Tisius v. State

• Decision Date: 25 April 2017
• Docket Number: No. SC 95303,SC 95303
• Citation: Tisius v. State, 519 S.W.3d 413 (Mo. 2017)
• Parties: Michael TISIUS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

519 S.W.3d 413

Michael TISIUS, Appellant,

v.STATE of Missouri, Respondent.

No. SC 95303

Supreme Court of Missouri, en banc.

Opinion issued April 25, 2017

Rehearing Denied June 27, 2017

William J. Swift, public defender's office, Columbia, for Appellant.

Richard A. Starnes, attorney general's office, Jefferson City, for Respondent.

Patricia Breckenridge, chief justice

Michael Tisius appeals the judgment overruling his Rule 29.15 motion for post-conviction relief from his sentences of death for two counts of murder in the first degree. On appeal, Mr. Tisius asserts that the motion court clearly erred in overruling his claims that he received ineffective assistance of trial counsel during the retrial of his penalty phase and ineffective assistance of appellate counsel on direct appeal. This Court affirms the motion court's judgment.

Factual and Procedural Background

In 2000, Mr. Tisius was charged with two counts of murder in the first degree, section 565.020.¹ The charges arose after Mr. Tisius shot and killed two deputies, Leon Egley and Jason Acton, at the Randolph County jail. Mr. Tisius shot the deputies in an attempt to help his former cellmate, Roy Vance, escape from the jail. A jury convicted Mr. Tisius of both counts and sentenced him to death. His convictions were affirmed on direct appeal. State v. Tisius , 92 S.W.3d 751 (Mo. banc 2002).

The motion court subsequently granted Mr. Tisius post-conviction relief, and the case was remanded for a new penalty phase. Tisius v. State , 183 S.W.3d 207 (Mo. banc 2006). Prior to the new penalty phase, the public defender's office entered into an arrangement with attorneys Chris Slusher and Scott McBride to represent Mr. Tisius for a flat fee of $10,000 each.

In 2010, the retrial of Mr. Tisius' penalty phase began. The state introduced several pieces of aggravation evidence regarding Mr. Tisius' conduct while awaiting trial. This evidence included testimony from a Chariton County deputy that, on July 2, 2000, Mr. Tisius made hand gestures at her mimicking the shooting of a gun. The state also introduced testimony from a Boone County jail guard that, in April 2001, Mr. Tisius asked her if she knew who he was. When the jail guard stated she did not, Mr. Tisius stated he was the one who killed the two jail guards in Randolph County. The state further introduced evidence that, in 2006, a boot shank was found hidden in a radio in Mr. Tisius' cell. Mr. Tisius subsequently entered an Alford² plea to possession of a prohibited article in the department of corrections, section 217.360.1(4).

Following the state's evidence, several character witnesses testified on behalf of Mr. Tisius, including his mother, Patricia Lambert, and his brother, Joseph Mertens. Their testimony reflected that Mr. Tisius had little interaction with his father as a child. Ms. Lambert further testified that Mr. Tisius had attempted or threatened to attempt suicide several times and that she could not prevent Mr. Mertens from beating up Mr. Tisius on a regular basis. Mr. Mertens testified he would severely beat Mr. Tisius, who was smaller than him and would not fight back.

Psychologist Dr. Shirley Taylor also testified on Mr. Tisius' behalf. Dr. Taylor evaluated Mr. Tisius on two separate occasions and opined that he suffered from depression, anxiety, and post-traumatic stress disorder. She further testified that Mr. Tisius was neglected as a child and described Mr. Tisius' relationship with his father as one of sporadic involvement and broken promises. Dr. Taylor also opined that the shootings were contrary to Mr. Tisius' passive, non-aggressive nature and that Mr. Tisius was remorseful for his actions. On cross-examination, Dr. Taylor was asked about the incidents in the Boone and Chariton county jails. Dr. Taylor stated she was unaware of the incidents and could not comment about them without more context.

Trial counsel chose to present Dr. Taylor's live testimony at the retrial of the penalty phase over two psychiatrists, Dr. Stephen Peterson and Dr. A.E. Daniels, who had previously testified on Mr. Tisius' behalf. Instead, trial counsel entered into a stipulation with the state as to the portions of Dr. Peterson's and Dr. Daniel's prior testimony that could be read into evidence at the retrial.

