Thompson v. State

606 S.W.3d 679

Charles T. THOMPSON, Appellant,

v.STATE of Missouri, Respondent.

WD 82893

Missouri Court of Appeals, Western District.

OPINION FILED: August 25, 2020

Tyler P. Coyle, Assistant State Public Defender, Columbia, MO, Attorney for Appellant.

Eric S. Schmitt, Attorney General, and Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Before Division Two: Karen King Mitchell, Presiding Judge, and Anthony Rex Gabbert and W. Douglas Thomson, Judges

Karen King Mitchell, Presiding Judge

Charles Thompson appeals, following an evidentiary hearing, the denial of his Rule 29.15 motion for post-conviction relief.¹ Thompson raises two points on appeal. He argues that trial counsel provided ineffective assistance by failing to review State's Exhibit 151 before trial to ensure it had been properly redacted to delete references to uncharged misconduct, and he argues that appellate counsel provided ineffective assistance by failing to raise a claim on appeal challenging the admission of a State's expert's testimony as to how gunshot residue may have ended up on Thompson's clothing. The motion court denied both claims. Finding no error, we affirm.

Background²

On Saturday, February 14, 2015, Thompson drove to Jefferson City with a female acquaintance. The couple stayed at an apartment belonging to Thompson's friend. At some point on Saturday, Thompson took a gun from an upstairs closet.

On Sunday morning, Thompson left the apartment and met with Vincent Smith. Thompson and Smith talked about "going to take something from someone." Thompson and Smith decided to take drugs from Johnny Evans. Thompson and Smith knew that Evans would have drugs and money based on conversations with people in the neighborhood.

Thompson and Smith asked Robert Burks for a ride to East High Street, where Evans lived. Thompson and Smith told Burks that they were going to East High Street to "get a lick off some weed." A "lick" refers to obtaining drugs or money illegally. Burks drove Thompson and Smith to East High Street.

Thompson and Smith exited Burks's car and headed toward Evans's apartment. Burks saw Thompson pull a gun from his pocket. Thompson and Smith approached the back door of Evans's apartment. Smith kicked in the back door, and the two men entered. Smith testified that he and Thompson entered Evans's apartment to take drugs and money.

Thompson and Smith found Evans lying on a couch in his living room. Thompson and Smith asked Evans for drugs. Evans said that he did not know what they were talking about. Smith began looking around the living room and then heard a gunshot. Smith looked up and saw Thompson holding a gun. Thompson fired another shot, which Smith saw hit Evans. Thompson and Smith fled the apartment, and left the scene in Burks's car. Evans later died.

The State charged Thompson with second-degree murder, first-degree burglary, attempted first-degree robbery, and armed criminal action. The jury found Thompson guilty of first-degree burglary but acquitted Thompson on the other charges. Thompson waived jury sentencing, and the trial court imposed a fifteen-year sentence for first-degree burglary.

Thompson appealed his conviction and sentence to this court, raising two claims of error: (1) insufficient evidence to support his conviction, and (2) plain error in failing to afford Thompson allocution. State v. Thompson , 538 S.W.3d 390, 391 (Mo. App. W.D. 2018). This court affirmed the judgment below. Id. at 396.

Thompson subsequently filed a pro se Rule 29.15 motion. Appointed counsel filed an amended motion, alleging—as relevant to this appeal—that trial counsel was ineffective in failing to review State's Exhibit 151 before it was admitted and published to the jury and that appellate counsel was ineffective for failing to raise a claim on appeal challenging admission of testimony from a State's expert witness as to how gunshot residue may have ended up on Thompson's clothing. The motion court held an evidentiary hearing, wherein it received testimony from both trial counsel and appellate counsel, as well as Movant's Exhibit 151 (represented to be a copy of State's Exhibit 151).

The motion court issued findings of fact and conclusions of law, overruling Thompson's motion, finding that trial counsel's conduct was based upon reasonable trial strategy and that Thompson failed to prove prejudice under either claim of ineffective assistance. Thompson appeals.

Standard of Review

We review the motion court's findings of fact and conclusions of law for clear error. Rule 29.15(k). "Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made." Edwards v. State , 200 S.W.3d 500, 509 (Mo. banc 2006) (quoting Morrow v. State , 21 S.W.3d 819, 822 (Mo. banc 2000) ). "The motion court's findings of fact and conclusions of law are presumed to be correct." Id.

