Whitt v. State
| Decision Date | 01 November 2022 |
| Docket Number | ED 110320 |
| Citation | 655 S.W.3d 202 |
| Parties | Reno WHITT Jr., Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Gwenda R. Robinson, 1010 Market Street, Suite 1100, Saint Louis, MO 63101, for appellant.
Garrick F.D. Aplin, P.O. Box 899, 221 West High St., Jefferson City, MO 65102, Ashley Bailey-Smith, 100 S. Central 2nd Fl, Clayton, MO 65102, for respondent.
Reno Whitt appeals the trial court's judgment denying his amended Rule 29.15 motion for post-conviction relief.1 Whitt's first point on appeal is that the trial court erred by not conducting an independent inquiry into whether Whitt was abandoned by post-conviction counsel. In his second and third points on appeal, Whitt argues the trial court erred in denying his amended motion because trial counsel was ineffective for failing to inform the court of juror misconduct and for failing to ask a particular question on cross-examination of a police officer. We affirm the judgment of the trial court.
On August 14, 2012, police officers responded to reports of cars being broken into at apartment complexes in St. Louis County. As an officer responded to one of the apartment complexes, he saw a red Pontiac meeting the description of the vehicle occupied by the suspects. Reno Whitt was the driver of the red Pontiac, which was also occupied by three passengers. Whitt fled at speeds exceeding 80 miles per hour in a 40-mile-per-hour zone. He ultimately lost control of the red Pontiac and struck an electrical pole. Whitt's front passenger, Ricky Nelson, died from injuries sustained in the crash.
When police approached the red Pontiac, none of the occupants, including Whitt, said anything about a gun in the car. Office Brian Wilcox recovered a .380 caliber semi-automatic pistol from the rear passenger-side floorboard of the red Pontiac.
Whitt was charged in St. Louis County with murder in the second degree (felony murder) for the death of Ricky Nelson, resisting or interfering with arrest, assault of a law enforcement officer in the second degree, and eight counts of tampering with a motor vehicle in the first degree. He was charged as a persistent offender.
A trial jury found Whitt guilty of resisting a lawful stop and three counts of tampering. The jury found Whitt not guilty of assault of a law enforcement officer. The jury failed to return a verdict on felony murder, and the trial court declared a mistrial on that charge.
On July 18, 2016, Whitt was retried for felony murder. At trial, Whitt testified that he was the driver of the red Pontiac. According to Whitt, the other three suspects, including Keith Gray, who Whitt stated he met that night, planned to break into cars at the apartment complexes. Whitt claimed that, when the police arrived, he intended to jump out of the car and run. Instead, Gray, who occupied the rear passenger-side seat, held a gun against Whitt's side and ordered him to continue driving. Whitt claimed that he believed Gray would have shot him if he attempted to jump out and run, so he had no choice but to continue driving. Whitt alleged that Gray held the gun against Whitt's side until he lost control of the car and crashed. Whitt's trial counsel presented photographs of the pistol retrieved from the rear passenger-side floorboard.
Officer Wilcox testified that he retrieved the pistol from the rear passenger-side floorboard of the red Pontiac. He was not asked, and did not testify to, whether the pistol was loaded.
At the conclusion of the trial, Whitt's trial counsel offered a duress instruction, which the trial court submitted as Instruction No. 7. The court instructed the jury that it must find Whitt not guilty if: (1) Gray threatened the imminent use of physical force against Whitt; (2) this threatened use of force was such that a person of reasonable firmness in the defendant's situation would not have been able to resist; (3) Whitt was thereby coerced into engaging in the underlying felony of resisting a lawful stop; and (4) Whitt did not recklessly place himself in a situation in which it was probable he would be subjected to threatened use of such force.
The jury convicted Whitt of the felony murder of Ricky Nelson. On September 21, 2018, the trial court sentenced Whitt to 30 years in prison, to be served concurrently with his other sentences.
On November 18, 2019, Whitt timely filed his pro se Rule 29.15 motion. In his motion, Whitt raised three claims: (1) trial counsel was ineffective for failing to object to the relevance of photographs offered by the State depicting damage to a police car; (2) trial counsel was ineffective for failing to inform the trial court of juror misconduct, specifically that a juror knew one of the State's witnesses but did not inform the court; and (3) trial counsel was ineffective for failing to elicit on cross-examination of Officer Wilcox that the pistol he recovered from the red Pontiac was loaded.
