Washington v. State

681 S.W.3d 347

Adrian R. WASHINGTON, Appellant,

v.STATE of Missouri, Respondent.

No. ED 111393

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: December 26, 2023

Appeal from the Circuit Court of the City of St. Louis, Honorable Elizabeth B. Hogan, Judge

For Appellant: Andrew Mossman, 1010 Market St. Ste. 1100, St. Louis, MO 63101.

For Respondent: Nathan J. Aquino, P.O. Box 899, Jefferson City, MO 65102.

KURT S. ODENWALD, Presiding Judge

Introduction

Adrian R. Washington ("Washington") appeals from the motion court’s judgment denying his Rule 29.15¹ motion for post-conviction relief following an evidentiary hearing. Washington raises three points on appeal. In Point One, Washington argues that the motion court clearly erred in denying his Rule 29.15 motion because Trial Counsel was ineffective for failing to adduce evidence that victim D.B., who testified that his cell phone was stolen, had a cell phone among his personal property immediately after the robbery. Point Two contends the motion court clearly erred in denying his motion for post-conviction relief because Trial Counsel was ineffective for failing to present evidence that DNA found on D.B.’s gun belonged to D.B. and not, as a DNA expert testified, to an "unknown male." In Point Three, Washington alleges the motion court clearly erred in denying his Rule 29.15 motion because Trial Counsel provided ineffective assistance by introducing multiple prior arrest photographs of Washington to impeach a detective who claimed he could not access a photograph of Washington with hair for the photographic lineup. Washington’s photograph in the photo spread was the only photograph of a Black male without hair. Because we find that Trial Counsel reasonably focused on a theory of defense that Washington was misidentified, the decision not to adduce evidence about D.B.’s cell phone and DNA was reasonable, and we deny Points One and Two. Similarly, we deny Point Three because seeking to impeach the detective with available photographs of Washington with hair was reasonable strategy in light of Trial Counsel’s misidentification defense. Accordingly, we affirm the motion court’s judgment.

Factual and Procedural History

[1] In 2016, the State charged Washington with one count of first-degree murder, four counts of first-degree robbery, five counts of armed criminal action, and one count of resisting arrest. The case proceeded to trial in 2018, where the following evidence was presented.²

On the night of January 18, 2016, a group of four men—A.B., D.B., C.Cu., and C.Cl.—had plans to see a movie at the theater. They all got into A.B.’s car. A.B. drove, D.B. sat in the passenger seat, and C. Cu and C.Cl. were in the back of the car. D. B. legally carried a Glock 42 gun, which he stored in the console of A.B.’s passenger door. On the way to the movie theater, A.B. received an incoming call on his cell phone from a contact saved as "Baldhead." A.B.’s phone was connected to his car, so the passengers saw "Baldhead" appear on the dashboard console and heard the ensuing conversation over the car speaker. Baldhead asked A.B. to meet up for a drug sale.

This was not the first time that D.B. and C.Cu had heard of Baldhead. D.B. had previously met Baldhead on three or four occasions. C.Cu. had met Baldhead earlier that day when A.B. and Baldhead met in a park for a brief conversation. Both D.B. and C.Cu. only knew Baldhead by his nickname.

A.B. and Baldhead pulled them cars into an alleyway and parked on a parking pad, and then exited their cars to talk. D.B., C.Cu., and C.Cl. remained in the car, observing A.B. and Baldhead from them seats. While A.B. and Baldhead talked, a masked man carrying a revolver exited Baldhead’s car and entered A.B.’s driver-side door. The masked man pointed his revolver at D.B., C.Cu., and C.Cl. and demanded they hand over their possessions. The masked man took D.B.’s money and phone, C.Cu.’s phone, and C.Cl.’s cigarettes. During the robbery, the passengers witnessed Baldhead draw a revolver and fire a single shot toward A.B.’s temple. Baldhead then yelled to the masked man to "[f]inish the job" or "get it over with" so they could leave.

Fearing for his safety, D.B. fired multiple rounds from his Glock 42 at the masked man. The masked man fired back, and D.B. was shot in his hip and head. The masked man and Baldhead then fled the scene. D.B. instructed C.Cl. to grab the phones remaining in A.B.’s car. When police officers arrived, D.B. threw his Glock 42 onto the ground to indicate he was unarmed, and the officers seized the gun for forensic testing.

