Opinion
No. ED 84656
March 1, 2005
Appeal from the Circuit Court of Marion County, Honorable Ronald R. McKenzie.
Mark Allen Grothoff, Columbia, MO, for appellant.
Deborah Daniels Karen L. Kramer, Jefferson City, MO, for respondent.
Before Clifford H. Ahrens, P.J., William H. Crandall, Jr. J. (writer), and Nannette A. Baker, J. concurring.
Ecclesiastes Matthews (Movant) appeals from the judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We affirm in part, reverse in part, and remand.
Movant was charged with two counts of the Class A felony of delivery of a controlled substance near schools in the Marion County Circuit Court, District 2 at Hannibal. Movant filed a joint application for change of venue and change of judge pursuant to Rule 32.03 and Rule 32.07. Movant's change of judge request was granted and his request for a change of venue was sustained.
Prior to trial, the charge was amended to two counts of the Class B felony of delivery of a controlled substance.
A jury convicted Movant of two counts of the Class B felony of delivery of a controlled substance in violation of Section 195.211 RSMo (2000). The trial court, having previously found Movant to be a prior drug offender, sentenced him to two consecutive twenty-five year terms of imprisonment. We affirmed Movant's conviction. State v. Matthews, 99 S.W.3d 494 (Mo.App. E.D. 2003). Thereafter, Movant filed a pro se Rule 29.15 motion and appointed counsel filed an amended Rule 29.15 motion. Movant alleged he was denied effective assistance of counsel. The motion court denied Movant's motion and his request for an evidentiary hearing. Movant appeals.
Appellate review of the denial of a post-conviction motion is limited to determining whether the trial court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k);Smulls v. State, 71 S.W.3d 138, 147 (Mo banc 2002). Findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with a definite and firm impression a mistake has been made. Smulls, 71 S.W.3d at 147. The movant must prove his claims by a preponderance of the evidence. Rule 29.15(i); Nicklasson v. State, 105 S.W.3d. 482, 484 (Mo. Banc 2003).
To establish a claim of ineffective assistance of counsel, a movant must allege facts showing counsel's performance did not conform to the degree of professional skill and diligence of a reasonably competent attorney and he or she was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To demonstrate prejudice, the movant must allege facts that show a reasonable probability, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. We presume the trial counsel's performance was reasonable and was not ineffective. Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001). Reasonable decisions regarding trial and appellate strategy cannot be the basis for an ineffective assistance of counsel claim. Id. at 206.
A movant is entitled to an evidentiary hearing if the motion meets three requirements: (1) the motion must allege facts not conclusions that warrant relief; (2) the facts alleged must not be refuted by the files and records of the case; and (3) the allegations must have resulted in prejudice. Schmedeke v. State, 136 S.W.3d 532 (Mo.App.E.D. 2004). To deny a request for an evidentiary hearing, the record must conclusively show the movant is not entitled to relief. Id. at 533.
In his first point, Movant contends the motion court erred in denying his Rule 29.15 motion for post-conviction relief because he was denied effective assistance of counsel in that his trial counsel failed to object to the trial court transferring the case to another district within the same county rather than providing him with a proper change of venue and his appellate counsel failed to raise the issue on direct appeal.
Rule 32.03 provides:
(a) A change of venue shall be ordered in any criminal proceeding triable by a jury pending in a county having seventy-five thousand or fewer inhabitants upon the filing of a written application therefore by the defendant. In felony and misdemeanor cases the application must be filed not later than ten days after the initial plea is entered. The defendant need not allege or prove any reason for change. The application need not be verified and shall be signed by the defendant or the defendant's attorney.
(b) A copy of the application and notice of the time when it will be presented in the court shall be served on all parties.
(c) If a timely application is filed, the court immediately shall order the case transferred to some other county convenient to the parties, first giving all parties an opportunity to make suggestions as to where the case should be sent. In lieu of transferring the case to another county, the court may secure a jury from another county as provided by law.
Marion County has fewer than seventy-five thousand inhabitants. Movant filed a timely joint application for change of venue and change of judge pursuant to Rule 32.03 and Rule 32.07. Movant's change of judge request was granted and his request for a change of venue was sustained. Only one circuit court exists in Marion County. Klemme v. State, 812 S.W.2d 569, 571 (Mo.App.E.D. 1991). The circuit court, however, is divided into two districts, District 1 at Palmyra and District 2 at Hannibal pursuant to Section 478.720 RSMo (2000). Movant's case was transferred from District 2 at Hannibal to District 1 at Palmyra.
