Opinion
ED 107485
11-26-2019
Bradley G. TURNER, Appellant, v. STATE of Missouri, Respondent.
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b)
This memorandum is for the information of the parties and sets forth the reasons for our order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
Bradley G. Turner ("Movant") appeals the motion court’s judgment denying his motion for post-conviction relief pursuant to Rule 29.15 following an evidentiary hearing. We affirm.
BACKGROUND
We presume the parties' familiarity with the facts of this case and proceed directly to Movant's allegation of error.
DISCUSSION
Movant asserts two points on appeal. In his first point, Movant claims the motion court erred in denying his request for post-conviction relief following an evidentiary hearing because counsel was ineffective for submitting an instruction for the lesser-included offense of voluntary manslaughter because it was inconsistent with his theory of self-defense. Movant claims counsel submitted the instruction against his wishes and doing so violated Movant’s Sixth Amendment right to choose the objective of his defense and insist counsel refrain from admitting his guilt. In his second point, Movant argues the motion court erred in denying his motion for postconviction relief following an evidentiary hearing because counsel was ineffective for failing to call his mother, Marsha Barton ("Barton"), as a defense witness at trial. Movant claims Barton was willing and available to testify at trial and her testimony would have aided his theory of selfdefense
Standard of Review
We review the motion court’s denial of post-conviction relief only to determine whether the findings and conclusions of the court are clearly erroneous. McIntosh v. State , 413 S.W.3d 320, 323 (Mo. banc 2013) ; Rule 29.15(k). The motion court’s findings and conclusions will be considered clearly erroneous if, after reviewing the record in its entirety, we are left with the definite and firm impression a mistake was made. Id.
Analysis
Each of Movant’s points on appeal allege trial counsel was ineffective. To prevail on a post-conviction claim of ineffective assistance of counsel, Movant must show by a preponderance of the evidence that counsel failed to meet both prongs of the test set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland , Movant must show counsel failed to exercise the same level of skill and diligence of reasonably competent counsel in a similar situation, and that he was prejudiced by counsel’s failure. Id. at 687, 104 S.Ct. 2052. There is a strong presumption that counsel’s conduct was reasonable and effective. McIntosh , 413 S.W.3d at 324. To establish prejudice, Movant must prove there is a reasonable probability that but for the alleged errors of counsel, the result of the proceeding would have been different. Id.
Point One
In point one, Movant claims counsel violated his Sixth Amendment right to dictate his defense and to insist counsel refrain from admitting guilt. Movant argues counsel submitted the instruction on the lesser-included offense of voluntary manslaughter in contravention to his wishes.
In support of his argument, Movant cites the United States Supreme Court decision in McCoy v. Louisiana , ––– U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018). Counsel in McCoy specifically admitted the defendant’s guilt to the jury in his opening statement, informing the jury the evidence was "unambiguous," and his "client committed three murders." Id. at 1506-07. However, McCoy testified in his own defense at trial and maintained his innocence. Id. McCoy was convicted and filed a motion for new trial arguing the trial court violated his Constitutional rights by allowing counsel to concede his guilt over McCoy’s objection. Id. at 1503. The Court held the Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist counsel refrain from admitting guilt, even if counsel’s advice is to the contrary. Id. The Court granted the defendant a new trial on the basis that counsel’s admission of guilt despite McCoy’s objection thereto violated the Sixth Amendment. Id. at 1512.
The facts of the present case are distinguishable from McCoy . Here, counsel did not concede Movant’s guilt at any point during trial. Instead, he presented the theory of self-defense, which was consistent with Movant’s wishes. Counsel testified at the evidentiary hearing that his theory from the "very beginning" was self-defense and he "was arguing for self-defense all day long." The jury did not know Movant submitted the instruction on the lesser-included offense. Movant testified at trial he informed counsel he wanted an "all or nothing" defense and did not want counsel to submit voluntary manslaughter to the jury. However, Movant’s counsel testified at the evidentiary hearing that while he did not specifically recall discussing the decision to submit the voluntary manslaughter instruction with Movant, it was something he would "typically talk to a client about." Counsel also testified he did not recall Movant asking him not to submit any lesser-included offenses and pursue an "all or nothing" defense but if Movant had told him that, counsel would not have submitted the instruction. Moreover, the prosecuting attorney testified he would have submitted the instruction had counsel for Movant not done so. The motion court is responsible for determining the credibility of the witnesses at an evidentiary hearing, and we defer to such determination. Hurst v. State , 301 S.W.3d 112, 117 (Mo. App. E.D. 2010). The motion court’s judgment states, "even if the Court were to give credit to Movant’s assertion he communicated to [counsel] he wished him to pursue an ‘all-or-nothing’ strategy," Movant was not entitled to relief because he could not show the outcome would have been different absent counsel’s decision to submit the lesser-included offense to the jury. The record in this case supports the motion court’s conclusion, and as a result of the foregoing, the motion court did not clearly err in denying Movant’s request for post-conviction relief. Point one on appeal is denied.
Point Two
In his second point, Movant claims counsel was ineffective for failing to call his mother, Marsha Barton, as a witness in his defense at trial. Movant claims her testimony would have aided his self-defense theory.
To prevail on a claim of ineffective assistance for failure to call a witness, Movant must show counsel knew or should have known of the existence of the witness, the witness could be located through reasonable investigation, the witness was available to testify, and the testimony would have provided Movant with a viable defense. Hurst , 301 S.W.3d at 117 (internal citation omitted). Counsel’s failure to call a witness at trial will not ordinarily support a claim of ineffective assistance of counsel because such a decision is presumptively a matter of trial strategy. McFadden v. State , 553 S.W.3d 289, 305 (Mo. banc 2018). Strategic decisions may only serve as a basis for a claim of ineffective assistance of counsel if such decisions are unreasonable. Id. (quoting McLaughlin v. State , 378 S.W.3d 328, 337 (Mo. banc 2012) ). At the evidentiary hearing, Barton stated, in relevant part, she would have testified at trial she saw Movant and Bobby Graham ("Graham") leave Graham’s girlfriend’s house together that evening, and before they left she saw Graham put a knife in his sock. She also would have testified she later saw the victim and Movant at the cemetery where Movant’s younger brother was buried. This testimony was consistent with Movant’s testimony at trial.
Counsel testified at the evidentiary hearing that he knew of Barton and she was available to testify at trial; however, he chose not to call her at trial. He believed he was "losing the jury a little bit" on the issue of Movant and Graham’s visit to the cemetery, and counsel thought it was a "tangential issue" to Movant’s defense. Counsel testified he thought it would hinder the selfdefense theory to take the jury on the tangent of Barton’s additional testimony regarding seeing Movant and Graham at the cemetery.
The failure to present cumulative evidence does not constitute ineffective assistance of counsel. McLaughlin , 378 S.W.3d at 343. Movant testified to similar facts as those recited by Barton recited in her testimony at the evidentiary hearing. In light of Movant’s trial testimony, counsel’s decision not to call Barton to testify to the same or similar circumstances at the cemetery the night of Graham’s death was not unreasonable and did not constitute ineffective assistance of counsel. Therefore, the motion court did not clearly err in denying Movant’s request for post-conviction relief. Point two is denied.
CONCLUSION
For the foregoing reasons, the judgment of the motion court is affirmed pursuant to Rule 84.16(b).