Amlin v. State

677 S.W.3d 585

Qwenten Deon AMLIN, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 37647

Missouri Court of Appeals, Southern District, In Division.

Filed: September 19, 2023

Rehearing and/or Transfer Denied October 5, 2023

Application for Transfer Denied November 21, 2023

DAMIEN SEPHER BHAKTI DE LOYOLA, Kansas City, Mo, for Appellant.

KRISTEN S. JOHNSON, Jefferson City, Mo, for Respondent.

DON E. BURRELL, J.

Qwenten Deon Amlin ("Movant") appeals the judgment of the circuit court ("the motion court") that denied his amended motion for postconviction relief under Rule 29.15 after an evidentiary hearing.¹ Defendant raises four ineffective assistance of counsel ("IAC") claims (points 1, 2, 4, and 5), along with his Point-3 claim that the motion court failed to make findings and conclusions of law as required by Rule 29.15(j). Finding no merit in any of Movant's points, we affirm the denial of post-conviction relief.

Factual and Procedural Background²

We affirmed Movant's conviction on direct appeal in an unpublished order and statement. State v. Amlin , No. SD35993, slip op. (Mo. App. S.D. May 21, 2020). We borrow facts from that statement without further attribution.

Shawn Markin ("trial counsel Markin") and Hannah Kahn ("trial counsel Kahn") (collectively, "trial counsel") represented Movant at trial. Victim and Movant both testified at trial, and there was no dispute that they had a sexual encounter. The only issue for the jury to decide was whether the encounter was consensual. The jury found that it was not, and it found Movant guilty of first-degree rape, armed criminal action, two counts of first-degree sodomy, and unlawful possession of a firearm. Movant was subsequently sentenced to serve a total of 105 years in prison. We will recite additional evidence below as necessary to address Movant's points on appeal.

Standard of Review and Governing Law

This Court reviews the denial of post-conviction relief to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k).... This Court defers to the motion court's superior opportunity to judge the credibility of witnesses.

To be entitled to post-conviction relief for [IAC], a movant must show by a preponderance of the evidence his or her trial counsel failed to meet the Strickland test to prove his or her claims. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland , Movant must demonstrate: (1) trial counsel failed to exercise the level of skill and diligence reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure. Id. at 687.

Sours v. State , 580 S.W.3d 618, 622-23 (Mo. App. S.D. 2019) (citing Shockley v. State , 579 S.W.3d 881, 892-93 (Mo. banc 2019) ) (internal quotations and citations omitted).

Analysis

Point 1 – Alleged IAC for eliciting testimony from Movant that he had invoked his right to remain silent

Movant's first point claims the motion court clearly erred when it found that trial counsel was not ineffective for eliciting testimony from Movant that he had "invoked his right[ ] [to remain silent] and terminated the interrogation" when law enforcement questioned him about this incident. We disagree.

During Movant's direct examination at trial, the following exchange occurred between Movant and trial counsel Markin:

Q. Then, in November of, I believe, 2016, did you have -- were you contacted by police?

A. Yes, sir.

Q. And was that Detective Umbarger?

A. Yes, sir. It was in December.

Q. December? Okay. And did she read off your Miranda rights form?

A. Yes, sir.

Q. Did you understand those rights?

A. Yes, sir, I did.

Q. And you understood you could invoke those at any time?

A. Yes, sir.

Q. And did you wind up invoking your constitutionally protected rights?

[Prosecutor]: Objection. Relevance.

THE COURT: I'll allow it.

Q. (By [trial counsel] Markin) You can answer the question.

A. Repeat the question.

Q. And did you invoke, at some point in time, your constitutionally protected rights?

A. Yes, sir.

Q. And that was to -- you asked for an attorney; is that correct?

A. Yes, sir. During the middle of the interview.

Q. And did you understand -- and why did you do that?

A. I didn't know what it was about.

During closing argument, the State argued to the jury, without objection, that Movant's invocation of his right to remain silent was evidence of his consciousness of guilt. Movant argues that trial counsel Markin acted unreasonably in eliciting that testimony from Movant because it "undercut [Movant]’s credibility in this close case in which [Movant]’s credibility was paramount to the defense."

In denying Movant's request for relief on this issue, the motion court stated as follows:

During the hearing ..., [trial counsel] acknowledged that Movant initially told the detective that he was not in the area or location at the time the rape occurred. [Trial] counsel further acknowledged that DNA evidence was received showing Movant's DNA present at the crime scene.

