Stiers v. State

• Decision Date: 19 June 2007
• Docket Number: No. WD 65559.,WD 65559.
• Citation: 229 S.W.3d 257
• Parties: Robert STIERS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

229 S.W.3d 257

Robert STIERS, Appellant, v. STATE of Missouri, Respondent.

No. WD 65559.

Missouri Court of Appeals, Western District.

June 19, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 31, 2007.

Craig A. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, for Respondent.

Before VICTOR C. HOWARD, Presiding Judge, JOSEPH M. ELLIS, Judge and LISA WHITE HARDWICK, Judge.

JOSEPH M. ELLIS, Judge.

Robert Stiers ("Appellant") appeals from the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. In relevant part, Appellant alleged that trial counsel was ineffective for failing to request a jury instruction on defense of person or defense of property and failing to request an instruction on the lesser-included offense of false imprisonment. For the following reasons, we reverse the decision of the motion court.

On June 11, 2000, Kimberly Shaon sought treatment in the emergency room of a hospital in Hermann, Missouri, for bruising around both eyes, bruising and swelling of the chin, swelling of the forehead, swelling and bruising on the left side of her head, a tender neck, and an abrasion between her breasts. Shaon told Dr. Mike Mahoney that she had been beaten by her boyfriend, who was waiting for her in the parking lot. Dr. Mahoney contacted the sheriff's department and relayed Shaon's allegations to Deputy Shannon Jefferies.

Deputy Jefferies spoke with Shaon, who told him that Appellant had beaten her over finances, their recent breakup, and Appellant's pending prison commitment. Shaon told Deputy Jefferies that Appellant had started yelling at her when she arrived at his home the previous evening, that he had started hitting her on the head, and that he had threatened to kill her. She also told the deputy that Appellant had tried to choke her with an extension cord and that he later had used the extension cord to tie her hands behind her back. After a deputy arrived at the hospital, Dr. Mahoney went with him to the parking lot and informed Appellant that Shaon would not be going home with him.

On June 12, 2000, Shaon went to the Callaway County Sheriff's Department and asked to speak to someone. Shaon was interviewed by Sergeant Bob Smith, and she told him that she had gone to Appellant's house and had entered when nobody came to the door. She told Sgt. Smith that Appellant soon came out of the bedroom and began yelling at her about money that she owed him. Shaon then described how Appellant had beaten her, choked her, and tied her up, and claimed that he twice forcibly sodomized her. After her interview with Sgt. Smith, Shaon was taken to Callaway Community Hospital where she was examined and samples were taken using a sexual assault kit. Testing on those samples was inconclusive.

Sgt. Smith subsequently obtained an arrest warrant for Appellant and a warrant to search Appellant's house. Appellant was eventually charged by information with two counts of forcible sodomy, two counts of armed criminal action, and one count of felonious restraint.

Appellant testified on his own behalf at trial. Appellant stated that he was awakened in the middle of the night by a loud noise upstairs. He claimed that when he went upstairs, he saw Shaon at the kitchen table going through his wallet and a briefcase, wherein he kept his important documents and checkbooks. Appellant said he saw her place something in her pocket. Appellant testified that Shaon had stolen things from him in the past and pawned them. Appellant asserted that when he asked Shaon what she was doing there, Shaon gave no response, and when he asked her what she had placed in her pocket, she denied placing anything in her pocket. Appellant said that when Shaon refused to empty her pockets, he tried to reach into them, and she slapped him. Appellant claimed he then slapped Shaon back, and they began to push and shove each other.

