Saturday, April 20, 2019

Novel Claims Rejected

The Missouri Supreme Court affirmed the rejection of post-conviction claims of a defendant convicted of the murder of a police officer who was investigating his possible criminal involvement in a fatal traffic accident. 

The court majority rejected ineffective assistance of counsel claims

Movant raises four points related to Juror 58’s conduct during voir dire and while serving on the jury. Two months before serving on the jury, Juror 58 published a 184-page book, which he described as a fictionalized autobiography. The book contains six pages chronicling the protagonist’s brutal and graphic revenge murder of a defendant who killed the protagonist’s wife in a drunken-driving accident. The protagonist viewed the defendant as escaping justice in the court system because the defendant received only probation following his conviction. The book’s front and back covers contain illustrations of blood spatter. The back cover states the protagonist’s life changed forever when his wife was killed and her murderer was set free. The cover states the protagonist “sought vengeance” and “seeks justice” and “knows he will die fighting the system.”

Point one

Movant argues the motion court clearly erred in denying his claim trial counsel were ineffective for failing to question Juror 58 when he volunteered he was a published author. Movant claims questioning Juror 58 about the book’s contents would have uncovered grounds to strike him for cause. Movant claims he was prejudiced because the book’s contents demonstrated Juror 58 could not serve fairly and should have been struck for cause.

The issue was not explored in voir dire and

Juror 58 was chosen for the jury and served as the foreman. The jury returned a guilty verdict. That evening, Movant’s aunt provided trial counsel with a copy of Juror 58’s book. Kessler reviewed the book overnight and presented arguments concerning Juror 58’s fitness to serve as a juror the next day.

[Defense counsel] Kessler read excerpts into the record and argued the excerpts demonstrated Juror 58 was not truthful when he answered questions during voir dire. Kessler asked the circuit court to question Juror 58 on the record about the book’s contents and his personal beliefs. Kessler also requested the circuit court question all of the jurors about any effect Juror 58’s personal beliefs and opinions had on jury deliberations. The circuit court denied the request to question Juror 58 because it found no evidence of juror misconduct and believed questioning Juror 58 might improperly taint the whole jury. Kessler then moved for a mistrial, arguing he would have to concede ineffectiveness for failing to inquire about the book during voir dire. The circuit court overruled the motion but advised Movant he could question the jurors, if necessary, after the trial. Juror 58 later was removed from the jury by the consent of the parties and did not participate in the penalty phase.

Trial counsel sought a new trial and the claims regarding the juror were rejected on direct appeal

In this case, Movant had an opportunity to litigate this claim during the hearing on his motion for new trial. However, trial counsel declined to raise the issue in hopes of strengthening their argument for a life sentence for Movant. Further, Movant raised issues related to this claim on direct appeal, arguing he suffered prejudice because Juror 58 may have improperly influenced other jurors by speaking about the book’s contents, which he believed impacted the verdict. Shockley, 410 S.W.3d at 199-200. This Court found no basis for reversal was demonstrated because it would not speculate about Juror 58’s actions or influences when trial counsel declined to question Juror 58 at the hearing on Movant’s motion for new trial. Id. at 201-02.

The court majority rejected a host of other claims of ineffective assistance by trial and appellate counsel.

Juror 58 drew a dissent from Judge Laura Denvir Stith

I respectfully dissent from the portion of the principal opinion holding counsel were not ineffective in failing to question Juror 58 during voir dire about the provocative novel he admitted writing and in failing to call other jurors in support of Mr. Shockley’s motion for new trial. On direct appeal, this Court held, because of these failures, the record did not support Mr. Shockley’s claim that Juror 58 should have been stricken for cause or that the other jurors saw his book and it affected their deliberations. State v. Shockley, 410 S.W.3d 179, 201 (Mo. banc 2013). Because the postconviction hearing demonstrates counsel had no valid strategic reason for failing to voir dire Juror 58 and for choosing not to question other jurors about when and how they were exposed to his violent novel, I would find both failures constituted ineffective assistance that may have affected the outcome of the trial...

