Christopher Sanders v. State of Missouri

• Court: Missouri Court of Appeals
• Decided: June 14, 2022
• Docket: WD84478
• Status: Published

Opinion

In the Missouri Court of Appeals Western District

 CHRISTOPHER SANDERS,   WD84478 Appellant,  OPINION FILED: v.   June 14, 2022 STATE OF MISSOURI,   Respondent.   

Appeal from the Circuit Court of Jackson County, Missouri The Honorable Kenneth R. Garrett, III, Judge

Before Division Two: Karen King Mitchell, P.J., Edward R. Ardini, Jr. and Thomas N. Chapman, JJ.

Christopher Sanders (“Sanders”) appeals a judgment of the Circuit Court of Jackson

County, which denied his Rule 29.15 motion for postconviction relief after an evidentiary

hearing. Sanders raises three points on appeal alleging that the motion court clearly erred in

denying relief on three claims of ineffective assistance of trial counsel. Specifically, Sanders

argues that he received ineffective assistance when his trial counsel (1) failed to request a “castle

doctrine” instruction based on section 563.031.2(2);1 (2) failed to request a self-defense

1 Unless otherwise indicated, statutory references are to RSMo 2000, as updated through the 2010 cumulative supplement. instruction that removed the duty to retreat based on section 563.031.3; and (3) failed to request a

“correct” lesser-included offense instruction. The judgment is affirmed.

Background

On December 7, 2011, a maintenance worker discovered the body of Sherilyn Hill

(“Hill”) under the stairwell of a motel in Kansas City, Missouri. A blood-tinged towel was

wrapped around the lower part of Hill’s face and tied in a knot at the back of Hill’s head. A

blood-tinged bed sheet was wrapped around Hill’s neck and tied in a knot at the back of her

neck. A medical examiner determined the cause of death to be blunt force trauma to the head

and strangulation. A ligature mark on Hill’s neck was determined to be caused by strangulation

with a sheet while Hill was alive. The strangulation caused a fracture of Hill’s thyroid cartilage

and a hemorrhage between her esophagus and trachea. Hill’s blunt force trauma injuries

included an abrasion on the left side of her forehead; an abrasion on the end of her nose; a

contusion on her upper lip; an abrasion next to her left eyebrow; another abrasion and hematoma

beside her left eye; a 3/4 inch laceration below her left eye; a contusion on her left cheek; an

abrasion in front of her left ear; another abrasion on her left jawline; a 5/8 inch tear on her upper

lip; tears in her upper and lower frenulum; a 1 1/2 inch laceration on her lower lip; a seven inch

abrasion on her upper left thigh; an abrasion and contusion on top of her left foot; abrasions on

the inside and outside of her right knee; an abrasion on the left side of her chest; and four

abrasions on the left side of her abdomen. An internal examination revealed that Hill had

multiple areas of hemorrhage on her scalp, and her scalp had torn away from her skull.

An investigation revealed that on November 22, 2011, Sanders rented a room at the motel

and shared it with Hill and Zonia Brown (“Brown”). Brown told police that Sanders and Hill

had been involved in a violent incident at the motel. Sanders was arrested and questioned.

2 Sanders denied that any altercation had occurred. A search of Sanders’s home revealed Hill’s

blood on his boots. Sanders was charged with murder in the second degree for knowingly

causing Hill’s death “by kicking her and strangulating her.”

At trial, Brown testified that she was attempting to find work as a prostitute on November

22, 2011. Brown met Hill, Sanders, and a drug dealer named Monty2 in a parking lot where she

was invited to go to a motel room with them. Sanders and Hill went into the lobby of the motel

to get a room. Once inside the motel room, Monty sold crack cocaine to Sanders. Brown

testified that she was in the room hoping to smoke crack cocaine, and that Sanders gave Brown a

“hit” of crack cocaine. Brown testified that Sanders was smoking the majority of the crack

cocaine and that he was using the pipe of Hill or Brown to do so. Brown testified that Hill

became dissatisfied with how Sanders was “being stingy with the crack” and at some point Hill

pulled a knife on Sanders. Brown testified that Hill stood a couple of feet away from Sanders as

she held the knife and demanded that Sanders give Hill more crack cocaine. Brown testified that

Hill did not come close to Sanders with the knife but stood and pointed it at him. Hill and

Sanders argued with each other until Hill eventually put the knife back in her pocket when

Sanders provided Hill and Brown a “little-bitty” piece of crack cocaine. Sanders again started

smoking crack cocaine. Brown testified that Hill again requested more crack cocaine. When

Sanders refused, Hill again pulled out a knife, pointed it at Sanders, and demanded more crack

cocaine. Brown testified that Sanders refused her demand and told Hill to put the knife away,

which Hill did. Hill then pulled her knife out a third time, and demanded that Sanders give her

2 Monty was never identified at trial beyond his first name. The trial transcripts at times referred to Monty as “Montay” with an indicator that “Montay” was a phonetic spelling. We refer to this individual as Monty in this opinion.

3 more crack cocaine. Eventually, Hill returned to an area of the room with a mirror, placed her

knife on the sink and started attempting to hit her pipe again with her back facing the rest of the

room. Sanders stood by the bed where Brown was sitting. Brown testified that Sanders then

looked at Brown and said, “You ready?” Brown understood this to mean that Sanders was going

to give Brown more crack cocaine. Instead, Brown testified that Sanders walked behind Hill and

kicked Hill in the head. Hill fell against the wall, then tried to get up but was unable to do so, as

Sanders kicked her again in the head and continued kicking her. Brown testified that Sanders

“just kicked her a thousand times. He kicked her over ten times.” Brown testified that she

pleaded with Sanders not to kick Hill anymore, but Sanders told Brown: “Shut up, I ain’t going

to hurt you. She shouldn’t have pulled that knife on me.” Brown testified that, as Sanders

kicked Hill, Hill was “fighting for her life” and that Sanders continued to kick Hill every time

Hill tried to get up from the floor. Brown testified that Hill eventually could no longer attempt to

get up and laid on the floor after taking what seemed to Brown to be Hill’s last breath. Brown

testified that Sanders then made Brown get off of the bed, and that Sanders then appeared to

begin to wrap Hill in a bed sheet. Brown then ran out of the room.