[Trial c]ounsel also acknowledged that they would have to explain why Movant's defense that it was a consensual encounter should be believed since Movant previously stated he was not in the area where the rape occurred. Additionally, Movant explained why he invoked his right to counsel by stating that he "didn't know what it was about."

Trial counsel [Markin] was attempting to explain why [Movant's] story had drastically changed from not being present to arguing it was a consensual encounter. Thus, trial counsel was placed in a difficult position because of the statements Movant had initially made to the detective and was attempting to find a way to explain the change in statements. As such, trial counsel's decision to elicit the contested testimony in question was sound trial strategy and there has been no prejudice demonstrated.

The motion court's findings on this issue are not clearly erroneous.

Trial counsel were faced with the task of explaining to the jury why Movant made inconsistent statements to law enforcement about his presence at the scene, first stating that he was not there at all, then stating that he was there only after law enforcement found his DNA at the crime scene. Trial counsel made the strategic decision to explain this inconsistency to the jury by stating that Movant did not know what police were questioning him about, thus Movant's invocation of his right to counsel. Such strategic trial decisions based upon trial counsel's investigation of the law and facts are "virtually unchallengeable." Binion v. State , 649 S.W.3d 359, 365 (Mo. App. E.D. 2022) (quoting Shockley , 579 S.W.3d at 892 ).

Because Movant has failed to demonstrate that trial counsel's strategy was unreasonable, the motion court did not clearly err in denying Movant relief. Point 1 is denied.

Point 2 – Alleged IAC for failing to request a lesser-included jury instruction

Movant's second point claims the motion court clearly erred when it found that trial counsel was not ineffective for failing to request a jury instruction on the lesser-included offense of second-degree sodomy and admit guilt to that lesser-included offense as an effort to bolster Movant's credibility. We disagree.

To specifically establish [IAC] for failure to request a lesser-included offense instruction, [Movant] must show that the evidence would have required submission of a lesser-included offense instruction had one been requested, that the decision not to request the instruction was not reasonable trial strategy, and that he was thereby prejudiced. Jackson v. State , 205 S.W.3d 282, 285 (Mo. App. E.D. 2006). "An objectively reasonable choice not to submit an available instruction does not constitute [IAC]." Love v. State , 670 S.W.2d 499, 502 (Mo. banc 1984). " ‘It is a tactical decision usually based on the belief—often a reasonable one—that the jury may convict of the lesser offense, if submitted, rather than render a not guilty verdict on the higher offense if the lesser is not submitted.’ " Neal v. State , 99 S.W.3d 571, 576 (Mo. App. S.D. 2003) (quoting State v. Olson , 636 S.W.2d 318, 322 (Mo. banc 1982), overruled on other grounds by State v. Santillan , 948 S.W.2d 574, 576 (Mo. banc 1997) ).

Oplinger v. State , 350 S.W.3d 474, 477 (Mo. App. S.D. 2011). The decision not to request the lesser-included offense is presumed to be a reasonable trial strategy. See Jones v. State , 514 S.W.3d 72, 80 (Mo. App. E.D. 2017).

At the evidentiary hearing, trial counsel Markin testified that Movant maintained his innocence and wanted an "all or nothing" defense. The motion court found trial counsel Markin's testimony to be credible and found that the decision to not request a lesser-included instruction was "sound [trial strategy,] given the facts of the case." Moreover, the motion court explicitly found that Movant was not credible when he testified that he would have preferred admitting guilt to a lesser-included offense than the all-or-nothing defense presented at trial. Such credibility determinations are solely within the province of the motion court. Anderson v. State , 564 S.W.3d 592, 608 (Mo. banc 2018) (reviewing court "will not challenge the motion court's [credibility] determination ... as it could make the best observation") (internal citation omitted).

Trial counsel is not ineffective for failing to request a lesser-included instruction when to request it would be inconsistent with the defense presented at trial, as "[c]ounsel will not be deemed ineffective ‘for seeking to employ the best defense for [his or her] client by not offering the jury a middle ground for conviction.’ " Jones , 514 S.W.3d at 82 (quoting Jackson v. State , 205 S.W.3d 282, 286 (Mo. App. E.D. 2006) ). Point 2 is denied.

Points 3 & 4 – Alleged IAC for eliciting statements from a witness who did not testify at trial, and that the motion court failed to make findings and conclusions on this claim

Defendant's fourth point claims that trial co...