Libeer v. State

686 S.W.3d 309

Victor R. LIBEER, Appellant,

v.STATE of Missouri, Respondent.

WD 85892

Missouri Court of Appeals, Western District.

OPINION FILED: March 5, 2024

Appeal from the Circuit Court of Jackson County, Missouri, The Honorable James F. Kanatzar, Judge

Rosemary E. Percival, District Defender, Area 52, Kansas City, MO, Attorney for Appellant.

Andrew Bailey, Attorney General, and Gregory L. Barnes, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Before Division Three: Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and W. Douglas Thomson, Judges

Mark D. Pfeiffer, Presiding Judge

Victor Libeer ("Libeer") appeals from the judgment entered by the Circuit Court of Jackson County, Missouri ("motion court"), denying, after an evidentiary hearing, his motion for post-conviction relief ("PCR") pursuant to Rule 29.15. We affirm.

Factual and Procedural History¹

[1] In 2012, Libeer’s then sixteen-year-old biological daughter, Victim, learned she was pregnant.² After she gave birth in February 2013, she initially refused to dis- close the father’s identity. A paternity test identified³ Libeer as the father. Libeer pleaded guilty to incest and second-degree statutory rape in Jasper County. Authorities in Jackson County then investigated potential instances of earlier abuse when Victim lived with Libeer in Blue Springs. Over the course of several therapy sessions, Victim revealed that Libeer first began having sexual intercourse with her when she was eleven years old, and a caseworker assisted Victim in submitting a police report to Jackson County. Libeer was charged with two counts of first-degree statutory rape in Jackson County for incidents occurring in 2007 and 2008. The case proceeded to trial in February 2019.

During jury selection for the trial, the State questioned the venirepersons on their ability to presume Libeer innocent: "I’d like to begin with the concept that the defendant as he sits here today is presumed innocent. There’s no inference of guilt because the defendant has been charged with a crime. Is there anyone who does not agree with that statement?" No venireperson objected. Libeer’s trial counsel followed up with the panel on the issue during his questioning. After explaining the presumption of innocence—noting in part that "[Libeer] remains presumed innocent throughout this trial unless and until, upon your deliberations upon the evidence, you find him guilty beyond a reasonable doubt"—Libeer’s trial counsel asked: "Is there anyone that is considering [Libeer] guilty right now or not presuming him innocent?" Again, no venirepersons raised their hands.⁴ Libeer’s trial counsel then questioned the panel on the burden of proof and Libeer’s right to not testify before questioning them on Libeer’s prior convictions from Jasper County:

So one of the big issues in this case that hasn’t been addressed yet at all is that in September of 2015, Victor Libeer pled guilty to statutory rape in the second degree and incest in Jasper County, Missouri, which is in Carthage. This happened in Carthage. He pled guilty to the same, to basically the same exact conduct with the same victim that is alleged in this case. Okay?

….

So with that information that is undisputed, it’s a fact in this case, with that new information I need to go, basically go through almost all the same questions. Does that change your perspective on this case?

The State’s attorney objected, and at a bench conference, the trial court overruled the objection as premature and instructed Libeer’s trial counsel on the proper scope of the questioning. Libeer’s trial counsel resumed his questioning:

I want to make sure I get more specific with you. We talked about this presumption of innocence. Everyone, most everyone said they are presuming Mr. Libeer innocent at this time, they can follow the Court’s instructions to continue to presume him innocent throughout this trial, so this is what I want to double back to.

Knowing that Mr. Libeer has been convicted of the same conduct with the same victim, are you going to be able to follow the Court’s instructions to pre-sume him innocent throughout the course of this trial?

Is there anyone that, knowing that, is not going to be able to presume him innocent throughout[?]

The first venireperson to respond, Venireperson 14, stated: "There’s no way." The next venireperson, Venireperson 16, responded: "There would be a strong bias going in after hearing that." Libeer’s trial counsel then clarified:

So you would have a strong bias going in. You would—I want to clarify. You can have a bias. You can still be fair and impartial with a bias, right? So what I want to know is would you be able to follow the Court’s instructions to presume him innocent throughout the trial, knowing that information?