Analysis

Thompson raises two claims on appeal. First, he argues that trial counsel was ineffective for "failing to review State's Ex. 151 before it was admitted and published to the jury" to ensure that it had been properly redacted to remove all references to uncharged misconduct. Second, he claims that appellate counsel was ineffective in failing to raise a claim on appeal challenging the admission of testimony from a State's expert regarding how gunshot residue may have gotten on Thompson's clothing.

A. Thompson failed to prove ineffective assistance of trial counsel.

"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 to prove his or her claims." Anderson v. State , 564 S.W.3d 592, 600 (Mo. banc 2018). "Under Strickland , Movant must demonstrate: (1) his trial counsel failed to exercise the level of skill and diligence reasonably competent trial counsel would in a similar situation, and (2) [movant] was prejudiced by that failure." Id. (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "Trial strategy decisions may be a basis for finding ineffective assistance of counsel only if that decision was unreasonable." Id. "[S]trategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable...." Id. (quoting Dorsey v. State , 448 S.W.3d 276, 287 (Mo. banc 2014) ).

To establish a right to relief under Strickland , a movant must also prove prejudice. Id. at 601. "Prejudice occurs when ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ " Id. (quoting Deck v. State , 68 S.W.3d 418, 429 (Mo. banc 2002) ).

Here, Thompson argues that trial counsel was ineffective for failing to review State's Exhibit 151 (a video of his police interrogation) before it was published for the jury to ensure that all references to uncharged misconduct had been redacted.³ Thompson claims that the exhibit had not been properly redacted and, as a result, the jury heard evidence that he had been involved in other uncharged crimes. To support this claim at the evidentiary hearing below, Thompson submitted the trial transcript, a copy of State's Exhibit 151, and testimony from trial counsel.

In his amended motion, Thompson quoted the following colloquy from the trial transcript, which occurred before State's Exhibit 151 was played for the jury:

[TRIAL COUNSEL]: Judge, can we approach briefly, please?

THE COURT: Well, we can.

(Counsel approached the bench, and the following proceedings were had:)

[TRIAL COUNSEL]: Judge, my understanding is the exhibit the State is going to introduce is a redacted copy of my client's interview. I have not yet reviewed that redacted interview. The State's assured me that they've taken out all prior uncharged bad acts and that this is dealing simply with his interview regarding just this alleged incident and his denial about his involvement. So my objection will be no objection contingent upon the fact that the State has told me —

THE COURT: Well, it would be a mistrial if it's not done the right way or something. Okay.

[TRIAL COUNSEL]: Thank you, Judge.

[PROSECUTOR]: Is there specific areas that —

[TRIAL COUNSEL]: No.

[PROSECUTOR]: Is there specific areas that the Defense would like taken out? We took out the prior arrest and Greg's confrontation about the prior robbery. We left in that he's never been arrested, he doesn't have any convictions. There is a part where he has done something illegal and they're asking him, "Have you ever done anything illegal and been caught?" The other part is he smokes marijuana but does nothing else.

[TRIAL COUNSEL]: And I would have no objection to any of that information coming in.

THE COURT: If anything shows up, I want you to let me know, and you guys stop it immediately, and we'll try to —

[TRIAL COUNSEL]: Thank you, Judge.

THE COURT: Okay. Thank you. All right.

Thompson also relied on the following colloquy, occurring during the playing of State's Exhibit 151:

(A portion of State's Exhibit 151 was played for the jury.)

(Counsel approached the bench, and the following proceedings were had:)

[TRIAL COUNSEL]: Judge, based on the Court's ruling regarding this evidence in this video, the State said they had redacted all information of prior uncharged bad acts of which two of those things were just discussed about how Kilavonte said that Little Charles robbed a drug dealer, and before that they talked again about how he was out robbing people.

At this time, I'm not moving for a mistrial, but I would like for the showing of this video which clearly has not been redacted to be stopped and for the Court to give a curing instruction telling the jury they can disregard any portion of this video.

THE COURT: What portion did you want me to go back to?

[TRIAL COUNSEL]: Judge, I would ask that we not show any more of the clip of Officer

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