Sanders testified to a significantly different account of events. Sanders testified that he

was riding the bus home from work when he got off near Independence Avenue to get a beer. He

eventually entered a convenience store to get another beer when he met Hill, who was standing

behind him in line. Hill commented that it looked like Sanders was “getting ready to have a

good time.” Eventually, the two decided to get a room to “go fool around.” Sanders testified

that he understood Hill to be a prostitute and that it was his intention to hire her as a prostitute

that night. Sanders testified that he and Hill “went to go party.” Eventually, Hill and Sanders

encountered a man named Monty, whom Sanders understood to be Hill’s “pimp” or “overseer.”

4 Sanders testified that Monty was going to “hang out” with Hill and Sanders for a while to “make

sure everything was cool.” Sanders, Monty, and Hill then encountered Brown. Sanders testified

that Brown “pretty much invited herself to come along.” The group eventually decided to get a

room at a motel where Monty was staying. Sanders paid for the room. Then, Sanders, Hill,

Brown, Monty, and another unidentified man went up to the room Sanders rented. Sanders

testified that he purchased crack cocaine for Hill and Brown from Monty. After approximately

30 minutes, Monty and the other man left the room. Sanders testified that he gave the crack

cocaine to Hill and Brown, but that Sanders also smoked some of the crack cocaine, borrowing a

pipe from Hill or Brown to do so.

At some point, Hill and Brown told Sanders: “If you want to fool around, you’re going to

have to get us high.” Sanders testified that he put the crack cocaine out on a table. He testified

that there were beer and drinks everywhere in the room, and that he watched television. Sanders

testified that several people started arriving at the room from elsewhere in the motel and that

multiple people were coming and going from the room. At some point, Sanders purchased more

crack cocaine from one of the people. Sanders testified that Hill informed him at some point that

the crack cocaine was almost gone, and that Hill was waving a knife in his face. Sanders

testified that Hill eventually put the knife away. Sanders testified that he was not worried about

the incident and went back to watching television. About ten or fifteen minutes later, Hill again

pulled a knife out and stuck it in Sanders’s face, demanding that Sanders buy more crack.

Sanders testified he became apprehensive. He testified:

And I pretty much said, “you know, you can just leave. You know, I done bought you crack and I got the room, like you said.” You know, I felt like I was getting hustled. I started, okay, you’re getting hustled, bro. Yeah. Later, later, later. There’s no later ever coming. We’re not going to have sex, so I’m getting buffaloed

5 here and I’m getting my pockets dug into for nothing. So it’s like, You all can just go, man. This is – no, this is no.

Sanders testified that Hill responded, “No, no baby, it’s cool, it’s cool, we just – you know, it’s

cool.” Sanders testified that he stayed in the room because he was still hopeful of having sex.

Sanders testified that Hill later pulled a knife out, approached Sanders from behind and

stuck the knife against his throat, slicing him. Hill then told Sanders that she would “just take”

his belongings. Sanders testified that Hill then grabbed his wallet from his pocket, threw it to

Brown, and told Brown to take the money from the wallet. At some point, Hill turned her head,

and Sanders grabbed her wrist to move it away from his throat and elbowed Hill on the side of

her head. Sanders testified that after he struck Hill, Hill stumbled backward and then “started

swinging wild, just crazy[.]” Sanders testified that he was fearful of being cut or stabbed, so he

kicked Hill in the chest to knock her back. Sanders testified that he then hit Hill in the mouth

causing her to fall backward and hit her head on the sink. As Hill was on all fours and reaching

for the knife, Sanders ran and kicked the knife away, and unintentionally kicked Hill in the face

in the process of trying to knock the knife away. Sanders testified that his kick caused Hill to hit

her head on the wall, and that Hill then became unconscious. Sanders testified that Brown also

had a knife in her hand and threatened to stab Sanders if he did not “get off” Hill. Sanders told

Brown to give him his wallet back, at which point Brown threw the wallet under a table and ran

out of the door. Sanders testified that he then retrieved his wallet and noticed that there was

about $250 missing. Sanders testified that he went to the room where Monty said he was staying

seeking to get his money back. He testified that he never tied a sheet around Hill’s neck, never

strangled Hill, and did not place Hill’s body in the basement. Sanders testified that as Hill lay

unconscious on the ground in the room he did not believe Hill had died because nothing he did to

6 her was life-threatening. He testified that he “rocked her” “probably five or six times” to keep

from getting stabbed. Sanders testified that he was not going to leave Hill in the room so he

carried her down the steps and set her on a landing next to the motel office and notified someone

in the office that Hill was hurt. He stated that he then went to look for his money and beat on a

door to a room where Monty was staying. At some point, Sanders returned to the room where he

encountered a man identified as Chris, who indicated that he knew where to find Brown. As

Sanders left with Chris he noticed that Hill was not where he left her, and Sanders assumed that

Hill awoke and left. At some point, Sanders encountered Timothy Murphy (“Murphy”) and

informed Murphy what had occurred in the motel room. Sanders attempted to sell the motel

room to Murphy for bus fare. Murphy returned with Sanders to the room so that Murphy could

inspect it, and Murphy paid two dollars for the room.3 Sanders then testified he walked home

where he learned that he did not have his keys. Upon returning to the motel, he knocked on the

door of the room he sold to Murphy, and Murphy did not want to let Sanders in the room and

informed Sanders that no keys were in the room. Sanders then looked for his keys in the lobby

of the motel before returning home by foot.

Additional evidence was received at trial including a video of portions of Sanders’s

police interview, and surveillance videos, which apparently captured the lobby and parking lot of

the motel as well as Sanders coming and going from his motel room.4

3 Murphy testified at trial that he traded Sanders a piece of crack cocaine for the room. 4 The exhibits admitted at trial are not contained in our record on appeal, and there is no indication that such exhibits were presented to the motion court. “The record on appeal must contain all of the proceedings necessary to a determination of the questions presented for decision, and matters omitted from the record will not be presumed to be favorable to the appellant.” State v. Watson, 512 S.W.3d 94, 95 n.2 (Mo. App. W.D. 2017) (internal quotations omitted). “In fact, ‘[a]n omitted exhibit . . . may be taken as supporting the judgment of the trial court.’” Id. (citing City of Lee’s Summit v. Collins, 615 S.W.2d 592, 595 (Mo. App. W.D. 1981)).