Upon this clarification, Venireperson 16 agreed she could follow the trial court’s instructions.⁵ Each of the next ten venirepersons expressed some level of difficulty presuming Libeer’s innocence. Libeer’s trial counsel prompted each of them to specify whether this difficulty would prevent them from following the trial court’s instructions, and nine of them indicated they could not follow the trial court’s instructions. The lone venireperson who could agree to follow the trial court’s instructions, Venireperson 65,⁶ noted the difficulty in doing so, prompting Libeer’s trial counsel to make a general admonishment to the whole panel:

VENIREPERSON 65: It does it make [sic] difficult. It makes it difficult for your client, in my mind.

TRIAL COUNSEL: So it would create some issues for you, but you could follow the instructions and presume him innocent?

VENIREPERSON 65: Yes.

TRIAL COUNSEL: And that’s what I’m getting at here. Yeah, difficult. Nobody is saying it wouldn’t be difficult. What I want to know is if it’s more than difficult, something you can’t do. Anybody else?

After those ten venirepersons, the questioning reached Venireperson 24:

TRIAL COUNSEL: I have this whole section over here. I don’t want to miss anybody. Number 24?

VENIREPERSON 24: I had [my hand] up. I didn’t want be [sic] I’m wishy-washy. You clarified a little better. It would definitely make it difficult. Could I still follow the instructions? Yes.

TRIAL COUNSEL: You could follow the instructions[?]

VENIREPERSON 24: But it would influence. It would make it difficult.

TRIAL COUNSEL: Sure. Got you.

Venireperson 24 did not answer any other questions during voir dire and was not challenged for cause. He ultimately served on the jury, which convicted Libeer on both counts of first-degree statutory rape. The trial court sentenced Libeer to two life terms of imprisonment to be served consecutively with each other and the prison sentence imposed in Jasper County. Libeer timely appealed.

In his direct appeal, Libeer argued a different juror, Venireperson 39, should have been struck for cause sua sponte because she was uncertain of her ability to presume Libeer innocent after hearing about his prior convictions. In rejecting this argument, we found that the State successfully rehabilitated Venireperson 39 by securing her unequivocal affirmation that she would not convict Libeer unless the State met its burden of proof based solely on the evidence presented at trial. We affirmed Libeer’s convictions.

Libeer then timely filed this PGR motion, asserting in relevant part that Venireperson 24’s proclaimed difficulty in presuming Libeer’s innocence after hearing about Libeer’s prior convictions rendered Venireperson 24 unqualified to serve on the jury and arguing that his trial counsel was ineffective for failing to seek to strike Venireperson 24 for cause. An evidentiary hearing was held on February 16, 2022, and the motion court entered an order denying the PGR motion on December 12, 2022. This appeal followed.

Standard of Review

[2, 3] In reviewing the overruling of a motion for post-conviction relief, the motion court’s ruling is presumed correct. A motion court’s judgment will be overturned only when either its findings of fact or its conclusions of law are clearly erroneous. To overturn, the ruling must leave the appellate court with a definite and firm impression that a mistake has been made.

McLaughlin v. State, 378 S.W.3d 328, 336-37 (Mo. banc 2012) (citations omitted) (internal quotation marks omitted).

Analysis

In his sole point on appeal, Libeer argues the motion court erred in denying his claim that his trial counsel was ineffective for failing to request Venireperson 24 be stricken for cause.

[4–6] "To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test." Watson v. State, 520 S.W.3d 423, 435 (Mo. banc 2017) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under Strickland, the movant must demonstrate: "(1) his trial counsel failed to exercise the level of skill and diligence that a reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure." Id. (internal quotation marks omitted) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). If movant fails to prove either prong, relief cannot be granted. Hecker v. State, 677 S.W.3d 507, 512 (Mo. banc 2023). And if the movant fails to satisfy one prong, we need not address the other. Staten v. State, 624 S.W.3d 748, 750 (Mo. banc 2021); Shores v. State, 674 S.W.3d 127, 133 (Mo. App. W.D. 2023).

[7–11] Generally, the decision to strike a venireperson is a matter of trial strategy which cannot give rise to an ineffective assistance of counsel claim as long as the decision is reasonable. Proudie v. State, 644 S.W.3d 41, 50 (Mo. App. E.D. 2022) (citing Thompson v. State, 583 S.W.3d 529, 533 (Mo. App. W.D. 2019)); Pearson v. State, 280 S.W.3d 640, 646 (Mo. App. W.D. 2009) (Where "the record does not show [the challenged venireperson] to have been an unqualified juror,...