Wooten v. State

• Decision Date: 15 November 2022
• Docket Number: ED 110150
• Citation: 654 S.W.3d 904
• Parties: Dashuan M. WOOTEN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

654 S.W.3d 904

Dashuan M. WOOTEN, Appellant,

v.STATE of Missouri, Respondent.

No. ED 110150

Missouri Court of Appeals, Eastern District, DIVISION FIVE.

Filed: November 15, 2022

FOR APPELLANT: Kristina S. Olson, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: Eric Schmitt, Gregory L. Barnes, P.O. Box 899, 221 West High Street, Jefferson City, Missouri 65102.

Lisa P. Page, Judge

Dashaun Wooten (Movant) appeals from the denial of his Rule 29.15¹ motion for post-conviction relief after an evidentiary hearing. Movant was convicted of first-degree assault, armed criminal action, and unlawful possession of a firearm. The trial court sentenced him to three concurrent terms of ten years in the Missouri Department of Corrections. This Court affirmed his convictions and sentences in State v. Wooten , 573 S.W.3d 146 (Mo. App. E.D. 2019). We affirm.

Background

This case arises out of an incident that occurred on September 8, 2015. Movant's bench trial took place in October 2017 and he was sentenced in December 2017. The facts found by this Court on direct appeal were as follows:

On September 8, 2015, St. Louis County Police Officer M.W. was dispatched to a location in the municipality of Glasgow Village for a reported shooting. At the scene, the officer spoke with the Victim, who told her that Keland Baker's cousin shot him.² With respect to the events leading up to the shooting, Victim told Officer M.W. the following: While he was at the Uptown Market, a small grocery store located near the scene of the shooting, Victim began arguing with Baker, who was with [Movant] at the store. Victim left the store and began to walk away but Baker and [Movant] gave chase. Victim attempted to escape by running to a friend's house nearby where he was shot by [Movant] twice in the right leg. [Movant] fired five shots in all.

On September 10, 2015, while Victim was still hospitalized, he was interviewed separately by Detective T.E. and Detective J.A. Victim told Detective T.E. about his history of conflict with Baker and [Movant], and also described the shooting to the detective. Victim stated that two months before the shooting, he had argued with Baker and had a physical altercation with [Movant]. Victim also told Detective T.E. that on the day of the shooting, he was at Uptown Market when Baker entered the store and they argued again. Victim stated that [Movant] shot him and described [Movant] as a black male, about six feet tall, with short dreadlocks.

Detective J.A. then interviewed Victim. He showed Victim two photograph lineups. From the first lineup, Victim identified Baker, and from the second lineup, Victim identified another individual unrelated to this case. Victim told Detective J.A. that while he recognized those two individuals, neither was involved in the shooting. Detective J.A. showed Victim a recent photograph of [Movant] and, without hesitation according to Detective J.A., Victim identified [Movant] as the shooter.

Several months later, just before the December 2015 preliminary hearing, Victim described the events that led up to the shooting to Assistant Prosecuting Attorney T.R. His description was consistent with his prior statements described above. At the preliminary hearing, Victim identified [Movant] as the shooter. Then, a year and a half later, in May 2017, Victim told Officer B.K. and another assistant prosecuting attorney that [Movant] was the shooter.

But at the October 30, 2017 trial, just five months after Victim had again identified [Movant] as the shooter, Victim testified that he no longer remembered any of the aforementioned statements identifying [Movant] as the shooter. The State then called as witnesses the four aforementioned police officers and Assistant Prosecuting Attorney T.R. and each testified, over [Movant]’s objections, that Victim identified [Movant] as the shooter. The court found [Movant] guilty on all counts and sentenced him to three concurrent terms of ten years in prison.

State v. Wooten , 573 S.W.3d 146, 148-49 (Mo. App. E.D. 2019).

After his convictions and sentences were affirmed on direct appeal, Movant timely filed his pro se motion for post-conviction relief under Rule 29.15. Post-conviction counsel (PCR Counsel) entered on his behalf and the court granted an extension for amending Movant's motion. On July 24, 2020, Movant's untimely motion to vacate, set aside or correct the judgment and sentence was filed. However, after an independent inquiry, the court agreed to treat the motion as if it was timely filed, pursuant to Sanders v. State , 807 S.W.2d 493 (Mo. banc 1991). Movant's claims included that his trial counsel (Trial Counsel) was ineffective for failing to investigate and call his mother as an alibi witness, and that his appellate counsel (Appellate Counsel) was ineffective for failing to raise a spoliation claim on appeal.