7 At the close of evidence, the jury was instructed on second degree murder, which

required the jury to determine if Sanders knowingly caused Hill’s death by kicking her and

strangling her; and if he did not do so under the influence of sudden passion or in lawful self-

defense. The jury was also instructed on voluntary manslaughter. Sanders also proffered an

instruction on involuntary manslaughter that would have asked the jury to determine whether

Sanders recklessly caused Hill’s death by kicking her. This instruction did not ask whether

Sanders caused Hill’s death by kicking her and strangling her. The trial court refused Sanders’s

proffered involuntary manslaughter instruction.

The jury found Sanders guilty of second degree murder. The jury found that Sanders

“caused the death of Sherilyn Hill by kicking her and strangling her[.]” The jury found that

Sanders “was aware that his conduct was practically certain to cause the death of Sherilyn Hill,

or that it was [Sanders’s] purpose to cause serious physical injury to Sherilyn Hill[.]” The jury

found that Sanders “did not do so under the influence of sudden passion arising from adequate

cause[.]” Finally, the jury found that Sanders “did not act in lawful self-defense as submitted” in

the self-defense instruction submitted at trial. The trial court sentenced Sanders to life in prison.

On direct appeal, Sanders argued that the trial court erred in refusing his proffered

involuntary manslaughter instruction. The Missouri Supreme Court found that the trial court did

not err in refusing the involuntary manslaughter instruction because Sanders’s proffered

instruction impermissibly deviated from the conduct charged in the greater offense of second

degree murder by asking the jury to find whether Sanders recklessly caused Hill’s death by

kicking her instead of by kicking her and strangling her. State v. Sanders, 522 S.W.3d 212, 218-

19 (Mo. banc 2017).

8 Sanders then filed a pro se Rule 29.15 motion. Appointed counsel timely filed an

amended motion, which asserted, inter alia, that Sanders had received ineffective assistance of

counsel due to his trial counsel’s actions in (1) failing to request a “castle doctrine” instruction

based on section 563.031.2(2); (2) failing to request a self-defense instruction based on section

563.031.3; and (3) failing to request a “correct” lesser-included offense instruction. An

evidentiary hearing was held in which Sanders’s trial counsel testified. Following the

evidentiary hearing, the motion court issued a judgment denying relief on his claims. Following

a timely motion to amend filed by Sanders, the trial court issued an amended judgment which

again denied relief on Sanders’s claims.

Sanders now appeals to this court.

Standard of Review

We review a motion court’s judgment denying relief on a Rule 29.15 postconviction

motion to determine whether the motion court’s findings and conclusions are clearly erroneous.

Rule 29.15(k); Meiners v. State, 540 S.W.3d 832, 836 (Mo. banc 2018). A judgment is clearly

erroneous only if we are “left with a definite and firm impression that a mistake has been made.”

Meiners, 540 S.W.3d at 836 (citation omitted). “The movant has the burden of proving all

allegations by a preponderance of the evidence.” Id.; Rule 29.15(i).

To be entitled to postconviction relief based on ineffective assistance of trial counsel, the

movant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687

(1984). The movant must establish that (1) counsel’s performance was deficient, and (2) the

deficient performance prejudiced the defendant. Id. If a movant makes an insufficient showing

on either prong of the Strickland test, the movant’s claim of ineffective assistance of counsel

must be denied, and it is unnecessary to address the other prong. Id. at 697 (“If it is easier to

9 dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.”).

To establish that counsel’s performance was deficient, the movant must show “that

counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. The

movant must overcome the “strong presumption that trial counsel’s conduct was reasonable and

effective.” Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019) (quoting Davis v. State, 486

S.W.3d 898, 906 (Mo. banc 2016)). To overcome this presumption, “a movant must identify

specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide

range of professional competent assistance.” Id. “The question in an ineffective assistance claim

is not whether counsel could have or even, perhaps, should have made a different decision, but

rather whether the decision made was reasonable under all the circumstances.” Johnson v. State,

406 S.W.3d 892, 901 (Mo. banc 2013) (quoting Henderson v. State, 111 S.W.3d 537, 540 (Mo.

App. W.D. 2003)).

The movant must also “affirmatively prove prejudice.” Strickland, 466 U.S. at 693. To

do so, the movant must establish “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Hosier, 593 S.W.3d at 81 (quotation omitted).

Analysis

Sanders raises three points on appeal, each of which contends that the motion court erred

in overruling a claim of ineffective assistance of counsel. In his first point, he argues that the

motion court erred in denying his claim of ineffective assistance of counsel, which was based on

his counsel’s failure to request a “castle doctrine” instruction based on section 563.031.2(2). In

10 his second point, he argues that the motion court erred in denying relief on his claim of

ineffective assistance of counsel, which was based on his counsel’s failure to request an

instruction that included language based on section 563.031.3 regarding the lack of a duty to

retreat before using force in self-defense. In his third point, he argues that the motion court erred

in denying relief on his claim of ineffective assistance of counsel, which was based on counsel’s

failure to submit a “correct” lesser-included offense instruction for involuntary manslaughter.

Point One

In his first point on appeal, Sanders contends that the motion court clearly erred in

denying his claim of ineffective assistance of counsel, which was based on his counsel’s failure

to request a “castle doctrine” self-defense instruction based on section 563.031.2(2).

At the time of the events giving rise to the charged offense, the use of physical force in

self-defense was justified in certain circumstances delineated in section 563.031. Generally, a

person was authorized to “use physical force upon another person when and to the extent he or

she reasonably believes such force to be necessary to defend himself or herself . . . from what he

or she reasonably believes to be the use or imminent use of unlawful force by such other

person[.]” § 563.031.1. An exception exists when the person claiming self defense was the

initial aggressor, in which case, such person must first withdraw from the encounter and

effectively communicate such withdrawal to the other person, who persists in continuing the

incident with the use or threatened use of unlawful force. § 563.031.1(1)-(1)(a). The use of

deadly force in self-defense is more limited. As relevant to this appeal, section 563.031.2

provides:

2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:

11 (1) He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony; [or]

(2) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person[.]

