Potter v. State

679 S.W.3d 50

Christopher J. POTTER, Appellant,

v.STATE of Missouri, Respondent.

No. ED 110877

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: September 19, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied October 30, 2023

Application for Transfer Denied December 19, 2023

Appeal from the Circuit Court of St. Charles County, 2111-CC00505, Honorable Rebeca M. Navarro-McKelvey, Judge

FOR APPELLANT: Stephanie A. Hoeplinger, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: Andrew Bailey, Nathan J. Aquino, P.O. Box 899, Jefferson City, Missouri 65102.

Thomas C. Clark, II, P.J., James M. Dowd, J., and John P. Torbitzky, J.

OPINION

James M. Dowd, Judge

In this ineffective assistance of counsel case, Christopher Potter appeals the denial of his Rule 29.15¹ motion for post-conviction relief following an evidentiary hearing. In the underlying criminal case, which we affirmed on direct appeal, Potter was convicted of eight counts of first-degree assault arising from a crime spree in which he targeted motorists on the roads of St. Charles County by ramming into them causing the victims’ vehicles to lose control and some to leave the roadway.² He now claims the motion court clearly erred in denying his motion because (1) trial counsel was ineffective for failing to object to an improper hypothetical question by the State during voir dire which sought a commitment from the panel on the issue of intent; (2) appellate counsel was ineffective for failing to raise that voir dire issue on appeal; and (3) trial counsel was also ineffective for failing to adequately impeach a witness – Potter’s friend who was in his vehicle for some of the assaults – with a prior inconsistent statement. We affirm.

Background

Potter was initially charged with thirteen counts of first-degree assault, one count of first-degree property damage, and one count of fleeing the scene of a motor vehicle accident. These charges arose after multiple motorists reported that between August 2, 2015 and July 5, 2016, each was victimized on the roads of St. Charles County by a large white pickup truck, which crashed into their vehicles forcing most of the victims’ vehicles off the road. The State alleged that Potter was the culprit and that he thereby intentionally sought to injure the victims.

During voir dire, the State asked the venire panel to opine as to what purpose a hypothetical individual might have in throwing a bowling ball from a highway overpass onto traffic below. Venire panel responses included: to cause harm to or injure someone, to dispose of the ball, to conduct an experiment, to cause damage, or as a demonstration of pure stupidity or ignorance. The State then asked if such act demonstrated an intent to injure. The State ended this inquiry by asking if anyone did not agree with the statement that a person who throws a bowling ball off an overpass intends to cause potentially life-threatening injury. After no one responded, the prosecutor stated that he assumed the entire panel agreed that dropping a bowling ball from an overpass could cause serious, life-threatening damage. Later, the State used the bowling ball hypothetical in closing argument to reinforce its assertion that Potter’s conduct demonstrated an intent to cause serious injury.

During trial, the State called twenty-five witnesses, including police officers who responded to the various accident scenes, victims, crime lab technicians, Potter’s ex-girlfriend, and Potter’s friend who was in the white truck during some of the incidents. Seven drivers and three passengers who were victims of the incidents testified. Six victims described being closely followed by a large white truck and being hit from behind on the rear driver’s side of their vehicle causing them to lose control. The seventh victim testified that he was tailgated and then hit from behind, but was able to maintain control of his vehicle and escape. The white truck fled each scene.

The jury also saw a videotape of Potter’s police interview in which he admitted that he hit two vehicles "by accident." Sixty-four paint samples were taken from Potter’s truck and the victims’ vehicles. A crime lab technician from the Missouri Highway Patrol matched at least three of the victims’ vehicles to Potter’s truck as a result of her analysis of the paint samples that had transferred between Potter’s truck and five of the victims’ vehicles.

Ultimately, the State submitted eight first-degree assault charges to the jury which found Potter guilty on each. The trial court sentenced him to twenty-one years in prison. Potter appealed, and this Court affirmed his convictions in an order issued pursuant to Rule 30.25(b). Potter then sought the post-conviction relief under Rule 29.15 that is the subject of this appeal.

