Reed v. State

649 S.W.3d 86

Tymon REED, Appellant,

v.STATE of Missouri, Respondent.

WD 84307

Missouri Court of Appeals, Western District.

OPINION FILED: April 26, 2022

Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2022

Application for Transfer Denied August 30, 2022

Kathryn Merwald, Assistant Public Defender, Kansas City, MO, Attorney for Appellant.

Eric S. Schmitt, Attorney General, and Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Before Division Two: Karen King Mitchell, Presiding Judge, and Edward R. Ardini, Jr., and Thomas N. Chapman, Judges

Karen King Mitchell, Presiding Judge

Tymon Reed appeals, following an evidentiary hearing, the denial of his Rule 29.15¹ motion for post-conviction relief. Reed raises two points on appeal: (1) he claims trial counsel was ineffective for failing to subpoena and call two jurors from his trial as mitigation witnesses at his sentencing hearing and (2) he claims trial counsel was ineffective for failing to argue imperfect self-defense to the jurors during guilt-phase closing argument to support a verdict for involuntary manslaughter. Finding no error, we affirm.

Background²

On the afternoon of September 19, 2016, Victim Javon Reilly was walking home with some friends from Van Horn High School in Independence, Missouri, when Reed and another man named Brandon Long approached, looking for Victim's friend, Owen Ogo. According to Reed, a friend of Ogo's had robbed Reed during a marijuana sale, and Reed wished to discuss the matter with Ogo. Victim and one of his friends attempted to reach Ogo, but both were unsuccessful. Victim and Reed then began arguing. Reed suggested they all start walking down Home Street, and Victim handed his backpack to his friend Ni'Kia Porter because it seemed that Victim and Reed were going to get into a physical fight. Porter took out her cell phone and began recording in hopes of witnessing a fight that could be posted online.

At one point, Victim stopped walking down the street with Reed, and when Reed insisted they continue farther down the road, Victim refused. Reed then said, "You ain't walkin’ no further?" and Victim responded, "Nah." Reed said, "For real?" and Victim responded, "Yeah." Reed verified, "You ain't movin’?" and Victim reiterated, "Nah, I ain't movin’." Reed said, "Alright, say no more." Reed then approached Victim with a gun drawn and chambered a round. Reed pointed the gun at Victim's feet and told Victim to "Move it, B." Victim jumped back, and Reed then pointed the gun at Victim's stomach. Victim initially put his hands up, but he then tried to grab the gun and lost his footing in the process. Reed maintained control of the gun, and Victim jumped up and began to run away. As Victim ran, Reed fired nine shots at Victim, striking Victim in the back and side with six of the shots, one of which was fatal.

After learning Reed's identity, police were able to track his phone, and they arrested him at a gas station the following day. Upon Reed's arrest, officers conducted an inventory search of his car. In the trunk, they located a high-point firearm with an empty magazine and clothing matching what Reed was wearing in the video on Porter's cell phone.

A grand jury indicted Reed for one count of first-degree murder and one count of armed criminal action. At trial, following Reed's request, the jury was instructed on the lesser-included offenses of second-degree murder and voluntary manslaughter. And, pursuant to the State's request, the jury was instructed on involuntary manslaughter. The jury ultimately found Reed guilty of second-degree murder and armed criminal action for which the jury recommended imprisonment for terms of seventeen and three years, respectively. At the sentencing hearing, Reed's counsel sought to introduce an email from juror M.M., but the State argued that the email amounted to an impermissible attempt to impeach the verdict, and the trial court agreed and refused to accept it. The trial court then followed the jury's recommendation and sentenced Reed to concurrent terms of seventeen and three years’ imprisonment.

This court affirmed Reed's convictions and sentences in a memorandum decision on direct appeal. State v. Reed , 586 S.W.3d 303 (Mo. App. W.D. 2019). Thereafter, Reed timely filed a pro se Rule 29.15 motion for post-conviction relief. Appointed counsel filed an amended motion, raising two claims of ineffective assistance of trial counsel; Reed claimed that trial counsel was ineffective in (1) failing to subpoena and call jurors M.M. and S.W. to testify in mitigation at his sentencing hearing and (2) failing to argue imperfect self-defense to the jury during the guilt phase. The motion court held an evidentiary hearing wherein it received testimony from trial counsel, Reed, and juror S.W.; the motion court later received deposition testimony from juror M.M. Following the hearing, the motion court denied Reed's Rule 29.15 motion, finding that counsel was not ineffective insofar as the testimony of the jurors was impermissible and counsel's choice of defense was a matter of reasonable trial strategy. Reed appeals.