Section 563.031.2(1) is the provision that generally governs the use of deadly force in

self-defense. Section 563.031.2(2) is a codification of what has long been commonly referred to

as the “castle doctrine.” State v. Straughter, 643 S.W.3d 317, 321 (Mo. banc 2022).

Under the castle doctrine, a person need not face death, serious physical injury or any forcible felony to respond with deadly force. Section 563.031.2(2). Rather, Missouri’s castle doctrine provides that a person is justified in using deadly force “to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person” [when] “[s]uch force is used against a person who unlawfully enters, remains after unlawfully entering or attempts to unlawfully enter a dwelling, residence, or a vehicle lawfully occupied by such person.” Sections 563.031.1, 563.031.2(2).

Id. at 321-22.

At trial, Sanders argued that he used force in self-defense with respect to the charged

conduct of kicking Hill when Hill threatened him with a knife and robbed him. With respect to

the charged conduct of strangling Hill, Sanders’s defense was that he did not engage in that

conduct. The jury was instructed on general self-defense based on section 563.031.1. The jury

was also instructed on the use of deadly force in self-defense based on section 563.031.2(1). The

instruction provided that his use of force was justifiable and in lawful self-defense if Sanders was

determined not to be the initial aggressor, and “he used only such force as reasonably appeared to

be necessary to defend himself,” or, if Sanders was not the initial aggressor, and he “reasonably

believed that the use of deadly force was necessary to protect himself from death or serious

physical injury from the acts of stabbing him or the commission of robbery by Sherilyn Hill[.]”

12 The jury found beyond a reasonable doubt that Sanders’s use of force was not in lawful self-

defense, meaning that the jury either found that he was the initial aggressor in the incident, or

that Sanders used more force than reasonably appeared necessary to defend himself, or that

Sanders used deadly force but did not reasonably believe that the use of deadly force was

necessary to protect himself from death or serious physical injury from stabbing or from being

robbed by Hill.

In his amended Rule 29.15 motion, Sanders alleged that his counsel was ineffective for

failing to request a second self-defense instruction based on section 563.031.2(2). He alleged

that there was evidence that Hill lied to Sanders about her purpose in going to his motel room,

and that Hill unlawfully entered his motel room by agreeing to “exchange crack for sex” while

“her actual purpose was to rob him of his crack and money and never have sex with him.”

Sanders argued that case law regarding what constitutes “unlawfully entering” for purposes of

burglary should apply equally to the definition of “unlawful entry” for the castle doctrine, such

that when consent to enter a dwelling “is obtained through deception or artifice, the entry is

considered unlawful.” See State v. McGinnis, 317 S.W.3d 685, 687 (Mo. App. W.D. 2010).

Accordingly, Sanders alleged that the evidence supported an instruction based on section

563.031.2(2), which authorizes the use of deadly force in self-defense in less restrictive

circumstances than section 563.031.2(1) when used by an occupant against a person who

unlawfully enters or remains after unlawfully entering a dwelling.5 He further alleged that his

trial counsel provided an unconstitutionally deficient performance in not requesting such an

5 There is no dispute in this matter that Sanders’s motel room would meet the statutory definition of “dwelling.”

13 instruction, and that, had such an instruction been given, there was a reasonable probability of an

acquittal.

The motion court determined that Sanders failed to establish that his trial counsel’s

performance was deficient. The motion court found that there was no evidence at trial to support

a castle doctrine defense. Thus, the motion court concluded that counsel could not be deemed

ineffective for failing to request an instruction that lacked evidentiary support. With respect to

prejudice, the motion court determined that there was no reasonable probability that the jury

would have returned a different verdict had the jury been given the second self-defense

instruction.

Sanders argues that the motion court clearly erred by concluding that his counsel’s

performance was not deficient. Specifically, he contends that the motion court failed to view the

evidence in the light most favorable to the defendant with respect to whether the evidence

supported the submission of the instruction. However, even assuming that the motion court erred

in failing to view the evidence in the light most favorable to Sanders, the motion court’s

conclusion, that Sanders failed to establish his counsel’s performance was deficient under

Strickland, is not clearly erroneous. We “may affirm the judgment on any legal ground

supported by the record if the motion court arrived at the correct result.” Kelley v. State, 618

S.W.3d 722, 735 (Mo. App. W.D. 2021) (quoting Greene v. State, 332 S.W.3d 239, 246 (Mo.

App. W.D. 2010)). In this matter, it was not error for the motion court to conclude that

Sanders’s counsel was not ineffective for failing to request an instruction which was not

supported by the evidence. Moreover, Sanders failed to establish that his counsel’s performance

“fell outside the wide range of professional competent assistance.” Hosier, 593 S.W.3d at 81.

14 In determining whether a self-defense instruction is warranted in a case, “the evidence is

viewed in the light most favorable to the defendant.” State v. Whitaker, 636 S.W.3d 569, 574

(Mo. banc 2022) (quotation omitted). A self-defense instruction is warranted “when substantial

evidence is adduced to support it, even when that evidence is inconsistent with the defendant’s

testimony[.]” Id. “If the evidence tends to establish the defendant’s theory, or supports differing

conclusions, the defendant is entitled to an instruction on it.” Id. In conducting this inquiry, a

court cannot “supply missing evidence” or draw “unreasonable, speculative, or forced

inferences.” See State v. Bruner, 541 S.W.3d 529, 538 (Mo. banc 2018).

For the evidence to support the submission of an instruction modeled after section

563.031.2(2), it was necessary for the evidence at trial to support the finding that Hill made an

unlawful entry into Sanders’s motel room. For purposes of Chapter 563, RSMo, “unlawfully

enter” was defined as follows: “a person unlawfully enters in or upon premises or private

property when he or she enters such premises or private property and is not licensed or privileged

to do so. . . .” § 563.011(9). “Remain after unlawfully entering” was defined as “to remain in or

upon premises after unlawfully entering as defined in this section[.]” § 563.011(7).