According to Appellant, Shaon picked up a knife off the kitchen table and told him to let her go. Appellant said he told Shaon that he would not let her leave until she emptied her pockets. Appellant claimed that when he tried to disarm her, Shaon kicked him in the groin. He said they then "went at it" and that he repeatedly struck Shaon and attempted to disarm her for about five or six minutes. Appellant stated that eventually he knocked Shaon into a ladder and she fell to the ground. He said he pinned her down and disarmed her. Appellant testified that he kicked the knife under the kitchen counter. Appellant stated that Shaon tried to kick him in the groin as he was trying to get off of her, so he decided to hold her down for a while longer. He stated that they then had a five-minute conversation with him holding her down. He said that he then helped her up, they sat down on the couch, and they continued to talk for about thirty to forty minutes. Appellant said that he then went to sleep on the couch while Shaon slept in the bed. Appellant denied ever tying Shaon up with an extension cord or ever trying to strangle her. Appellant stated that he hit Shaon with his hands and fist but that he did not threaten her with the knife or any other weapon.

Shaon's testimony contrasted greatly with that of Appellant. She testified that she went to the Appellant's house after receiving a phone call from him. She stated that she saw a butcher knife, a hammer, and an extension cord on the kitchen table. Shaon said she asked him what the knife was for and that he stated, "It's for you, bitch." Shaon testified that Appellant then slapped her and that they began to fight. She said that she ran around the house trying to escape until a ladder fell on top of her. Shaon stated that Appellant pushed the ladder down on her and told her that he was going to kill her. Shaon said that, while he held her down, Appellant was holding the butcher knife in one hand and hitting her in the face with the other. She also claimed that at one point he tried unsuccessfully to wrap an extension cord around her throat. Shaon testified that Appellant then choked her with both hands. She stated that she continued to struggle for a while but eventually gave up. Shaon said that Appellant then tied her hands behind her back, hit her, kicked her, and threatened to kill her. She claimed that Appellant sodomized her twice that evening. Shaon testified that he had her lay back down on the ground and that he would walk by and kick her and spit on her. She further said that he held the knife to her chest and cut her at one point.

Following trial, the jury returned verdicts acquitting Appellant on the two counts of forcible sodomy and two counts of armed criminal action, but it found Appellant guilty of one count of felonious restraint. The trial court subsequently sentenced Appellant to a term of seven years in the Missouri Department of Corrections. Appellant's conviction was affirmed by this Court on direct appeal. State v. Stiers, 119 S.W.3d 139 (Mo.App. W.D.2003).

Appellant subsequently filed a timely pro se motion for post-conviction relief under Rule 29.15. An amended motion was later filed by appointed counsel. In relevant part, Appellant's post-conviction motion alleged that trial counsel was ineffective for failing to request a jury instruction on defense of person or defense of property and for failing to request an instruction on the lesser-included offense of false imprisonment. Following an evidentiary hearing, the motion court denied Appellant's motion. Appellant brings three points on appeal from that decision.

Our review of the motion court's denial of a Rule 29.15 motion is limited to determining whether the findings and conclusion of the motion court are clearly erroneous. Rule 29.15(k). "Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made." Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000).

Appellant contends on appeal that the trial court erred in finding that he received effective assistance of counsel for three different reasons. "To prevail on an ineffective assistance of counsel claim, [Appellant] must show that (1) trial counsel's performance was deficient in that he failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and (2) the deficient performance prejudiced [Appellant]." State v. Rich, 950 S.W.2d 337, 339 (Mo.App. W.D.1997) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). "We presume counsel to be competent, requiring proof to the contrary by a preponderance of the evidence." State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996). As to prejudice, a claimant must demonstrate prejudice by showing that "there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Slater v. State, 147 S.W.3d 97, 100 (Mo. App. W.D.2004). Appellant must establish both the performance and prejudice prongs of this test in order to prevail on a claim of ineffective assistance, and if he fails to satisfy either prong, we need not consider the other. State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997).

Appellant's first two points assert that trial counsel was ineffective for failing to submit instructions on defense of self and defense of property to the jury. Testifying at the motion hearing, Appellant's counsel stated that he had not submitted either instruction because he did not believe they were applicable because the State's evidence indicated that Appellant had restrained Shaon for several hours. The motion court found counsel's testimony credible, specifically finding that "[t]rial counsel did not think the self-defense instruction [was] warranted in Mr. Stiers' case,...