In his amended Rule 29.15 motion, Movant alleged his trial counsel was ineffective for failing to object to the trial court's failure to provide Movant with a proper change of venue and his appellate counsel was ineffective for failing to raise as plain error on appeal the trial court's failure to properly grant Movant's timely request for change of venue pursuant to Rule 32.03. Movant further alleged had his trial counsel made an objection, a reasonable probability exists the proper change of venue to which he was entitled to as a matter of right would have been provided and had appellate counsel challenged the trial court's failure to grant a proper change of venue a reasonable probability exits this court would have reversed his conviction. Movant noted it is reversible error for a trial judge to deny a timely filed Rule 32.03 motion for change of venue. Moss v. State, 10 S.W.3d 508, 513 (Mo. banc 2000). The motion court found no ineffectiveness in this case for failure to file another venue change motion or try for another venue and noted one change of venue had been taken.
Contrary to the motion court's finding, we conclude the transfer of Movant's case from Marion County Circuit Court, District 2 at Hannibal to Marion County Circuit Court, District 1 at Palmyra does not constitute a change of venue as required by Rule 32.03. Rule 32.03 clearly states the court immediately shall order the case transferred to some other county or in lieu of transferring the case to another county, the court may secure a jury from another county. A transfer between districts of the same circuit within the same county essentially denies Movant's request for a change of venue pursuant to Rule 32.03.
The State contends, however, even if the change of venue was improper, Movant waived the claim by proceeding to trial and was not prejudiced. We agree trial counsel's proceeding to trial without objection waived the claim, but note the issue then becomes whether trial counsel's conduct that waived the claim or appellate counsel's failure to raise the issue as plain error on appeal constitutes ineffective assistance of counsel. Additionally, we find the State's argument that Movant failed to show he was prejudiced by the improper venue is without merit. Rule 32.03 allows for a change of venue as a matter of right without a showing of prejudice or bias on the part of the inhabitants of the county. Rule 32.03 does not require Movant to allege or prove any reason for change of venue. Movant was entitled to the change of venue as a matter of right after making a timely request and was thereby prejudiced. Additionally, a trial judge's denial of a timely filed Rule 32.03 motion for change of venue is reversible error. Moss, 10 S.W.3d at 513.
Because an evidentiary hearing was not held, Movant's trial counsel and appellate counsel were not given an opportunity to explain their actions. The record reveals, however, that immediately prior to trial, Movant's trial attorney asked the court to proceed without a jury because he believed his client could not get a jury of his peers in this particular venue. Additionally, the record is silent as to Movant's appellate counsel's decision-making process.
The court denied Movant's request and proceeded to trial with a jury selected from Marion County, District 1 at Palmyra.
Acccordingly, we find the trial court erred in denying Movant's Rule 29.15 motion without an evidentiary hearing. Movant's first point is granted.
In his second point, Movant asserts the motion court erred in denying his Rule 29.15 motion for post-conviction relief because he was denied due process of law, equal protection, and a fair and impartial jury because his jury pool was not selected at random from a fair cross-section of the citizens of Marion County in violations of Sections 494.400 through 494.505 RSMo (2000). Additionally, he contends he was denied effective assistance of counsel in that his trial counsel failed to challenge the jury selection process prior to trial.
Movant raises two claims of error which should be set forth in separate points. Thummel v. King, 570 S.W.2d 679, 688 (Mo. banc 1978); Mello v. Williams, 73 S.W.3d 681, 685 (Mo.App. E.D. 2002).
Movant's first argument purports to raise a constitutional violation. A challenge to the jury panel must be made before trial by pleading and proving fatal departures from the basic procedural requirements. State v. Sumowski, 794 S.W.2d 643, 647 (Mo banc 1990). Failure to make such a challenge waives the claim. Id. It is well established trial error cannot be raised in a Rule 29.15 motion but must be raised on direct appeal.Griffin v. State, 794 S.W.2d 659, 661 (Mo banc 1990). Allegations of trial error that are constitutional violations are not cognizable in a Rule 29.15 motion without a showing of exceptional circumstances for not raising the constitutional grounds on direct appeal. State v. Redman, 916 S.W.2d 787, 793 (Mo. banc 1996). Movant has not alleged any such circumstances warranting our review of this claim. Consequently, we will only address Movant's claim he was denied effective assistance of counsel in that his trial counsel failed to challenge the jury selection process prior to trial.