All of the evidence in the record indicated that Hill had Sanders’s permission to be in the

motel room. In asserting that Hill’s entry was nevertheless unlawful, Sanders argues that

burglary cases have held that, when consent to enter a dwelling is obtained through deception,

the entry is unlawful. See State v. Thomas, 70 S.W.3d 496, 502-03, 509 (Mo. App. E.D. 2002)

(sufficient evidence of unlawful entry where burglary defendant requested to use phone of

occupant and then hit occupant in the head and choked her until she died); McGinnis, 317

S.W.3d at 687-88 (sufficient evidence of unlawful entry where burglary defendant who had

murdered his friend earlier in the night entered home of friend, lied to friend’s wife about why he

15 was there, then raped friend’s wife). Sanders asserts that these cases determining what

constitutes an unlawful entry for purposes of the burglary statute (§ 569.160) should apply

equally to determining when an unlawful entry has been made for purposes of section

563.031.2(2).6

We reject Sanders’s contention that there was evidence establishing that Hill made an

unlawful entry into Sanders’s motel room. All of the evidence indicated that, although Sanders

paid for the room, he obtained the room for the joint use of Hill and himself. Sanders’s reliance

on case law regarding what constitutes an unlawful entry for purposes of burglary is misplaced.

The cases he cites are factually inapposite. This is not a case where Sanders was occupying a

dwelling to which Hill then sought entry through deception. Rather, Sanders and Hill formed the

plan to rent a motel room together, went to get the motel room together “to go party,” entered the

motel room together, and then jointly used the motel room together to ingest crack cocaine while

sharing the utensils needed to ingest the crack cocaine. Moreover, although Sanders contends

that Hill gained entry to the motel room by deceptively agreeing to “exchange crack for sex,” the

evidence indicates that an agreement to “exchange crack for sex” was not made until after Hill,

Sanders and three other people had already entered the motel room. Sanders’s arguments with

respect to Hill’s entry into the motel room seek to transform the castle doctrine from a doctrine

that provides a broader authorization of the use of force in self-defense against intruders into a

doctrine which provides the same authorization of the use of force against invited guests due to

arguments or altercations that may later occur inside a dwelling. All of the evidence indicates

6 Chapter 569 provided a definition for “enter unlawfully or remain unlawfully.” Section 569.010(8) provided: “a person ‘enters unlawfully or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so. . . .”

16 that Hill had permission to enter the motel room and that she was thus licensed or privileged to

enter. Her entry was not unlawful. See State v. Kendrick, 550 S.W.3d 117, 124 (Mo. App. W.D.

2018).

But even assuming that there was sufficient evidence to present a question of fact

regarding whether Hill’s entry was unlawful, Sanders’s counsel’s performance did not fall below

an “objective standard of reasonableness” as required by Strickland, 466 U.S. at 688, or indicate

that his counsel “was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id.

at 687. Under the circumstances presented to counsel at trial, it was far from clear that Sanders

would be entitled to a castle doctrine instruction. Sanders essentially asserts that a reasonably

competent counsel would have investigated case law for other offenses (burglary), would have

attempted to extend that case law to a completely different statute (self-defense) under

significantly different circumstances in a novel way, would have exerted significant time trying

to convince the trial court that the case law on other subjects should be extended to Sanders’s

situation despite obvious factual distinctions between his situation and the burglary cases cited in

this appeal, and then would have spent time arguing and convincing a jury regarding a tenuous at

best factual issue for which there was little evidence (whether Hill’s permissive entrance into

Sanders’s motel room was in fact unlawful). In this matter, instead of completing all of those

steps, his counsel made the reasonable decision to argue that Sanders used force in self-defense

when he had a knife to his neck and was being robbed. Although a castle doctrine defense, if

submissible, and if counsel had elected to go that route, would have provided a broader

authorization of the use of deadly force, Sanders’s counsel ably presented arguments regarding

self-defense that also encompassed the use of deadly force and legitimately could have led to his

acquittal had the jury believed his testimony. The jury ultimately found Sanders guilty of second

17 degree murder. However, “the distorting effects of hindsight” have little bearing on whether

counsel’s performance was unconstitutionally deficient. Id. at 689. “The question in an

ineffective assistance claim is not whether counsel could have or even, perhaps, should have

made a different decision, but rather whether the decision made was reasonable under all the

circumstances.” Johnson, 406 S.W.3d at 901. Sanders failed to overcome the presumption that

his counsel’s performance fell outside “the wide range of reasonable professional assistance[.]”

Strickland, 466 U.S. at 689. We are not persuaded that, in light of “the strong presumption of

reliability,” the result of Sanders’s trial “is unreliable because of a breakdown in the adversarial

process[.]” See id. at 696.

Further, even if counsel provided a deficient performance (which we do not find), the

motion court’s determination that Sanders had failed to establish prejudice under Strickland is

not clearly erroneous. It was not clearly erroneous for the motion court to conclude that Sanders

had failed to establish a reasonable likelihood that the jury would have acquitted him of second

degree murder if it had been instructed pursuant to section 563.031.2(2).

Sanders argues at length that the motion court applied the wrong standard in assessing

prejudice. Sanders’s arguments in this respect relate to a paragraph of the judgment in which the

motion court stated that Sanders failed to show that the outcome would have been different.

However, in the following sentence, the motion court elaborated: “There is no reasonable

probability the jury would have returned a different verdict.” Later, the motion court’s judgment

stated that the refusal to submit a self-defense instruction based on the castle doctrine was “not

outcome determinative.”

Sanders argues that, in Deck v. State, 68 S.W.3d 418 (Mo. banc 2002), the Missouri

Supreme Court reaffirmed the distinction between the showing of prejudice necessary to justify

18 reversal with respect to plain error on direct appeal and the showing required under Strickland,

such that a determination of no manifest injustice on direct appeal is not dispositive of the

Strickland prejudice inquiry. See id. at 427-28 (noting that Strickland rejected an outcome

determinative test). The specific “outcome-determinative” test that Strickland rejected, however,

was one which would have placed the burden on the defendant to establish that “counsel’s

deficient conduct more likely than not altered the outcome in the case.” Strickland, 466 U.S. at

693. It was this “outcome-determinative standard” that Strickland rejected, id., and which Deck

recognized Strickland rejected. Deck, 68 S.W.3d at 427.

