Jones v. State

631 S.W.3d 682

Brian Shawn JONES, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 36915

Missouri Court of Appeals, Southern District, Division One.

Filed: September 1, 2021

Attorney for Appellant: Samuel E. Buffaloe of Columbia, MO.

Attorneys for Respondent: Eric S. Schmitt, Atty. Gen., and Karen L. Kramer, Asst. Atty. Gen., of Jefferson City, MO.

JEFFREY W. BATES, J.

Brian Jones (Jones) appeals from an order denying his amended Rule 29.15 motion to set aside his convictions for second-degree murder and armed criminal action (ACA). See §§ 565.021, 571.015.¹ Because the motion court's decision to deny relief after an evidentiary hearing was not clearly erroneous, we affirm.

Jones bore the burden of proving the grounds asserted in his post-conviction motion by a preponderance of the evidence. See Rule 29.15(i) ; McLaughlin v. State , 378 S.W.3d 328, 337 (Mo. banc 2012). Our review of the denial of a Rule 29.15 motion is limited to determining whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k) ; Williams v. State , 168 S.W.3d 433, 439 (Mo. banc 2005). We will find clear error only if a full review of the record leaves us with a definite and firm impression that a mistake has been made. Zink v. State , 278 S.W.3d 170, 175 (Mo. banc 2009). We presume the motion court's findings and conclusions are correct. McLaughlin , 378 S.W.3d at 336-37. Further, "this Court defers to the motion court's determination of credibility." Smith v. State , 413 S.W.3d 709, 715 (Mo. App. 2013). The following summary of facts has been prepared in accordance with these principles.

Jones was charged, as a prior and persistent offender, with second-degree murder and ACA for shooting and killing C.J.C. (Victim) in October 2014. A jury trial on these two counts was held.² The defense theory at trial was that Jones shot Victim in self-defense after Victim pulled a BB gun. Those testifying for the State, however, included two eyewitnesses who were seated inside the vehicle where the shooting took place. Both witnesses testified that Victim never pulled a weapon and was shot by Jones in a robbery involving drugs. The jury found Jones guilty of second-degree murder and ACA. The trial court sentenced Jones as a prior and persistent offender to respective prison terms of life and ten years, with the sentences to run concurrently. This Court affirmed Jones’ convictions and sentences on direct appeal. State v. Jones , 553 S.W.3d 909 (Mo. App. 2018).

Jones filed a pro se Rule 29.15 motion. Thereafter, appointed counsel filed an amended motion.³ The amended motion alleged that Jones’ trial counsel provided ineffective assistance of counsel in three respects. The first two claims alleged ineffective assistance for failing "to investigate and call a neuropsychologist to testify": (1) at trial, "in support of [Jones’] self-defense claim that [he] suffered from brain damage at the time of the offense"; and (2) at sentencing, "in mitigation" that Jones was "brain damaged." The third claim alleged ineffective assistance for failing "to object, move for a mistrial, and adequately preserve issues for appeal ... after the court removed a juror from the jury during the State's case in chief and then informed the rest of the jury why the juror was removed." The trial court revealed that the juror had sent a note "indicating that she knew the mother of the witness" who had just testified.

The motion court judge, who also had been the trial judge, held an evidentiary hearing on the motion. Two witnesses testified. A neuropsychologist, Dr. Robert Heilbronner (Dr. Heilbronner), testified that Jones’ testing results and medical records supported a diagnosis of neuropsychological impairment or brain damage. Jones’ trial counsel, Russell Dempsey (Dempsey), also testified. Thereafter, the motion court issued findings of fact and conclusions of law denying Jones’ amended motion for post-conviction relief. This appeal followed. Presenting three points, Jones contends the motion court clearly erred in denying each of his three claims.

In each point, Jones contends he received ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the movant must satisfy a two-prong test. Zink , 278 S.W.3d at 175. First, the movant must "show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id . at 689, 104 S.Ct. 2052. Second, the movant must show that trial counsel's failure prejudiced him. Id . at 687, 104 S.Ct. 2052. To satisfy the prejudice prong under the Strickland test, movant is required to show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Anderson v. State , 196 S.W.3d 28, 33 (Mo. banc 2006). Both of these prongs must be proven to obtain relief based upon ineffective assistance of counsel. Zink , 278 S.W.3d at 175. Movant must overcome a strong presumption that counsel's conduct was reasonable and effective. Id . at 176. Additional facts will be included below as we address Jones’ three points on appeal.

