Tisius v. State

• Court: United States State Supreme Court of Missouri
• Citation: 183 S.W.3d 207
• Docket Number: No. SC 86534.,SC 86534.
• Parties: Michael TISIUS, Appellant, v. STATE of Missouri, Respondent.
• Decision Date: 10 January 2006

Page 207

183 S.W.3d 207

Michael TISIUS, Appellant, v. STATE of Missouri, Respondent.

No. SC 86534.

Supreme Court of Missouri, En Banc.

January 10, 2006.

Rehearing Denied February 28, 2006.

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Janet Thompson, J. Gregory Mermelstein, Office of Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Deborah Daniels, Asst. Atty. Gen., Nathan A. Arunski, Asst. Atty. Gen., Stephanie M. Morrell,

Asst. Atty. Gen., Jefferson City, for Respondent.

RICHARD B. TEITELMAN, Judge.

Michael Tisius was sentenced to death for the murders of two guards at the Randolph County jail. Tisius appeals a judgment overruling his Rule 29.15 motion for post-conviction relief. The judgment is affirmed.

FACTS

In June of 2000, Tisius was an inmate at the Randolph County Jail. Tisius' sentence was thirty days. Tisius' cellmate, Roy Vance, told Tisius that he was serving a fifty-year sentence. While incarcerated together, Tisius and Vance devised a plan in which Tisius would return to the jail and assist Vance with an escape plan.

After his release, Tisius contacted Vance's girlfriend, Tracie Bulington, who said that she wanted to carry out the escape plan. Bulington and Tisius visited the jail on several occasions. During some of these visits, Tisius carried a .22 caliber pistol that Bulington had taken from her parents' home. On June 21, 2000, Tisius and Bulington decided to break Vance out of jail. Tisius told Bulington "he was going to go in and start shooting" and that he would go "in with a blaze of glory." At 12:15 a.m. on June 22, Tisius and Bulington arrived at the jail.

Tisius and Bulington were admitted into the jail by officers Jason Acton and Leon Egley. Tisius had the pistol in his pants pocket. After making small talk for about ten minutes, Tisius drew the pistol from his pocket and, from a distance of two to four feet, shot Acton in the forehead. Officer Egley responded. Tisius shot him, Egley fell to the floor, and Tisius went to release Vance from his cell. Tisius could not open the cell and went to search for more keys. While Tisius was searching for keys, Egley, wounded and lying on the floor, grabbed Tisius' leg. Tisius killed Egley by shooting him several more times.

Tisius and Bulington fled in her automobile and were apprehended by police. Tisius waived his Miranda rights and offered oral and written confessions to the murders. At trial, Tisius admitted he shot the two officers, but argued that he did so without deliberation. The jury convicted Tisius of two counts of first degree murder, and he was sentenced to death. This Court affirmed the convictions and sentence on direct appeal. State v. Tisius, 92 S.W.3d 751 (Mo. banc 2002), cert. denied 539 U.S. 920, 123 S.Ct. 2287, 156 L.Ed.2d 140 (2003).

Tisius timely filed his pro se Rule 29.15 motion for post-conviction relief, alleging several instances of ineffective assistance of counsel. Appointed counsel filed an amended motion. The motion court held an evidentiary hearing on the amended motion and remanded the case for a new penalty phase, but denied relief on Tisius' guilt phase claims. Tisius appeals.

STANDARD OF REVIEW

Rule 29.15 sets forth the procedure for litigating claims of ineffective assistance of counsel where the defendant has been convicted of a felony. There are two components to a claim of ineffective assistance of counsel. First, a movant must show that counsel's performance "did not conform to the degree of skill, care, and diligence of a reasonably competent attorney." State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998)(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a presumption that counsel acted professionally and that any challenged action was part of counsel's sound trial strategy. Id. Second, if the movant establishes that counsel's performance was not reasonably competent, then the movant must demonstrate the he or she was prejudiced by counsel's performance. Id. To demonstrate prejudice, a movant must show that, but for counsel's poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different. Id.

"This Court will uphold the findings and conclusions of the motion court unless they are clearly erroneous." Rule 29.15(k). Findings and conclusions are clearly erroneous if, after reviewing the entire record, the appellate court has the definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000).