However, after Deck, Missouri Courts have often used the descriptor “outcome

determinative” to describe the showing of prejudice necessary to justify reversal, even when

describing the showing of prejudice on direct appeal with a test similar to the test prescribed by

Strickland. See, e.g., State v. Johnson, 207 S.W.3d 24, 42 (Mo. banc 2006) (“A finding of

outcome-determinative prejudice expresses a judicial conclusion that the erroneously admitted

evidence so influenced the jury that, when considered with and balanced against all evidence

properly admitted, there is a reasonable probability that the jury would have acquitted but for the

erroneously admitted evidence.”). Courts have at times described the requisite showing of

prejudice on direct appeal as such even though Deck makes clear that “[t]he standard for finding

prejudice in the context of preserved error [on direct appeal] is lower than the standard for

finding error under Strickland, and both are lower than the plain error standard [on direct

appeal].” Deck, 68 S.W.3d at 427 n.5.

In this matter, the motion court accurately defined the requisite showing of prejudice

under Strickland, stating: “In order to show prejudice, movant must show that there is a

reasonable probability that, absent the alleged error, the results of the proceeding would have

19 been different.” (emphasis in original). The motion court further stated, correctly, that a

reasonable probability is a probability sufficient to undermine confidence in the outcome of the

proceeding. When specifically addressing Sanders’s claim of ineffective assistance, the motion

court stated: “Notwithstanding trial counsel’s performance, Movant has failed to present any

evidence that, had this second self-defense instruction been given, the outcome would have been

different. There is no reasonable probability the jury would have returned a different verdict.”

(emphasis added). Although the motion court described the Strickland showing of prejudice as

outcome determinative, there is no indication that the motion court deviated from applying the

standard set forth in Strickland or that the motion court applied the standard which Strickland

rejected. Despite the use of the descriptor “outcome determinative,” it is not the descriptor

utilized but the standard actually applied that determines whether the court applied the wrong

standard. Here, the record indicates the motion court applied the standard Strickland prescribes.

Accordingly, we reject Sanders’s contention that the motion court applied the wrong standard in

assessing prejudice under Strickland.

In determining whether a movant has sufficiently established a reasonable probability of

a different outcome, a court “must consider the totality of the evidence” before the jury. 466

U.S. at 696. Strickland instructs courts to accept as true the factual findings that will have been

unaffected by the asserted error, and consider the potential effect of the asserted error on the

remaining findings. Id. at 696-97.

In this matter, a number of the jury’s findings were unaffected by the alleged error of

counsel in submitting the self-defense instruction based on section 563.031.2(1) rather than one

based on section 563.031.2(2). The jury found (1) that Sanders “caused the death of Sherilyn

Hill by kicking her and strangling her, and” (2) that Sanders “was aware that his conduct was

20 practically certain to cause the death of Sherilyn Hill, or that it was [his] purpose to cause serious

physical injury to Sherilyn Hill,” and (3) that Sanders “did not do so under the influence of

sudden passion arising from adequate cause,” and (4) that Sanders “did not act in lawful self-

defense as submitted” in the self-defense instruction submitted at trial. Only the fourth finding

would have potentially been affected by an additional self-defense instruction. Thus, Strickland

instructs us to accept as true the jury’s findings that Sanders knowingly caused Hill’s death by

kicking her and strangling her.

The obvious problems with Sanders’s assertions that he was prejudiced by his counsel’s

failure to submit a castle doctrine instruction are (1) that his defense to the conduct of strangling

Hill was that he did not engage in such conduct rather than that he strangled Hill to defend

himself, and (2) that there is no evidence in the record indicating that he strangled Hill at a time

while he was under a reasonable belief that Hill was using or would imminently use force.

First, Sanders testified that he never strangled Hill. The jury found that he knowingly

caused Hill’s death by kicking her and strangling her. The jury’s finding that he knowingly

caused Hill’s death by strangling her would not be affected by a castle doctrine instruction.

Second, all of the evidence at trial indicated that Sanders kicked Hill until Hill was

unconscious. There was no evidence that Hill ever regained consciousness while in Sanders’s

presence. Thus, there was no evidence that Hill ever posed a threat to Sanders after she fell

unconscious. Although the castle doctrine may justify the use of deadly force in self-defense

under broader circumstances than section 563.031.2(1), the castle doctrine “does not apply if the

threat of unlawful force has subsided[.]” Straughter, 643 S.W.3d at 323. Sanders advances no

theories as to how the jury was likely to find that an unconscious Hill continued to pose a threat

of unlawful force.

21 Sanders cites to numerous cases with completely different factual scenarios in which

courts have previously found prejudice based on the failure to give a self-defense instruction.

We find these cases almost entirely inapposite. The flaw with Sanders’s attempts to establish

prejudice are that he fails to adequately address the evidence at his trial and advance with any

specificity or persuasive effect a theory as to how a jury was reasonably likely to find that he

kicked and strangled Hill in self-defense if instructed differently. The motion court found that

Sanders failed to establish a reasonable probability of a different verdict if the jury had been

instructed on the castle doctrine. This conclusion is not clearly erroneous.

Point one is denied.

Point Two

In his second point on appeal, Sanders argues that the motion court erred in overruling his

claim of ineffective assistance of trial counsel which alleged that his counsel was ineffective by

failing to request a self-defense instruction that reflected the language of section 563.031.3,

which would have instructed the jury that Sanders had no duty to retreat before using force to

defend himself.

With respect to counsel’s performance, the motion court found that Sanders’s claim was

“seemingly based” on his previous argument that a self-defense instruction based on the castle

doctrine should have been submitted. In finding counsel’s performance was not deficient, the

motion court found that his “no duty to retreat” claim of ineffective assistance failed for the same

reason as did his castle doctrine claim of ineffective assistance – because there was no evidence

to support an instruction based on the castle doctrine. The motion court also found that Sanders

failed to establish prejudice under Strickland because there was no reasonable probability that

22 the submission of an instruction modeled after section 563.031.3 would have resulted in a

different outcome.