Standard of Review

"Our review of the motion court's denial of a Rule 29.15 post-conviction motion is ‘limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.’ " Shaw v. State , 636 S.W.3d 596, 599 (Mo. App. W.D. 2021) (quoting Rule 29.15(k)). "A judgment is clearly erroneous when, in light of the entire record, [we are] left with the definite and firm impression that a mistake has been made." Id. (quoting Webber v. State , 628 S.W.3d 766, 770 (Mo. App. W.D. 2021) ).

Analysis

Reed raises two claims of ineffective assistance; first, he argues that counsel was ineffective in failing to subpoena and call as witnesses jurors M.M. and S.W. to testify in mitigation at his sentencing hearing and, second, that counsel was ineffective for failing to argue imperfect self-defense at the guilt phase of his trial.

To demonstrate ineffective assistance of counsel, a movant must prove, by a preponderance of the evidence, that "(1) his ... counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation; and (2) he ... was prejudiced by that failure." Id. at 600 (quoting Webber , 628 S.W.3d at 770 (internal quotations omitted)). The performance prong "requires the movant to overcome the strong presumption that his trial counsel's actions were reasonable and effective." Id. (quoting Webber , 628 S.W.3d at 770 ). The prejudice prong "requires the movant to establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Webber , 628 S.W.3d at 770 ) (internal quotations omitted)). If a movant fails to prove either prong, "we need not address the other." Id.

I. Trial counsel was not ineffective in failing to introduce inadmissible evidence.

In his first point, Reed argues that trial counsel was ineffective in failing to subpoena and call as witnesses jurors M.M. and S.W. to testify at his sentencing hearing. The motion court rejected this claim on the ground that jurors may not impeach the verdict. Reed claims that, because the jurors’ testimony would not have impeached the verdict, the motion court's judgment should be reversed. We disagree.

"Missouri law has long held that a juror may not impeach a unanimous, unambiguous verdict after it is rendered." Fonville v. State , 563 S.W.3d 794, 800 (Mo. App. W.D. 2018) (quoting State v. West , 425 S.W.3d 151, 155 (Mo. App. W.D. 2014) ) (internal quotations omitted). "Use of information obtained from jurors after a trial is limited and juror testimony is excluded from consideration on post-judgment matters."³ State v. Harris , 477 S.W.3d 131, 147 (Mo. App. E.D. 2015). No juror will be heard to impeach his or her own verdict or the verdict of a jury of which he or she was a member. State v. Harding , 734 S.W.2d 871, 875 (Mo. App. E.D. 1987).

Here, M.M. and S.W. both served on Reed's jury. And both jurors acknowledged that the jury's sentencing recommendation of seventeen years for murder and three years for armed criminal action was unanimous. Yet both jurors indicated that, if called to testify at sentencing, they would have advocated for a lesser sentence; M.M. indicated she thought ten years was appropriate, and S.W. indicated that there were "some problems at the sentencing," and she thought they had agreed to fifteen years. This proposed testimony is plainly directed at impeaching the unanimous and unambiguous sentencing verdict.

Reed argues that "the testimony of M.M. and S.W. was not being presented to call into question the jury's sentencing verdict, but instead to support the trial court exercising its statutory authority to reduce the jury's recommended sentence." But a juror's testimony constitutes impeachment if it "declar[es] ‘an intent different from that expressed in the verdict returned in open court.’ " Songer v. Brittain , 272 S.W.2d 16, 22 (Mo. App. 1954) (quoting State ex rel. Rogers v. Gage Bros. & Co. , 52 Mo. App. 464, 470 (1893) ). "[A]ny testimony regarding the thought process or feelings of any juror violates the rule and is inadmissible to prove juror misconduct." Smith v. Brown & Williamson Tobacco Corp. , 410 S.W.3d 623, 643 (Mo. banc 2013). "The law is now well settled that the [testimony] of jurors may be received in support of and to uphold the verdict, though not to contradict or destroy it." State v. Westmoreland , 126 S.W.2d 202, 204 (Mo. 1939) (quoting Jordan v. St. Joseph Ry., Light, Heat & Power Co. , 335 Mo. 319, 73 S.W.2d 205, 210 (1934) ).

The jurors’ proposed testimony would have served only to contradict or undermine the jury's recommended sentences by advocating that the court enter something less than the seventeen and three years unanimously agreed upon. Therefore, it was...