Deleon v. State

690 S.W.3d 535

Jeffrey J. DELEON, Appellant,

v.STATE of Missouri, Respondent.

No. ED 111372

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: May 7, 2024

Application for Transfer to Supreme Court Denied July 9, 2024

Appeal from the Circuit Court of St. Louis County, Cause No. 20SL-CC05258, Honorable William M. Corrigan, Jr., Judge FOR APPELLANT: Edward S. Thompson, 1010 Market Street Suite 1100, St. Louis, Mo 63101.

FOR RESPONDENT: Andrew Bailey, Gregory L. Barnes, P.O. Box 899, Jefferson City, MO 65102.

Renée D. Hardin-Tammons, J.

Introduction

Jeffrey DeLeon ("Appellant") appeals the motion court’s judgment denying his amended Rule 29.15 motion for post-conviction relief following an evidentiary hearing.¹ In his first point on appeal, Appellant argues that the motion court erred in denying his amended motion because trial counsel was ineffective for failing to consult with, retain, and call an independent DNA expert. In his second point on appeal, Appellant argues that the motion court erred because trial counsel was ineffective for failing to consult with, retain, and call an independent pharmacological expert. We affirm the judgment of the motion court.

Factual and Procedural Background²

The State charged Appellant with first-degree sodomy pursuant to Section 566.062 RSMo.³ Following a jury trial on November 5-7, 2018, Appellant was convicted of attempted first-degree sodomy. After Appellant waived jury sentencing, the court sentenced him to fifteen years’ imprisonment. Appellant’s conviction was affirmed on direct appeal by per curiam order and memorandum. The evidence at trial was as follows.

During the evening and night of December 12-13, 2015, Victim visited a friend at her apartment complex, with plans to spend the night. Victim, her friend, her friend’s neighbors, and her friend’s neighbor’s friends—including Appellant—drank and socialized together in the apartment courtyard. Victim and Appellant met one another for the first time at this gathering. Victim, who normally took the medication "Paxil," skipped her dosage to avoid the medication negatively reacting with any alcohol she would consume. There was no evidence that Victim had ever experienced psychiatric side-effects from Paxil, and Victim testified that she "remembered everything that happened that night."

Victim slept in her friend’s bedroom. Victim awoke when she "felt someone’s head between [her] legs," "with his mouth on [her] lips," which she clarified to mean the skin of her vagina. While Victim had gone to bed fully clothed, she realized "that [Appellant] had taken [her] pants and [her] panties [off]." Victim first assumed that Appellant was her boyfriend, before touching Appellant’s head and realizing that he was "almost bald," in contrast to her boyfriend, who "wore his hair military cut" with "spikes." Victim then screamed to turn on the lights and for Appellant to stop. Appellant turned on the lights, and Victim accused him of raping her. Appellant apologized and fled the apartment, leaving his hat behind in the bed. Victim had recognized Appellant from the gathering a few hours earlier.

Immediately after Appellant fled the apartment, Victim ran into her friend’s son’s bedroom and told him to go get his mother, because she had "just been raped." Victim was "wrapped up in some- thing that [she] had grabbed from [her friend’s] closet."

Victim called the police and her boyfriend, got dressed, and then ran from the apartment complex down the hill to the end of the road to wait for the police. Victim’s boyfriend testified that Victim was hysterical while she recounted to him over the phone that she "woke up with someone between her legs."

The police arrived at 2:58 a.m., within 10 minutes of Victim’s call. Victim was screaming and crying while waving the officers down. Victim told one of the officers that she "had woken up to the feeling of someone performing oral sex between her legs." The officer remarked that, although Victim smelled of alcohol, she was coherent and steady on her feet. The officers drove Victim back towards the apartment building. An officer testified that, as they approached the building, he saw Appellant in the street behind the apartment building and noticed that Appellant’s shorts were unzipped. Upon seeing Appellant, Victim immediately began yelling at him, accusing him of raping her. Victim was taken to a hospital, where a Sexual Assault Nurse Examiner performed an examination.