Sanders argues that the motion court erred in finding that his ineffective assistance claim

based on section 563.031.3 was a rehash of his ineffective assistance claim based on section

563.031.2(2). Sanders asserts that section 563.031.2(2) applies when “force is used against a

person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter

a dwelling, residence, or vehicle lawfully occupied by such person[.]” That is, to be applicable,

section 563.031.2(2) requires that an unlawful entry or attempt at unlawful entry has been made.

Sanders points out that the language of section 563.031.3 contains no language indicating that

the person against whom force is used must be an unlawful entrant or attempted entrant. Thus,

Sanders asserts that section 563.031.3 applies to a broader set of circumstances, and, therefore,

an instruction based on 563.031.3 could be warranted even if an instruction based on section

563.031.2(2) was not warranted. Although it would appear that Sanders is correct that section

563.031.3 does apply to a broader set of circumstances than does section 563.031.2(2), it is

unnecessary to address the motion court’s conclusion with respect to counsel’s performance

because the motion court’s conclusion with respect to Strickland’s prejudice inquiry is not

clearly erroneous. See Hounihan v. State, 592 S.W.3d 343, 348 n.3 (Mo. banc 2019) (insufficient

showing on either prong of Strickland renders evaluation of other prong unnecessary).

The motion court did not clearly err in determining that Sanders failed to establish a

reasonable probability that an instruction modeled after section 563.031.3, had it been given,

would have resulted in a different outcome. Such an instruction would not have significantly

altered the evidentiary picture before the jury. See Strickland, 466 U.S. at 695-96 (“Some errors

will have had a pervasive effect on the inferences to be drawn from the evidence, altering the

23 entire evidentiary picture, and some will have had an isolated, trivial effect.”). That is, even had

the instruction been given, it would not have given the jury any additional basis for concluding

that Sanders reasonably believed that he needed to kick and strangle Hill to death. In this matter,

the jury was presented with differing accounts of what occurred in the motel room in the form of

testimony from Brown and Sanders. Brown testified that Sanders attacked Hill at a time when

Hill’s back was turned to Sanders and when Hill was not holding a knife. Sanders testified that

he used force to defend himself when Hill held a knife to his throat and cut him. In either

scenario, there is no indication that an instruction regarding the lack of duty to retreat was likely

to have swayed the jury. If Brown’s account of events were believed, then the lack of a duty to

retreat would not be expected to factor in the determination, as Brown testified that Hill was

smoking a pipe by a mirror when Sanders approached her from behind and repeatedly kicked her.

Conversely, if Sanders’s account of events were believed, then there is no reason to believe that a

jury would think that Sanders was required to retreat before defending himself from a person

holding a knife to his neck who had just cut him and robbed him, in that the jury was instructed

that force may be used to the extent the actor reasonably believes it necessary to defend himself

from what he reasonably believes to be the use of unlawful force by another person.

To the extent that Sanders argues that the lack of a “no duty to retreat” instruction

allowed the State to argue in closing that Sanders had a duty to retreat before using force in self-

defense, we disagree. The State’s argument referenced by Sanders did not relate to the duty to

retreat before using force, but instead related to the reasonableness of the force exerted by

Sanders, and how it was unnecessary for Sanders to exert so much force; i.e., that the outcome

would perhaps have been different if Sanders had used only reasonable force instead of

repeatedly and unnecessarily kicking Hill:

24 And here’s the deal. If she waves the knife and if he turns around and maybe he just punches her in the face and she backs up and he leaves, we aren’t here. Because he acted in lawful self-defense and he had a right to do that.

But then you kick her to the floor and the knife is gone. And then you keep kicking and you keep coming because your ego’s been wounded because some woman has put a knife in your face. And then you kick her again and again and again. And not just on her head. And not just in her face. But all over her body.

This language in the State’s argument relates to the reasonableness and necessity of the

continued use of force rather than suggesting that Sanders was required to retreat before an initial

use of force in self-defense.

Moreover, the jury found that Sanders knowingly caused Hill’s death by kicking her and

strangling her. There was no evidence before the jury that Sanders strangled Hill in self-defense.

Sanders testified that he never engaged in such conduct. Nevertheless, the jury found that

Sanders did knowingly cause Hill’s death by strangling her. This finding indicates that the jury

inferred that Sanders did so while Hill was unconscious, given that there was no evidence

whatsoever that Hill regained consciousness after being kicked repeatedly by Sanders. Whether

or not a “no duty to retreat” instruction had been given, Sanders would still not have been

justified in tying a bed-sheet in a knot around the neck of an unconscious Hill and using it to

knowingly cause her death by strangulation. This finding would be entirely unaffected by an

instruction regarding the lack of a duty to retreat. The motion court concluded that Sanders

failed to establish a reasonable probability of a different outcome if the jury had been instructed

based on section 563.031.3. This conclusion was not clearly erroneous.

Point Two is denied.

25 Point Three

In his third point on appeal, Sanders argues that the motion court erred in overruling his

claim of ineffective assistance of counsel, which alleged that counsel was ineffective by failing

to submit a “correct” lesser-included offense instruction for the offense of involuntary

manslaughter.

At trial, the jury was instructed on second degree murder and voluntary manslaughter.

The verdict director for second degree murder instructed the jury to determine whether Sanders

knowingly caused Hill’s death by kicking her and strangling her; whether he did so without the

influence of sudden passion; and whether he did not act in lawful self-defense. The verdict

director for voluntary manslaughter asked the jury to determine whether Sanders knowingly

caused Hill’s death by kicking her and strangling her; and whether he did not act in lawful self-

defense. Trial counsel proffered an instruction for involuntary manslaughter, which would have

required the jury to determine whether Sanders recklessly caused Hill’s death by kicking her.

The proffered instruction, which did not require the jury to determine whether Sanders caused

Hill’s death by kicking her and strangling her, was rejected by the trial court.

