Trotter v. State, WD 76472.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: JAMES EDWARD WELSH
• Citation: 443 S.W.3d 621
• Parties: Deshay TROTTER, Appellant, v. STATE of Missouri, Respondent.
• Docket Number: No. WD 76472.,WD 76472.
• Decision Date: 28 October 2014

443 S.W.3d 621

Deshay TROTTER, Appellant,
v.
STATE of Missouri, Respondent.

No. WD 76472.

Missouri Court of Appeals, Western District.

June 10, 2014
Application for Transfer to Supreme Court Denied July 23, 2014
Application for Transfer Denied Oct. 28, 2014

Affirmed.

Mark Grothoff, Columbia, MO, for Appellant.

Evan Buchheim, Jefferson City, MO, for Respondent.

Before Division Four: JAMES EDWARD WELSH, C.J., LISA WHITE HARDWICK, J., and KEVIN HARRELL, SP. J.

[443 S.W.3d 622]

JAMES EDWARD WELSH, Chief Judge.

Deshay Trotter appeals the circuit court's judgment denying his Rule 29.15 motion for post-conviction relief in which he sought to set aside one of his convictions for armed criminal action on the basis of ineffective assistance of trial and appellate counsel. We affirm.

The evidence presented at trial established that in November 2007, Trotter and codefendants Stephan Sawyer, Dion Young, and DeAngelo Blair traveled in Sawyer's vehicle to Lawrence, Kansas. They were armed with a .45 caliber handgun and a rifle. While in Lawrence, Trotter's group became involved in an altercation with another group of individuals at a nightclub. Police arrived, and Young was handcuffed and detained. Meanwhile, Trotter, Blair, and Sawyer returned to Sawyer's car, where they retrieved the two weapons. When released, Young joined the others in Sawyer's vehicle, and they set out to pursue the rival group who had left in two separate vehicles. Trotter's party was accompanied in the pursuit by a second group of individuals in a black SUV. Unable to find the rival group in Lawrence, they headed toward Kansas City. Trotter's group caught up to their victims shortly after crossing back into Missouri and began firing into the rear of the victims' vehicles. Additional shots were fired at the victims' vehicles from the black SUV.

A police officer witnessed the shooting and testified that gunfire came from the rear passenger-side seat, where Trotter was sitting. The officer stopped to attend to the victims, whose vehicles had collided and come to a stop. He discovered that one of the victims, Dominic Bradley, had no pulse. Bradley was shot in the back, and the bullet had caused massive internal bleeding. Three other victims suffered non-fatal gunshot wounds. The officer found no guns in the victims' cars or on the ground beside them. A few minutes after receiving a dispatch about the shooting, another officer spotted Sawyer's car. Following a chase, officers apprehended all four men and recovered the two weapons they had discarded during the police pursuit. Firearms evidence taken from the crime scene showed that both had been fired at the victims' vehicles. As a result of the shots fired by Trotter's group, Bradley died.

The second-degree murder charge in Count 1 was submitted as a felony murder, with the underlying felony being the unlawful use of a weapon (charged in Count 3). (Both counts had a separate count of ACA associated to it.) The jury found Trotter guilty of second-degree murder, two counts of unlawful use of a weapon, three counts of first-degree assault, and six associated counts of ACA. The jury acquitted him of first-degree assault and ACA as to one occupant in the victims' vehicles who did not suffer a gunshot wound. The court sentenced Trotter to ten years for second-degree murder, fifteen

[443 S.W.3d 623]

years on each unlawful use of a weapon count, five years on each first-degree assault count, and three years on each ACA conviction. The consecutive and concurrent nature of the sentences resulted in a total of eighteen years.²

Trotter's appellate counsel raised two issues on appeal, neither of which involved a double jeopardy violation. This court rejected both claims and affirmed Trotter's convictions and sentences in a per curiam order, State v. Trotter, 305 S.W.3d 506 (Mo.App.2010).

Trotter filed a timely pro se Rule 29.15 motion for post-conviction relief, and appointed counsel filed an amended motion. The amended motion alleged that both trial and appellate counsel were ineffective in failing to challenge his ACA conviction either as to Count 2 or Count 4 on the basis of double jeopardy because both were associated with commission of the unlawful use of a weapon offense in Count 3. Following an evidentiary hearing, the circuit court denied Trotter's claims for relief.

Discussion

In his sole point on appeal, Trotter argues that the circuit court clearly erred in denying his claims that (1) trial counsel was ineffective in failing to object to or move to dismiss his convictions and sentences for ACA in Counts 2 and 4 on the basis that they violated double jeopardy, and (2) appellate counsel was ineffective in failing to challenge the convictions and sentences on the same basis on appeal. Trotter argues that, absent the incompetence of trial and appellate counsel in this regard, a reasonable probability exists that the outcome of his trial or appellate proceedings would have been different.

It is the movant's burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Rule 29.15(i). To prevail on such a claim, the movant must establish both (1) that his attorney's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney, and (2) that his attorney's failures prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy Strickland's performance prong, a movant must overcome the strong presumption that counsel's actions were reasonable and effective and that any challenged action was based on sound trial strategy. Tisius v. State, 183 S.W.3d 207, 211 (Mo. banc 2006). To prove prejudice, the 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. at 212. A claim of ineffective assistance of appellate counsel is reviewed under essentially the same standard. Storey v. State, 175 S.W.3d 116, 148 (Mo. banc 2005). The “movant is expected to show both a breach of duty and resulting prejudice.” Id. The alleged error “must have been sufficiently serious to create a reasonable probability that, if it was raised, the outcome of the appeal would have been different.” Tisius, 183 S.W.3d at 215.

At the hearing on Trotter's...