Appellant waived his Miranda rights and gave a written and oral statement to the police, denying his presence in the bed and bedroom where Victim had slept. Appellant provided multiple inconsistent and conflicting stories to explain his presence in the apartment. For example, Appellant first specifically denied that he had been wearing a hat and that he had been in the bedroom. Appellant then said that he had been wearing a hat, but that he had taken it off in his car. He then stated that he had taken it off when he went to sleep on the couch in Victim’s friend’s apartment. Appellant did not provide an explanation as to why his hat was found in Victim’s bed. Further, Appellant had claimed that he left Victim’s friend’s apartment between 10:30 and 11:00 p.m., after spending "two minutes" there, to go to his girlfriend’s house in Fenton, fifteen minutes away, only to return to Victim’s friend’s apartment upon finding his girlfriend’s house locked. Appellant later changed his story, claiming to have left the apartment for his girlfriend’s house at 1:30 or 2:00 a.m.

DNA analysis confirmed the presence of Appellant’s DNA on the hat found in the bed where Victim had slept and on the waistband of Victim’s underwear. Victim’s external vaginal swab detected a low amount of male DNA, but the concentration was insufficient to permit a comparison test. The male DNA was from neither semen nor sperm cells.

During closing argument, the prosecutor reminded the jury that Victim was visibly in distress on the stand when testifying three years after the night in question. Appellant did not put on any evidence in his defense.

After his conviction, Appellant timely filed a pro se Rule 29.15 motion on October 20, 2020 and an amended motion on December 24, 2021. On July 29, 2022, the motion court conducted an evidentiary hearing, which was later supplemented with Appellant’s deposition taken on September 13, 2022. In addition to his own testimony and that of his trial counsel, Appellant introduced expert testimony from a DNA expert and a pharmacological expert. As detailed more thoroughly below, the DNA expert explained the theory of "secondary touch DNA transfer," and the pharmacological expert explained that a small fraction of Paxil takers can experience psychological side-effects.

The motion court entered its findings of fact, conclusions of law, and order and judgment on December 6, 2022, finding that trial counsel was not ineffective because trial counsel’s decision not to consult with, retain, and call independent DNA and pharmacological experts was a reasonable trial strategy; likewise, the motion court found that Appellant suffered no prejudice from his trial counsel’s alleged deficiency in representation.

This appeal follows.

Standard of Review

[1–6] 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. Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019); 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). The motion court is "entitled to believe all, part, or none of the evidence presented at the post-conviction hearing." State v. Hunter, 840 S.W.2d 850, 863 (Mo. banc 1992). The findings are presumed correct. McLaughlin v. State, 378 S.W.3d 328, 336–37 (Mo. banc 2012). "We view the record in the light most favorable to the motion court’s judgment, accepting as true all evidence and inferences that support the judgment and disregarding evidence and inferences that are contrary to the judgment." Oliphant v. State, 525 S.W.3d 572, 577 (Mo. App. S.D. 2017); see also State v. Gilbert, 103 S.W.3d 743, 748 (Mo. banc 2003). 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). "[A] trial court judgment will be affirmed if cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or not sufficient." Driskill v. State, 626 S.W.3d 212, 224 n.6 (Mo. banc 2021) (quoting Hosier v. State, 593 S.W.3d 75, 83 n.2 (Mo. banc 2019)).

Discussion

To succeed on a claim of ineffective assistance of counsel, a movant must show, by a preponderance of the evidence, facts, not mere conclusions, demonstrating: (1) counsel failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney under similar circumstances, and (2) counsel’s deficient performance prejudiced the movant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McLaughlin, 378 S.W.3d at 337. If a movant fails to satisfy either element of the test, they are not entitled to relief. Creighton v. State, 520 S.W.3d 416, 422 (Mo. banc 2017).

[7, 8] "A movant must overcome the strong presumption that trial counsel’s conduct was reasonable and effective." Hosier, 593 S.W.3d at 81 (citing Davis v. State, 486 S.W.3d 898, 906 (Mo. banc 2016)) (internal quotations omitted). "To overcome this presumption, a movant must identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Id. "Reasonable choices of trial strategy, no matter how ill-fated they...