The jury found Sanders guilty of second degree murder. The trial court sentenced

Sanders to life imprisonment. On direct appeal, Sanders argued that the trial court erred in

rejecting his proffered instruction on involuntary manslaughter. The Missouri Supreme Court

determined that involuntary manslaughter is a “nested” lesser-included offense of second degree

murder, such that the trial court would have been required to give “a timely and properly

requested instruction for involuntary manslaughter.” State v. Sanders, 522 S.W.3d 212, 217 (Mo.

banc 2017). The Court then determined that the trial court did not err in refusing Sanders’s

proffered involuntary manslaughter instruction because his proffered involuntary manslaughter

26 instruction impermissibly deviated from the conduct charged in the greater offense of second

degree murder by asking the jury to find whether Sanders recklessly caused Hill’s death by

kicking her instead of by kicking her and strangling her. Id. at 218-19.7

In his amended Rule 29.15 motion, Sanders alleged that he received ineffective assistance

of counsel when his trial counsel failed to request and submit a “correct” involuntary

manslaughter instruction, and that he was prejudiced by his counsel’s performance because there

was a reasonable probability of a different outcome had a proper involuntary manslaughter

instruction been provided. The amended motion pointed out that on direct appeal it was

determined that the trial court would have been required to give a proper involuntary

manslaughter instruction and that counsel’s proffered instruction was determined to be improper.

The amended motion further alleged that trial counsel lacked a reasonable strategy in submitting

the improper instruction based on counsel’s testimony at the evidentiary hearing, and because no

reasonable trial strategy would justify counsel’s submission of an improper instruction.

At the evidentiary hearing, counsel testified that she had offered an involuntary

manslaughter instruction, and that she was aware that the Missouri Supreme Court had found the

instruction she offered to be erroneous during Sanders’s direct appeal. Counsel was then

questioned regarding her strategy with respect to the submission of the instruction:

Q. Did you have any strategic reason for not offering a lesser included instruction that matched the charging instrument and greater instruction?

A. During the jury instruction conference, there was a conference that took place off the record with the judge and [the prosecutor] and myself, along with my co- counsel. There was lengthy debate about whether we could submit the involuntary manslaughter instruction. Judge Messina at the time I believe would only allow us

7 Two judges dissented from the majority opinion, contending that the proffered instruction was proper, and that the trial court erred in failing to instruct the jury on the nested lesser-included offense of involuntary manslaughter. Sanders, 522 S.W.3d at 219 (Draper & Stith, J.J., dissenting).

27 to submit it that way because she did not believe that strangulation could be reckless, and thus we could not submit it that way.

Q. Did you have any reason for not also submitting it including both the strangulation and the kicking?

A. I don’t remember. I don’t think so.

Following the evidentiary hearing, the motion court determined that Sanders’s trial

counsel was not ineffective and that Sanders was not prejudiced. In particular, the motion court

found that counsel had offered the involuntary manslaughter instruction that Sanders contends

counsel should have offered (based on the conduct of kicking and strangulation), but that the trial

court rejected the instruction. Citing Harrell v. State, 429 S.W.3d 452 (Mo. App. S.D. 2014), the

motion court noted that claims of trial court error are generally not cognizable in Rule 29.15

motions and that such motions “cannot be used to obtain review of matters which were or should

have been raised on direct appeal.” Id. at 456-57. The motion court then concluded that,

because counsel had offered a proper involuntary manslaughter instruction which was rejected,

and because no claim with respect to that trial court error was made on appeal, Sanders had

failed to establish that his counsel was ineffective or that he was prejudiced.

The motion court’s findings and conclusions are not clearly erroneous. We are not left

with a definite and firm impression that the motion court was mistaken in finding that counsel

did request an involuntary manslaughter instruction based on the conduct of kicking and

strangling. As Sanders’s claim of ineffective assistance is based on counsel’s failure to request

an instruction that the motion court found counsel requested, the motion court did not clearly err

in determining that Sanders failed to establish that his counsel’s performance was deficient.

Although counsel’s testimony at the hearing indicated that the instruction based on the conduct

of kicking and strangling was requested during an off-the-record instruction conference, this

28 testimony did support the trial court’s finding that counsel requested the instruction, which the

trial court rejected. Although counsel failed to make a record of this request, “[c]laims for post-

conviction relief based on trial counsel’s failure to adequately preserve issues for appeal are not

cognizable under Rule 29.15.” Glasgow v. State, 218 S.W.3d 484, 489 (Mo. App. W.D. 2007)

(quotations omitted). For an error of trial counsel to even state a cognizable claim of ineffective

assistance of trial counsel, a movant must allege that trial counsel’s error deprived the movant of

a fair trial. McLaughlin v. State, 378 S.W.3d 328, 355 (Mo. banc 2012).

In this matter, Sanders alleged that he was deprived of a fair trial due to counsel’s failure

to request an instruction, which the motion court found was requested by his counsel, albeit off-

the-record. Thus, the motion court did not clearly err in determining that Sanders’s counsel’s

performance was not deficient for failing to take an action that the motion court found trial

counsel did, in fact, take. Although counsel did not make a record of offering that instruction,

and this omission limited the grounds which could have been raised on direct appeal, the

“preservation of an issue for appeal cannot affect the fairness of the trial; preservation only

affects rights and standards on appeal.” McCauley v. State, 380 S.W.3d 657, 662 (Mo. App. S.D.

2012) (quoting Johnson v. State, 283 S.W.3d 279, 282 (Mo. App. S.D. 2009)). With respect to

the fairness of Sanders’s trial, the motion court found that his trial counsel did perform the act

that Sanders asserts should have been performed. Counsel’s failure to make a proper record of

that act did not affect the fairness of Sanders’s trial, but instead related to potential grounds for

appeal. Thus, to the extent that his claim relates to counsel’s failure to make a record of the

request for the instruction, such a claim does not relate to the fairness of his trial and is not

cognizable in a Rule 29.15 proceeding. The motion court did not clearly err in finding that

Sanders failed to establish that his counsel’s performance was unconstitutionally deficient.

29 Point three is denied.

Conclusion

The judgment is affirmed.

Thomas N. Chapman, Judge

All concur.