At the evidentiary hearing, trial counsel testified regarding the State’s hypothetical bowling ball question during voir dire. He said he was not aware that it is improper to seek commitments during voir dire. He believed the prosecutor’s question was merely an attempt to help the jury gain a better understanding of the law generally. He admitted that intent was a key issue at trial. In fact, he requested instructions for assault second and assault third because he did not believe the State could prove that Potter intended to cause injury.

As for the claim that trial counsel failed to properly impeach Potter’s friend, trial counsel said that after the friend told the jury that he was not laughing while Potter was forcing vehicles off the road, counsel sought to impeach him with the videotape of his police interview in which he stated he was laughing during the crimes. The trial court denied this impeachment. Nevertheless, counsel was able to reveal to the jury the friend’s inconsistent story during the cross-examination of the detective who conducted the video interview.

For her part, appellate counsel testified (1) that she read the entire trial transcript, including voir dire, before filing Potter’s brief; (2) that she did not believe the State’s hypothetical bowling ball question was improperly seeking the jury’s commitment to its theory regarding Potter’s intent; (3) that nevertheless she could have "missed" the issue. Regardless, appellate counsel noted that since trial counsel failed to object, plain error review on appeal would have made the issue difficult to win on appeal.

On June 30, 2022, the motion court issued its findings of fact and conclusions of law denying Potter’s post-conviction motion. This appeal follows.

Standard of Review

[1–4] We review a denial of a Rule 29.15 motion for post-conviction relief only to determine whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Swallow v. State, 398 S.W.3d 1, 10 (Mo. banc 2013). Findings and conclusions are clearly erroneous only when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made. Swallow, 398 S.W.3d at 3. The motion court’s findings should be upheld if they are sustainable on any grounds. Id. And we presume that the motion court’s findings are correct, including the motion court’s determinations as to the credibility of witnesses. Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019).

To be entitled to post-conviction relief for ineffective assistance of counsel, the movant must meet the two-pronged Strickland test. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Anderson, v. State, 564 S.W.3d 592, 600 (Mo. banc 2018). The movant must prove by a preponderance of the evidence: (1) that counsel’s performance did not conform to the degree of skill and diligence of a reasonably competent attorney; and (2) that as a result thereof, the movant was prejudiced. Anderson, 564 S.W.3d at 600. This standard applies to both trial counsel and appellate counsel. Hudson v. State, 482 S.W.3d 883, 889 (Mo. App. E.D. 2016).

To succeed on the performance prong, the movant must overcome a strong presumption that counsel’s performance was reasonable and effective by showing specific acts or omissions that, under the circumstances, fell outside the wide range of effective assistance. Id. To satisfy the prejudice prong, the movant must show that there is a reasonable probability that, but for counsel’s alleged errors, the outcome would have been different. Id. If the movant fails to establish either prong, "then we need not consider the other and the claim of ineffective assistance must fail." Roberts v. State, 535 S.W.3d 789, 797 (Mo. App. E.D. 2017).

Discussion

I.

Potter first asserts that the motion court clearly erred in denying his motion for post-conviction relief because he proved by a preponderance of the evidence that trial counsel was ineffective for failing to object to the State’s hypothetical voir dire question, which he alleges sought the jury’s commitment on the key issue of Potter’s intent. Although the bowling ball hypothetical may have been an improper request for a jury commitment, we find that the motion court did not err because Potter failed to prevail on the prejudice prong of the Strickland analysis in light of the overwhelming evidence of his guilt.

[5–9] "The purpose of voir dire is to discover bias or prejudice in order to select a fair and impartial jury." State v. Celian, 613 S.W.3d 380, 385 (Mo. App. E.D. 2020) (citing State v. Clark, 981 S.W.2d 143,146 (Mo. banc 1998)). Voir dire is a tool used to discover bias, not to create bias. State v. Whitt, 461 S.W.3d 32, 39 (Mo. App. E.D. 2015). "[W]hen the inquiry includes questions phrased or framed in such manner that they require the one answering to speculate on his own reaction to such an extent that he tends to feel obligated to react in that manner, prejudice can be created." Clark, 981 S.W.2d at 146-47. "[P]hrasing a voir dire question in such a manner which pre-conditions the panel members’ minds...