ANALYSIS

I. Prosecutorial Misconduct

Tisius contends that the prosecutor knowingly presented false and misleading evidence and argument suggesting that he, not Tracie Bulington, had stolen the gun from Bulington's mother's residence. Tisius also contends that trial counsel was ineffective for failing to object properly to this evidence and that appellate counsel was ineffective for failing to raise the issue on direct appeal.

Prior to trial, Tracie testified that she had taken the gun. She repeated this testimony during the penalty phase. During the guilt phase, Patsy Bulington testified that a few days prior to the murders, she left Tisius at her home alone while she ran an errand. Patsy then testified that on the morning of the murders, her husband called and asked her to look for the.22 caliber pistol they kept in their bedroom. Patsy discovered that the gun and a box of ammunition were missing. The prosecutor referenced Patsy's testimony during the guilt phase closing argument, arguing as follows: "Let's talk about deliberation. This weapon was taken by stealth. We know that because Patsy Bulington told us that." Tisius' counsel objected that the argument was a "misstatement of the evidence" as it implied that Tisius had stolen the gun. The objection was overruled.

The motion court found that the reference to the gun being taken by stealth was relevant to deliberation by Tisius, Bulington, and Vance in planning the escape. The court also found that Tisius' claim of ineffective assistance for failure to preserve this point was not cognizable and that there was no prejudice due to the strength of the guilt phase evidence.

A freestanding claim of prosecutorial misconduct is generally not cognizable in a Rule 29.15 proceeding. Rule 29.15 is not a substitute for direct appeal. State v. Carter, 955 S.W.2d 548, 555 (Mo. banc 1997). Claims of trial error will only be considered in a Rule 29.15 motion where fundamental fairness requires, and then, only in rare and exceptional circumstances. Schneider v. State, 787 S.W.2d 718, 721 (Mo. banc 1990). If the alleged misconduct was apparent at trial, then it is an issue for direct appeal, not a Rule 29.15 proceeding. Accordingly, this Court has reviewed claims of prosecutorial misconduct in a Rule 29.15 proceeding when the alleged misconduct was serious and would not be apparent during the trial. For instance, in Middleton v. State, the Court reviewed a Rule 29.15 claim alleging the state's failure to disclose a "deal" with a prosecution witness. 103 S.W.3d 726, 733 (Mo. banc 2003). Unlike a claim of withheld evidence, which would not be known to a movant during trial or direct appeal, a claim involving allegedly improper argument was apparent at trial and could have been raised on direct appeal. The motion court did not clearly err in concluding that Tisius' freestanding claims of prosecutorial misconduct are not cognizable, as such claims involve allegedly improper argument that would have been apparent at trial.

Counsel was not ineffective for failing to object to the allegedly improper argument. The prosecutor's evidence and argument was not false. The evidence and argument that the weapon was taken by stealth was, as the motion court found, relevant to the issue of deliberation as it indicated that taking the gun was part of the escape plan. Who actually took the gun is secondary. Moreover, there was substantial evidence of deliberation. The evidence showed that Tisius visited Vance at the jail on multiple occasions to plan the escape and test fired the gun prior to the escape attempt. Tisius carried on a conversation with one of the officers for several minutes before deciding to shoot officer Acton. He then shot officer Egley. When officer Egley, wounded and lying on the ground, grabbed Tisius' leg, Tisius shot him again. There was overwhelming evidence of deliberation¹ to support the jury's verdict. Even if counsel would have had a meritorious objection to the prosecutor's statement, the failure to make the objection was not prejudicial. The motion court did not clearly err in denying relief on Tisius' claims of prosecutorial misconduct and trial counsel's failure to object thereto.

Tisius' argument that appellate counsel was ineffective for failing to raise the issue on appeal is also without merit. No objection was made, so the issue was not preserved. Appellate counsel is not ineffective for failing to raise unpreserved allegations of error. Honeycutt v. State, 54 S.W.3d 633, 650 (Mo.App.2001). The motion court did not clearly err in denying relief on this claim.

II. Failure to Call a Handwriting Expert

At trial, counsel attempted to introduce a letter allegedly written by Vance, which provided details of the escape plan. The letter was addressed to "Karl" and was signed by "Roy." The letter stated that that there was no "button for help" at the jail and that "camera doesn't even record anything so they wouldn't even have a clue who did it." The letter further stated that "[t]here isn't any of them that work here with enough heart to play hero as long as it's done right." The letter contains no reference to any plan to use violence against the guards. The trial court ruled the letter inadmissible because there was no foundation that Vance actually wrote the letter.

Tisius argues...