The principal opinion states that finding counsel’s voir dire ineffective would be equivalent to adopting a rule that “a potential juror’s employment as an author, standing alone, establishes the juror has ‘multiple sources of bias.’” The dispositive fact here is not  that Juror 58 was an author. What is relevant here is that Juror 58, on his own initiative, approached the bench during a break to inform the court he had not revealed as yet during voir dire that he was a published author and he thought “maybe I should be coming out with fact [sic] as well.” When a venireperson feels strongly enough that a piece of information may be relevant for consideration in voir dire that he himself suggests it to the court on his own initiative, defense counsel is ineffective in failing to investigate what made the venireperson believe the information needed to be disclosed . For this reason, the principal opinion’s attempt to distinguish Knese v. State, 85 S.W.3d 628, 632 (Mo. banc 2002), is unavailing. As in that case, the failure here to conduct a basic investigation of the juror’s bias was ineffective.

This error was compounded by counsel’s rejection of the circuit court’s offer to allow counsel to call Juror 58 and other jurors during the hearing on the motion for new trial. The failure to follow up during voir dire and by calling jurors in support of the motion for new trial meant the record before the circuit court and this Court on appeal did not support grant of a new trial, resulting in the conviction being affirmed on appeal.

The principal opinion states the decision not to call jurors in support of the motion for new trial was reasonable in that counsel believed, because the jury was unable to agree whether to impose the death penalty, the trial judge was unlikely to impose death, as they had never had a trial judge impose a death sentence when the jury could not agree on punishment. In other words, counsel filed a motion for new trial but chose not to support it with testimony in the hopes the judge would give a favorable ruling on death.

If counsel believed errors in the trial merited a new trial, they had a duty to file a proper and supported motion for new trial. They failed to meet their duty by filing a motion they admittedly chose not to fully support with facts. Moreover, if what counsel wanted was to have the judge decide punishment while knowing the jury deadlocked, they could have requested the judge and State consent to doing just that even if a new trial were granted. Failing to investigate juror misconduct, however, was not an option. Yet counsel made the decision to forego any questioning of Juror 58 or the other jurors about whether they were exposed to Juror 58’s novel and the extent of that exposure.

Knese v. State involved the following

Knese argues that his counsel, was ineffective for not striking two jurors as biased and unqualified.   Counsel has been a member of the Missouri bar since 1967, minus a nine-and-a-half-year disbarment. He tried over 20 criminal cases-including several capital cases.

[Editor's note: that is a rather significant minus] 

In preparation for voir dire, counsel reviewed the questionnaires completed by the venire.   However, he did not review those received on the morning of trial.   Two of these were from (eventual) jurors Dennis K. Gray and Richard R. Maloney.   The questionnaires requested opinions on crime and the death penalty.   Gray-the foreman-believes our laws are “way too soft” on criminals.   His solution to crime is to “build more jails,” and give out longer sentences and fewer paroles.   Regarding the death penalty he stated:  “make executions public.   If a criminal knew he was being executed in a public square in front of thousands of people, he might [think] twice about committing a murder.”   Maloney stated that he disfavored “endless appeals,” “parole boards,” “good time,” and “clergy to pamper a killer,” and wrote:  “if he is found guilty, do it.”

Counsel did not read these questionnaires until after trial.   He testified that when he read Gray's responses:  “I about vomited;”  “I missed it and there is no chance that I would have left [Gray] on a jury if I would have seen it ahead of time.”   Gray “would have been my first strike ․ the mistake in this case, I believe, is the most egregious mistake I've ever made in the trial of a case.   It could well have had catastrophic consequences for my client and there's no excuse for it.”   Counsel did not question Gray directly.   The court collectively asked the venire one question about following the court's instructions:  “Is there anybody that could not follow the Court's instructions with respect to the range of punishment?   Basically folks, that is what I'm asking you is the death penalty question.   Is there anybody here that feels that they could not follow the Court's instructions?”   See State v. Nicklasson, 967 S.W.2d 596, 611 (Mo. banc), cert. denied, 525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457 (1998).   Gray did not respond to the court's question.

As for Maloney's questionnaire, counsel testified that he was “flabbergasted;”  “for any criminal defense lawyer ․ to leave a man who responds like he did ․ is just an egregious error, and especially in a case like this;”  he does not have “a ghost of a chance of being fair and-fair and impartial.”   Counsel would have struck Maloney.   He did not question Maloney directly.   As a member of the venire, Maloney did not respond to the general question-asked by the court-quoted above about following the court's instructions.

(Mike Frisch)

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