To prevail on a claim of ineffective assistance of counsel, a movant must show counsel's performance was deficient and the movant was prejudiced by the deficient performance. Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 2064. Prejudice is not established by showing trial counsel's error had some conceivable effect on the outcome of the proceedings, rather a movant must show a reasonable probability the result would have been different except for the errors of counsel. Id. at 694, 104 S.Ct. at 2068. We need not determine whether trial counsel's performance was deficient before we examine the alleged prejudice suffered by the movant as a result of the alleged deficiencies.Id. at 697, 104 S.Ct. at 2086.
Section 494.400 RSMo (2000) provides:
All persons qualified for grand or petit jury service shall be citizens of the state and shall be selected at random from a fair cross section of the citizens of the county or of a city not within a county for which the jury may be impaneled, and all such citizens shall have the opportunity to be considered for jury service and an obligation to serve as jurors when summoned for that purpose, unless excused. A citizen of the county or of a city not within a county for which the jury may be impaneled shall not be excluded from selection for possible grand or petit jury service on account of race, color, religion, sex, national origin, or economic status.
Movant does not contend venirepersons were not selected at random or potential venirepersons were excluded based on race, color, religion, sex, national origin, or economic status. Movant's only assertion is he was prejudiced in that jurors were not selected at random from a fair cross-section of the citizens of Marion County because they were not selected from both districts in Marion County.
To establish a violation of the fair cross-section requirement, a movant must show: (1) the alleged excluded group is a distinctive group within the community; (2) the representation of this group is not fair and reasonable with respect to the number of such persons within the community; and (3) this under-representation is due to systematic exclusion of the group in the jury-selection process. Ringo v. State, 120 S.W. 3d 743, 747 (Mo banc 2003).
District 2 was not represented in Movant's jury pool; however, Movant did not allege it constituted a distinctive group. Absence of members of certain geographic communities, absent something distinguishable does not violate a defendant's right to a jury comprised of a fair cross-section of the community. See State v. Alexander, 620 S.W.2d 380, 385 (Mo. banc 1981). Movant has failed to allege facts which show the jury selection process violated the fair cross-section requirement.
Additionally, Movant did not allege how the result of his trial would have been different had the jury been selected from both districts in Marion County. Conclusory allegations of prejudice in a Movant's Rule 29.15 motion will not support a claim of ineffective assistance of counsel. State v. Starks, 856 S.W. 2d 334, 336 (Mo. banc 1993).
Movant's second point is denied.
In his third point on appeal, Movant contends the motion court erred in denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing because he was denied effective assistance of counsel in that his trial counsel failed to introduce evidence of possible alternative sources of the cocaine allegedly sold to an informant.
We have reviewed the record on appeal and the briefs of the parties and find the motion court's findings and conclusions on this point are not clearly erroneous. An extended discussion would have no precedential value. Accordingly, Movant's third point is denied pursuant to Rule 84.16(b).
In his fourth and final point, Movant contends the motion court erred in denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing because he was denied effective assistance of counsel in that his trial counsel failed to introduce and play for the jury surveillance tape recordings of the alleged drug transactions.
In his amended Rule 29.15 motion, Movant alleged the tapes were sufficiently audible to allow argument that had he been involved in a transaction with either informant, it would have been discernible on the recordings. Additionally Movant asserted the tapes actually indicate at least one of the informants can be heard arranging a drug buy with someone other than Movant. Movant argued because the State's case hinged on the testimony of the confidential informants, the lack of any evidence on the tapes to verify the sales would have cast substantial doubt on the testimony of each informant. Movant contended the lack of any evidence on the tapes to verify the testimony of the two confidential informants that they obtained crack cocaine from Movant and the general conversation on the tapes would have furthered Movant's argument that the informants may have obtained drugs from an alternative source.
Finally, Movant argued there is a reasonable probability the playing of the tape recordings would have altered the outcome of his trial. The motion court denied Movant's claim on the basis of trial strategy, noting the tapes could have bolstered the witnesses' testimony and emphasized matters which would have been detrimental to Movant.
Contrary to the motion court's conclusion, we find the record does not conclusively show Movant was not entitled to relief. Here, Movant's counsel stated prior to the Movant's case-in-chief and again at Movant's sentencing hearing that he made a decision not to play the tapes. Counsel did not, however, state any reason for his decision. Additionally, nothing in the record indicates the motion court listened to the tapes. Consequently, we do not know the contents of the tape.