Whitt's post-conviction counsel entered his appearance on March 22, 2021. On May 13, 2021, post-conviction counsel moved for a 30-day extension of time to file an amended Rule 29.15 motion. The trial court did not grant the motion until May 25, 2021, four days after the amended motion was due to be filed. On June 14, 2021, post-conviction counsel moved for another 30-day extension, which the court granted on June 19, 2021. Post-conviction counsel ultimately filed the amended Rule 29.15 motion and a request for an evidentiary hearing on July 21, 2021. The amended motion contained seven claims, including the three claims raised by Whitt in his pro se motion.
On January 25, 2022, the trial court entered its findings of fact and conclusions of law denying Whitt's amended Rule 29.15 motion without an evidentiary hearing. Regarding Whitt's three claims of ineffective assistance of trial counsel, the trial court concluded that the State's photographic exhibits were admissible, and trial counsel's failure to object to them did not prejudice Whitt.2 The court found Whitt's claim regarding counsel's failure to report juror misconduct to be "skeletal" and "barely conclusory." Finally, the court denied Whitt's claim that trial counsel was deficient in cross-examining Officer Wilcox because Whitt did not plead facts warranting relief and the alleged deficiency did not prejudice Whitt.
Whitt now appeals.
Appellate review of a judgment denying a Rule 29.15 motion for post-conviction relief is limited to whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). The motion court's findings and conclusions are clearly erroneous only if a full review of the record leaves the reviewing court with "the definite and firm impression that a mistake has been made." Moore v. State , 458 S.W.3d 822, 829 (Mo. banc 2015). A movant has the burden to show by a preponderance of the evidence that the motion court clearly erred in its ruling. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009).
Whitt raises three points on appeal. In his first point, Whitt argues the trial court erred by failing to inquire into whether post-conviction counsel abandoned Whitt by untimely filing the amended Rule 29.15 motion. In his second and third points, Whitt argues the court erred by denying the amended motion without an evidentiary hearing on Whitt's claims that trial counsel was ineffective for failing to inform the court of juror misconduct and for failing to cross-examine Officer Wilcox about whether the pistol was loaded.
Before reaching the merits of this appeal, we first consider Whitt's argument that post-conviction counsel untimely filed the amended Rule 29.15 motion, and the trial court erred in not independently inquiring into whether post-conviction counsel abandoned Whitt. See Childers v. State , 462 S.W.3d 825, 827 (Mo. App. E.D. 2015).
At the time Whitt's motions were filed, Rule 29.15 provided that, when a movant files a post-conviction relief motion after a direct appeal, an amended motion must be filed within 60 days of "the earlier of the date both the mandate of the appellate court is issued and: (1) Counsel is appointed, or (2) An entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant."3 Rule 29.15(g); Hornsey v. State , 649 S.W.3d 386, 388 (Mo. App. E.D. 2022). "The Supreme Court of Missouri has directed that any motion for an extension of time under Rule 29.15 must be made and granted within the time that the amended motion is due." Jones v. State , 643 S.W.3d 918, 921 (Mo. App. E.D. 2022) (emphasis in original) (citing Clemmons v. State , 785 S.W.2d 524, 527 (Mo. banc 1990) ). The motion court may not grant an extension of time after the deadline has passed. Jones , 643 S.W.3d at 921.
Here, post-conviction counsel entered his appearance on March 22, 2021, and the amended motion was due to be filed within 60 days, or no later than May 21, 2021. On May 13, 2021, counsel moved for an extension of time to file the amended motion, but the court did not grant the extension until May 25, 2021, four days after the amended motion was due to be filed. Because the motion for extension of time was not both made and granted within the time the amended motion was due, the court could not grant the extension and the amended motion was untimely filed. See id. at 922.
As Whitt points out, the untimely filing of an amended Rule 29.15 motion by post-conviction counsel can constitute "abandonment" of the movant.4 Moore , 458 S.W.3d at 825. Generally, when an amended motion is untimely filed, the motion court must conduct an independent inquiry to determine whether the untimely filing was due to post-conviction counsel's abandonment of the movant. Harley v. State , 633 S.W.3d 912, 916 (Mo. App. E.D. 2021) ; Childers , 462 S.W.3d at 827. If counsel did not abandon the movant, the deadline for filing the ...
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