At the close of evidence, the state submitted three statutory aggravating circumstances with respect to each murder count: (1) that the murder was committed while Mr. Tisius was engaged in the commission of another unlawful homicide; (2) that the murder involved depravity of the mind; and (3) that the murder was committed against a peace officer engaged in official duties. Trial counsel objected on double jeopardy grounds to the third aggravating circumstance being submitted with respect to the murder of Mr. Acton because the jury from the original penalty phase did not find that circumstance. Trial counsel's objection was overruled. The jury found all three aggravating circumstances with respect to the murder of Mr. Egley and only the first and the third aggravating circumstances with respect to the murder of Mr. Acton. The jury found no mitigating circumstances and recommended Mr. Tisius be sentenced to death on each count. The trial court sentenced Mr. Tisius in accordance with the jury's recommendation. Mr. Tisius' death sentences were affirmed on direct appeal. State v. Tisius , 362 S.W.3d 398 (Mo. banc 2012).

Mr. Tisius subsequently filed his Rule 29.15 motion for post-conviction relief. In his amended motion, Mr. Tisius alleged multiple claims of ineffective assistance of trial and appellate counsel. Following an evidentiary hearing, the motion court overruled Mr. Tisius' motion for post-conviction relief. Mr. Tisius appeals. Because this case involves the imposition of the death penalty, this Court has exclusive jurisdiction over the appeal. Mo. Const. art. V, sec. 3.

Standard of Review

This Court's review of the overruling of a motion for post-conviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). A motion court's findings and conclusions are clearly erroneous "if, after reviewing the entire record, this Court is left with the definite and firm impression that a mistake has been made." Barton v. State , 486 S.W.3d 332, 336 (Mo. banc 2016) (internal quotation omitted).

A movant is entitled to post-conviction relief for ineffective assistance of counsel upon establishing: (1) trial counsel "failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation, and (2) he or she was prejudiced by that failure." McIntosh v. State , 413 S.W.3d 320, 324 (Mo. banc 2013) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Both prongs of the Strickland test "must be shown by a preponderance of the evidence in order to prove ineffective assistance of counsel." Strong v. State , 263 S.W.3d 636, 642 (Mo. banc 2008).

To satisfy the Strickland performance prong, a movant "must overcome the strong presumption that counsel's conduct was reasonable and effective." Hoeber v. State , 488 S.W.3d 648, 655 (Mo. banc 2016) (internal quotation omitted). This presumption is overcome if the movant identifies "specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance."McIntosh , 413 S.W.3d at 324 (internal quotation omitted).

To establish Strickland prejudice, a movant must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (internal quotation omitted). "A reasonable probability exists when there is a probability sufficient to undermine confidence in the outcome." McLaughlin v. State , 378 S.W.3d 328, 337 (Mo. banc 2012) (internal quotation omitted). "Regarding a sentence to death, a defendant must show with reasonable probability that the jury, balancing all the circumstances, would not have awarded the death penalty." Strong , 263 S.W.3d at 642.

Failure to Rebut the Boot Shank Aggravation Evidence

In his first point, Mr. Tisius asserts the motion court erred in overruling his motion for post-conviction relief because trial counsel were ineffective for failing to rebut the state's aggravation evidence regarding his conviction for possessing a boot shank. In 2006, while awaiting the retrial of his penalty phase, a boot shank was found hidden in a radio in Mr. Tisius' cell. Mr. Tisius subsequently entered an Alford plea to one count of possession of a prohibited article in the department of corrections. At the plea hearing, Mr. Tisius acknowledged he knew the boot shank was in his cell but claimed another inmate had put it in the radio and threatened Mr. Tisius that he better leave it there. The trial court accepted Mr. Tisius' Alford plea and sentenced him to a concurrent five-year term of imprisonment.

During the retrial of Mr. Tisius' penalty phase, the state referenced his Alford plea to possession of the boot shank in opening and closing argument. The state also read into evidence the docket entry regarding Mr. Tisius' Alford plea and a portion of the complaint charging Mr. Tisius with possession of the boot shank. The state did not read the portion of the complaint stating the boot shank was an instrument that may be used in such manner as to endanger the safety or security of the correctional center.

In his motion for post-conviction relief, Mr. Tisius alleged trial counsel were ineffective for failing to further investigate and rebut the aggravation evidence. Mr. Tisius alleged that further investigation would have led to the discovery that the boot shank was not sharpened and that he possessed the boot shank because another inmate put it in his cell. Mr. Tisius also alleged reasonable trial counsel would have explained to the jury what an Alford plea is and...