The trial court held an evidentiary hearing on March 29, 2021, in which Trial Counsel and Appellate Counsel both testified. Movant and Mother testified as well.

Movant's evidentiary hearing testimony

At the evidentiary hearing, Movant testified that Trial Counsel did not present any witnesses on his behalf, although Movant sent him a letter requesting he contact his mother, Kayla Wooten (Mother), to testify on his behalf and provided her contact information. Movant claimed Mother would testify that he was with her and his son the whole weekend. On the night in question, Movant said he was at his mother's house with his four brothers and she was in the kitchen cooking when Keland Baker appeared sometime between 11 p.m. and midnight. Baker was sweating and asked Movant a bunch of questions about when he first got "locked up" and how to see if a person had warrants. However, the court noted Movant's motion stated that he just got out of jail and was going to his mother's house. Movant answered that the timing was a "whole mixup" and his release was "way in July," but the incident at issue occurred in September. Trial Counsel told Movant his Mother would not be a credible witness because she was family. When specifically asked about his testimony during the trial court's Rule 29.07 post-trial examination that he did not want family called as witnesses, Movant claimed he lied because Trial Counsel told him family could not be called.

Movant further testified that he insisted on a bench trial even though the judge was reluctant to do so because his attorney told him a racist white jury might convict him because he is black. He said Trial Counsel tried to force him to plead guilty and take a seven-year sentence. Movant recalled that he answered the court's questions during the post-trial 29.07 examination by indicating Trial Counsel did a good job for him, but he was afraid to say anything bad about his attorney because he knew the attorney had to file his notice of appeal. Movant agreed Trial Counsel deposed the victim at Movant's request, and that was when the victim decided he did not remember who shot him anymore.

Trial Counsel's evidentiary hearing testimony

Trial Counsel testified at the evidentiary hearing that Movant wished to have a bench trial. He said the trial defense was that Victim could not be trusted on his earlier statements to investigators accusing Movant, and that Victim now did not know who shot him. When asked about Movant's Mother as a witness, Trial Counsel answered that they discussed calling her, but Trial Counsel thought it was best to rely on Victim's testimony when they were preparing for a jury trial. "When it changed to a bench trial, I may have -- I would have made a different decision," he added, but that changed "late in the game."

Trial Counsel said he thought calling Mother was a bad idea because he did not think the jury would find her credible, but that Movant was trying to hide behind something, as opposed to focusing on Victim's credibility. However, when Movant's case became a bench trial, he said, "I think the biggest mistake I made was not pivoting at that point." However, he still had concerns about her credibility because one of the previous attorneys representing Movant made a note in the file that she spoke with Mother, who thought Movant may have been at her house until 9:30 p.m., but she needed to check her calendar; however, Mother never followed up. Trial Counsel's case log included a note that he contacted Mother and there were impeachment concerns based on her being Movant's mother, and that she had to check her calendar before she could ascertain Movant was with her, which she never confirmed.

Trial Counsel was questioned about his motion for sanctions for discovery violations against the State, which he explained he learned about during trial. He said the State's attorney and investigator visited Victim in the county jail and the investigator's notes, which included inculpatory evidence to use at trial, had been destroyed. The trial court denied Trial Counsel's motion for sanctions.

Mother's evidentiary hearing testimony

Mother testified that on September 8, 2015, she was at home with Movant and her four other sons. She said Movant did not leave that day. She claimed she was happy for Movant and his son because it was the day he got out of jail, or somewhere around that time, which Movant testified was actually in July. She specifically said it was Labor Day; however when the court questioned her about whether it was a Monday or Labor Day, she answered, "Should I have said around Labor Day?" Mother said she was not contacted by Trial Counsel about testifying at Movant's trial, but she would have been willing to testify had she been asked. She did not recall a conversation with the prior attorney who noted that she needed to check her calendar to verify Movant's alibi. Mother said she did not keep a calendar and could not go back to check if Movant was home with her that day.

On the day of the shooting, she testified she stayed in the same room with Movant day and night. She first claimed she...