Point 1

Point 1 contends the motion court clearly erred in denying Jones’ claim that his trial counsel was ineffective for failing to call Dr. Heilbronner as a witness during the guilt phase of the trial. To prevail on a claim of ineffective assistance of counsel for failure to call a witness, the following must be proven: (1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness’ testimony would have produced a viable defense. Worthington v. State , 166 S.W.3d 566, 577 (Mo. banc 2005). "Counsel's decision to not call a witness is presumptively a matter of trial strategy and will not support a claim of ineffective assistance of counsel unless the defendant clearly establishes otherwise." Williams , 168 S.W.3d at 441. The following facts are relevant to this point.

At trial, Jones testified that he shot Victim in self-defense after Victim pulled what looked like a real gun. In support of this self-defense theory, Dempsey adduced the following additional evidence: (1) Jones’ testimony that, after the shooting, he found in his car a "CO2 cartridge BB gun" and a black backpack; (2) testimony from Victim's friend that Victim possessed a black backpack and a BB gun, and that Victim's friend had seen Victim with the BB gun tucked in his waistband earlier on the day of the shooting; and (3) the items an officer found in Jones’ car included a black backpack containing two or three dozen BBs, more BBs under the back seat, and two CO2 air cartridges, which are typically used to power a BB gun. The gun, however, was never found.

At the motion hearing, Dempsey testified that he discussed possible trial strategies with Jones and determined the best strategy was to argue self-defense. This strategy required evidence that Jones had "a reasonable belief" that such force was necessary to defend himself from what he believed was "the imminent use of unlawful force." Dempsey and Jones also discussed retaining a neuropsychologist, but Dempsey was concerned that introducing evidence of brain damage would "come into conflict with our argument of self-defense." According to Dempsey, he consistently argued "straight self-defense" and only once mentioned "imperfect self-defense" in reference to a lesser-included charge of involuntary manslaughter.⁴

The motion court found that Dempsey's reasons for not calling a neuropsychologist as a witness were "compelling" because such testimony "would have been in direct conflict with showing [Jones] made a reasoned decision to use deadly force." The motion court concluded that Dempsey's decision to not call a neuropsychologist was "sound trial strategy" and that Jones also failed to demonstrate prejudice.

Jones’ first point contends Dempsey was "ineffective for failing to call [Dr. Heilbronner] as a witness during the guilt phase of the trial" because his testimony "would have supported [Jones’] argument at trial that he committed ‘imperfect self-defense.’ Furthermore, [Jones] was prejudiced by this failure." We disagree.

Jones failed to overcome the presumption that Dempsey's decision to not call Dr. Heilbronner or any neuropsychologist was reasonable trial strategy. See Williams , 168 S.W.3d at 441 (counsel's "decision to not call a witness is presumptively a matter of trial strategy"); see also Zink , 278 S.W.3d at 176 (movant "must overcome a strong presumption that counsel's conduct was reasonable and effective"). Although Jones argues that a neuropsychologist's testimony would have supported an argument that Jones acted in "imperfect self-defense," Dempsey testified at the evidentiary hearing that the chosen trial strategy was to argue "straight self-defense," not imperfect self-defense. In support of the straight self-defense theory, Dempsey presented evidence from various sources that the BB gun existed and that Victim had it with him on the night of the shooting. "It is not ineffective assistance of counsel to pursue one reasonable trial strategy to the exclusion of another reasonable trial strategy." Anderson , 196 S.W.3d at 33 ; Barton v. State , 432 S.W.3d 741, 749 (Mo. banc 2014).

Moreover, a neuropsychologist's testimony would have undermined the straight self-defense strategy. Self-defense requires a reasonable belief that the force used was necessary. See § 563.031.1; Hendrix v. State , 369 S.W.3d 93, 98 (Mo. App. 2012). The...