hearing will not always be necessary to adjudicate claims of ineffective assistance of counsel." McLemore v. State, 635 S.W.3d 554, 559-60 (Mo. banc 2021).
In Point I, Movant argues the motion court clearly erred in denying, without an evidentiary hearing, his Rule 29.15 claim that trial counsel was ineffective for failing to obtain Officer Perkins's prior statement or to depose him. We disagree.
In order to succeed on a claim of ineffective assistance of counsel for failure to investigate, a movant must: "(i) specifically describe the information his attorney failed to discover, (ii) establish that a reasonable investigation by trial counsel would have resulted in the discovery of such information, and (iii) prove that the information would have aided or improved his position at trial." Gurley v. State, 431 S.W.3d 511, 514 (Mo. App. E.D. 2014), quoting Cornelious v. State, 351 S.W.3d 36, 46 (Mo. App. W.D. 2011). Moreover, the decision of whether to interview or depose a witness is generally a matter of trial strategy and "[t]raditionally, the manner in which trial strategy is implemented does not provide an adequate basis for an ineffective assistance of counsel claim." Fynn v. State, 763 S.W.2d 210-211 (Mo. App. E.D. 1988).
In his amended Motion, Movant alleged the State committed a Brady 3 violation by failing to disclose Officer Perkins's statement and trial counsel was ineffective for failing to either compel the production of Officer Perkins's statement or to depose or call him to testify at trial. Movant alleged the State's withholding of Officer Perkins's Garrity 4 statement and his removal from the endorsed witness list strongly implied his testimony did not support the State's theory that Movant planned the attack and acted in concert with others.
In denying Movant's claim, the motion court found that "[Movant] has not stated specifically how the defense was prejudiced or what he believes the statements would show." The motion court further found that "[g]iven the facts and testimony in this case as relates to Officer Perkins, that he did not stop the assault and was told ... that he ... did not see or hear anything, it is unclear how any statement by Perkins would have provided a viable defense...." The motion court's findings and conclusions are not clearly erroneous and are supported by the record.
Here, the record shows that on March 14, 2017, the State filed an indictment against Movant endorsing Officer Perkins, among others, as potential witnesses. On March 23, 2017, the State filed a letter itemizing the discovery it was providing to the defense, which included a "Written Statement – A. Perkins (1 page)," "Justice Center Staff Work Rules," and a "Letter Concerning Garrity Statements." On May 2, 2017, the State filed a supplemental list of witnesses withdrawing its endorsement of Officer Perkins.
On January 16, 2018, during a pretrial hearing on trial counsel's motion for continuance, trial counsel noted that Officer Perkins "was a guard in jail who was essentially supervising the cell blocks." Trial counsel argued the State had not made available to the defense "some [ Garrity ] statements that ... [Officer Perkins] made to his employer" and, therefore, trial counsel was deprived of "the opportunity to litigate that issue." In response, the prosecutor admitted Officer Perkins was originally endorsed but subsequently unendorsed because "as a requirement of working [at the Justice Center], [employees] are forced to give statements to their employer, statements which cannot be used against them in court." The prosecutor further explained the State was "under no obligation whatsoever to turn this over since he is not a witness for [the State]" and "[he] merely did the courtesy to [trial counsel] and his predecessor to letting [sic] them know that such a statement existed."
At trial, the State relied upon statements allegedly made by Movant to Officer Perkins before the attack to argue that Movant was planning an attack on Victim, was acting in concert with...
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