The mere assertion trial counsel's conduct was trial strategy is not sufficient to preclude a movant from obtaining relief on a claim of ineffective assistance of counsel. Schmedeke, 136 S.W.3d at 534. To be the basis for denying post-conviction relief, the trial strategy must be reasonable. Id. Here, the record does not conclusively show counsel's decision not to play the surveillance tape recordings was reasonable trial strategy. Because no evidentiary hearing was held on the matter, Movant's trial counsel was not given an opportunity to explain his decision.
Accordingly, we find the trial court erred in denying Movant's motion without an evidentiary hearing. Movant's fourth point is granted.
The judgment is reversed and the cause remanded for an evidentiary hearing on Movant's claims in points one and four. In all other respects, the judgment is affirmed.
Clifford H. Ahrens, P.J.: Concurs in part and dissents in part in separate opinion Nannette A. Baker, J.: Concur.
DISSENTING OPINION
I respectfully dissent from the portion of the majority opinion that finds pursuant to Rule 32.03, movant was entitled to a change of venue as a matter of right after requesting such a change, and was thereby prejudiced by the improper change of venue. I believe that, pursuant to the Missouri Supreme Court's decision in Moss v. State, 10 S.W.3d 508 (Mo. banc 2000), no presumption of prejudice for purposes of post-conviction claims of ineffective assistance of counsel is created by Rule 32.03, and the record in the present case conclusively refutes any claim of actual prejudice. Because the issue of prejudice is dispositive, I do not believe it is necessary to reach the question of whether the change of venue was improper. Additionally, any claim of improper venue was waived because movant proceeded to trial without asserting an objection to venue. I concur with the remainder of the majority opinion.
In Moss, the Supreme Court was faced with facts similar to those in the instant case. Moss requested post-conviction relief pursuant to Rule 29.15, and the trial court denied his request without an evidentiary hearing. The Supreme Court granted transfer after an opinion from the Court of Appeals. On appeal, Moss claimed his counsel was ineffective for failing to request a change of venue pursuant to Rule 32.03. He argued that he was "presumptively and actually prejudiced" by counsel's failure.Moss, 10 S.W.3d at 513. The Supreme Court found, "Rule 32.03 does not create any presumption that a defendant cannot receive a fair trial in counties having seventy-five thousand or fewer inhabitants." Id. The Court continued to note that even if such a presumption was created by Rule 32.03, the record showed Moss was tried by an impartial jury, thereby rebutting any potential presumption. Id. at 514.
Movant argues that State v. Cella, 976 S.W.2d 543 is analogous to this case. The court in Cella was faced with a claim on direct appeal regarding the failure of a trial judge to recuse himself pursuant to a timely motion based on Rule 32.07. The court found the judge's failure to recuse himself was plain error because pursuant to a timely motion, the judge was without jurisdiction other than to transfer the case. Id. at 552-53. Movant ignores the fact that Cella was distinguished by the Supreme Court in Moss because prejudice was not at issue inCella, and it is distinguishable from the present case for the same reason. Moss, 10 S.W.3d at 514.
Pursuant to Moss, there is no presumption of prejudice for purposes of post-conviction claims of ineffective assistance of counsel created by Rule 32.03. Therefore, movant must show actual prejudice as required by Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). As stated above by the majority, pursuant to Strickland, to prevail on a claim of ineffective assistance of counsel, a movant must allege facts to show that counsel's performance failed to conform to that degree of skill and diligence of a reasonably competent attorney and he was thereby prejudiced. Id. (emphasis added) Prejudice is shown by facts alleged that demonstrate that, but for the deficient performance of counsel, there was a reasonable probability that the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068.
In the present case, regardless of whether counsel's failure to request a venue change constituted ineffective assistance, to the extent movant claims he was prejudiced, the record conclusively refutes such a claim. Prior to trial, counsel for movant argued that he could not "get a jury of his peers, for various reasons," in the venue; however, no reasons were set forth. None of the jurors on the panel knew movant, and none of them had heard any coverage about his case. Thus, there is no reason to believe that the result would have differed had the change of venue occurred. As a result, the record conclusively refutes any claim of prejudice, and the trial court did not clearly err in denying movant's request for post-conviction relief without an evidentiary hearing on this ground.