Phillips v. State

679 S.W.3d 43

Jonas PHILLIPS, Appellant,

v.STATE of Missouri, Respondent.

ED 110785

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: September 19, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied November 13, 2023

Application for Transfer Denied December 19, 2023

Appeal from the Circuit Court of Cape Girardeau County, 20CG-CC00274, Honorable Benjamin F. Lewis, Judge

FOR APPELLANT: Carol Jansen, 1000 W. Nifong Building 7, Suite 100, Columbia, MO 65203.

FOR RESPONDENT: Andrew Bailey, Attorney General, Richard A. Starnes, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102.

Renée Hardin-Tammons, Judge

Jonas Phillips appeals the judgment denying his Rule 29.15¹ motion for postconviction relief following an evidentiary hearing. In his first point on appeal, Phillips claims that counsel was ineffective for failing to make an opening statement. In his second point, he claims that counsel was ineffective for failing to cross-examine the state’s witnesses on their motivation to lie to avoid criminal liability. Because the motion court did not clearly err by denying relief, we affirm the judgment.

Factual and Procedural Background

Following a jury trial, the circuit court convicted Phillips of second-degree murder, first-degree assault, and armed criminal action. This Court affirmed the judgment. State v. Phillips, 598 S.W.3d 929 (Mo. App. E.D. 2020).

The evidence at tidal showed that Phillips and two other individuals, D.V. and E.C., drove to an apartment to complete a drug deal. The daughter of the apartment owner ("Victim’s Sister") met them at the door. The owner of the apartment ("Victim’s Mother") told Phillips and E.C. to leave. D.V. went inside, and Phillips and E.C. went back to the car.

While D.V. was in the apartment, he had an argument with the apartment owner’s son ("Victim") and several of Victim’s friends. D.V. testified that they tried to rob him and that he believed Phillips could have heard yelling as he waited outside. The men chased D.V. from the apartment. Shortly thereafter, Phillips opened fire, fatally wounding Victim and injuring one of Victim’s friends. D.V. testified that he did not think Phillips had any reason to shoot at the men who were chasing him.

After his direct appeal, Phillips timely filed pro se and amended motions for postconviction relief pursuant to Rule 29.15. The motion court entered a judgment with findings of fact and conclusions of law denying relief. Phillips appeals.

Standard of Review

[1–4] Rule 29.15(k) limits appellate review of a judgment denying postconviction relief to determining whether the circuit court’s findings and conclusions are clearly erroneous. McLemore v. State, 635 S.W.3d 554, 559 (Mo. banc 2021). A judgment denying postconviction relief is "clearly erroneous when, upon review of the complete record, there is a definite and firm impression that a mistake has been made." Hefley v. State, 626 S.W.3d 244, 248 (Mo. banc 2021) (internal quotation omitted). "The motion court’s findings are presumed correct," and "[t]his Court defers to the motion court’s superior opportunity to judge the credibility of witnesses." Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016) (internal quotation omitted). A judgment denying post-conviction relief may be affirmed on any ground supported by the record. Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013).

Analysis

To prevail on a motion for postconviction relief alleging ineffective assistance of counsel, the movant must prove by a preponderance of the evidence that counsel’s deficient performance resulted in prejudice. Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see also Rule 29.15(i) (the movant bears the burden of proving all claims for relief by a preponderance of the evidence). Deficient performance occurs when counsel’s representation falls "below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The movant is prejudiced when "there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "If the defendant fails to satisfy either prong, we need not consider the other." Staten v. State, 624 S.W.3d 748, 750 (Mo. banc 2021) (internal quotation omitted).