A.B. died at the scene from his gunshot wound. D.B. was transported to the hospital, where he reported to police officers that Baldhead shot A.B. C.Cu. described the shooter to police officers as being bald with skin pigmentation on his face and hands. C.Cl. could not recall his initial conversation with police officers, but later reported that Baldhead shot A.B.

Through a search warrant, police officers obtained call records from A.B.’s phone and discovered that seventy-three calls were exchanged between A.B. and a number associated with Washington in the five days preceding the shooting. Several calls were exchanged between the two numbers in the minutes just before the shooting. Based on this information, the police identified Washington as a suspect.

Washington has vitiligo—or skin pigmentation—and, at the time of the shooting, was bald. The detective ("Detective") prepared a photographic lineup which included a photograph of Washington and several filler photos. Detective selected the fillers by searching for men with skin pigmentation. All the men featured in the filler photographs had skin pigmentation and hair; the photograph of Washington was the only photo of a bald man. The police showed the lineup to D.B., C.Cu., and C.Cl. separately, and each identified Washington as the person who shot A.B.

While cross-examining Detective, Trial Counsel engaged in the following exchange about the photographic lineup:

Trial Counsel: Mr. Washington was the only one with a bald head?

Detective: Correct.

Trial Counsel: You were working off the nickname [B]aldhead, right?

Detective: Correct.

….

Trial Counsel: You would agree that if you are able to find a photo or if you had a photo of Mr. Washington with some type of hair that [ ] you would have put that in there, that would have made a more fair or reliable lineup, correct?

Detective: Correct.

Trial Counsel then impeached Detective by showing eighteen of Washington’s prior booking photographs, from arrests as early as 2002, in which Washington had hair. The photographs were not redacted, and each photo listed the date of arrest, arresting jurisdiction, case number, as well as Washington’s height, weight, and age at arrest. Detective responded that, although he did have access to the photographs through a crime matrix system, he needed a recent photograph of Washington for the lineup and those photos were too old.

At a sidebar, the trial court stated that Trial Counsel had opened the door for the State to bring in Washington’s prior arrest history. During redirect examination of Detective, the State introduced the photographs into evidence. Trial Counsel did not request a limiting instruction regarding the booking photographs. The State questioned the Detective about the photographs, but did not elicit any other information about Washington’s prior arrests. During closing argument, the State did not reference Washington’s prior arrest history.

Relevant to this appeal, no DNA evidence linking Washington to the scene of the shooting was adduced at trial. An expert in cell site location information ("CSLI") testified that Washington’s phone was within a two-mile radius of the scene during the crime. Additionally, a St. Louis Metropolitan Police Department’s DNA analyst ("DNA Analyst") testified that the seized Glock 42 was swabbed and returned a DNA profile for an "unknown male" who could not be identified through the department database. The masked man had yet to be identified.

The jury found Washington guilty of second-degree murder, four counts of first-degree robbery, five counts of armed criminal action, and one count of resisting a lawful stop. The trial court sentenced Washington to 150 years in prison. This Court affirmed his convictions on direct appeal in State v. Washington, 588 S.W.3d 564 (Mo. App. E.D. 2019).

Washington filed his Rule 29.15 amended motion on May 22, 2020³. In his amended motion, Washington brought five claims, including the three points raised in this appeal. The motion court granted Washington an evidentiary hearing on his amended motion, at which both Trial Counsel and Washington testified. At the hearing, Trial Counsel testified that his defense strategy was to establish that Washington was not involved in the shooting and had been misidentified by D.B., C.Cu., and C.Cl. Trial Counsel asserted that the photographic lineup was improperly suggestive because the photograph of Washington, whom the witnesses only knew as Baldhead, was the only photo of a bald man in the photo array. Additionally, Washington introduced evidence that D.B.—who testified his cell phone was stolen—was in possession of a phone when he was transported to the hospital. When asked why he did not impeach D.B. on the issue, Trial Counsel testified that his focus while cross-examining D.B. was the misidentification of Washington. Trial Counsel expounded that identification was especially important with D.B. because Trial Counsel believed D.B. had the "best view" of the shooter. Washington also adduced evidence that the DNA found on the Glock 42 produced a Combined DNA Index System ("CODIS") hit to D.B., and not an "unknown male" as the DNA Analyst had testified. Trial Counsel testified that he did not attempt to impeach D.B. with this evidence because his "concentration" was on identification as the "most important" issue of his defense of Washington....