Point 1: Opening Statement

[5, 6] Phillips asserts that the motion court clearly erred by denying relief on his claim trial counsel was ineffective for failing to make an opening statement. He argues that trial counsel had no strategic basis for waiving an opening statement and that State v. Thompson, 68 S.W.3d 393, 395 (Mo. banc 2002), is "controlling precedent," holding an inadequate opening statement is prejudicial when it fails to provide the jury with context for the evidence presented.²

Unlike Phillips’s postconviction ineffective assistance of counsel claim, Thompson involved a direct appeal applying the abuse of discretion standard particular to a preserved claim of trial court error. On the same day the Court issued Thompson, the Court also issued Deck v. State, 68 S.W.3d 418 (Mo. banc 2002), which explained "[t]he standard for finding prejudice in the context of preserved error is lower than the standard for finding error under Strickland, and both are lower than the plain error standard." Id. at 427, n.5.³ Because the abuse of discretion standard applied in Thompson is less stringent than the standard for Strickland prejudice, Phillips’s argument that Thompson is "controlling precedent" is without merit. The disposition of Phillips’s claim turns on whether he alleged and proved facts showing he was prejudiced by the lack of an opening statement.

Phillips alleged that trial counsel was ineffective for failing to make an opening statement because:

At trial, Counsel was offered the opportunity to provide an opening statement under Missouri Supreme Court Rule 27.02. Trial Counsel reserved the right to do so, and when given a second opportunity to give an opening statement at the close of State’s evidence, failed to do so. An opening statement is a critical aspect of a jury trial in that it serves multiple purposes: an opening statement provides the first impression of the case and shapes the impressions of the jury, present a theme or theory of the case in an effective and persuasive manner, and to tell a defendant’s story without argument. Five Tips of Engaging Opening Statement, American Bar Association Journal, October 30, 2015.

Failing to provide an opening statement effectively accepts the State's contention of evidence as true, fails to provide a theme and roadmap as to how a jury should arrive at the verdict suggested by Counsel, and makes no attempt to address bad facts that serve as roadblocks to a desired verdict. With respect to Movant’s trial, there is absolutely no justifiable strategy to wholly exclude an opening statement in a murder case. Had trial Counsel acted as a reasonably competent attorney would under similar circumstances, a reasonable probability would have existed of a different result at Movant’s jury trial.

(Emphasis added).

[7] While Phillips alleged that trial counsel did not give an opening statement in his murder trial, the amended motion is devoid of any specific factual allegations explaining why he was prejudiced by the lack of an opening statement. Instead, Phillips’s claim is premised on legal conclusions regarding the role of an opening statement followed by a conclusory recitation of the Strickland prejudice standard. These general, conclusory allegations are insufficient to support a claim of ineffective assistance of counsel. McLemore, 635 SW.3d at 563.⁴ "An opening statement is not evidence," State v. McFadden, 369 S.W.3d 727, 747 (Mo. banc 2012).

Also, Phillips failed to introduce evidence showing how the lack of an opening statement was prejudicial. At the evidentiary hearing, trial counsel testified that the defense is not required to make an opening statement, but that it "can be" helpful. Trial counsel testified that he reserved the right to make an opening statement, but acknowledged that he mistakenly failed to do so and instead proceeded with his direct examination of D.V. When postconviction counsel asked if the failure to make an opening statement deprived the jury of a concise statement of the theory of the defense, trial counsel testified, "I mean the closing argument was about 15 minutes after that happened so I mean I can’t really speculate to what the jury is thinking at that point[.]" Further, on cross-examination the following exchange occurred:

[State’s Attorney]: In this particular case, in your opinion, is there anything that was lacking in your defense by not giving an opening statement?

[Trial Counsel]: Not particularly, no.

[State’s Attorney]: Meaning basically do you believe that the defendant was in any way prejudiced by not giving a brief opening statement?

[Trial Counsel]: No.

The record shows that postconviction counsel asked general questions eliciting general responses which do not support Phillips’s specific arguments on appeal. Phillips’s "[c]onclusory post-conviction allegations of prejudice without specific evidence showing how the alleged deficient performance would have led to a likely different result are insufficient to establish ineffective assistance of counsel." Butler v. State, 557 S.W.3d 427, 437 (Mo. App. W.D. 2018) (affirming the denial of postconviction relief following an evidentiary hearing); see also Shockley, 579 S.W.3d at 899 (holding conclusory allegations of prejudice "cannot be remedied by the presentation of evidence and refinement of a claim on appeal").

Finally, even granting Phillips the benefit of the doubt regarding pleading deficiencies and evidentiary omissions, the record shows that the motion court did not clearly err by denying relief. Trial counsel testified that nothing was...