In the Missouri Court of Appeals Western District
ERICK E. BECKETT, Appellant, WD85222 OPINION FILED: July 18, 2023
v.
STATE OF MISSOURI, Respondent.
Appeal from the Circuit Court of Cass County, Missouri The Honorable William B. Collins, Judge
Before Division Four: Gary D. Witt, Chief Judge, Presiding, Lisa White Hardwick, Judge, Kevin D. Harrell, Special Judge
Erick Beckett ("Beckett") appeals the judgment of the Circuit Court of Cass County,
Missouri ("motion court"), denying his amended motion to vacate, set aside, or correct the
judgment and sentence, pursuant to Rule 29.15, 1 following an evidentiary hearing. On
1 All rule references are to Missouri Court Rules (2021), unless otherwise indicated. appeal, Beckett argues the motion court erred in denying his amended motion because
Beckett's trial counsel ("trial counsel") was ineffective in failing to investigate and call at
trial a firearms expert witness to support Beckett's defense. We reverse the judgment of
the motion court, vacate the conviction and sentence, and remand for a new trial.
Factual and Procedural Background 2
On February 23, 2013, Beckett called 911 to report that he had shot his wife ("Victim") a couple of times at their home. Police responding to the call found Victim lying on the bed in the master bedroom with her head in a pool of blood. The police also found a Smith and Wesson handgun (containing a live cartridge) and two more cartridges (one live and one spent) on the bed near Victim's head. Emergency response personnel initiated life- saving procedures at the scene, but Victim was pronounced dead shortly after arriving at the hospital. Beckett was indicted on two charges--murder in the first degree, [section 565.020, 3] (count I) and armed criminal action, [section 571.015,] (count II). * * *
At trial, Beckett testified that he routinely carried his handgun with him around the house and that the gun was always within his or Victim's reach. In the early morning hours of February 23, 2013, after a conflict with Victim that ended in their bedroom, Beckett went to clear and secure the handgun, which Victim had dropped on the bed, but when Beckett jerked the gun off the bed, it fired in his hand. He grabbed the handgun again, and it kicked and fired again. Beckett called 911 and stayed with Victim until the police arrived, and Beckett was taken into custody. He testified that he did not mean to shoot Victim and that it was an accident. 4 The medical examiner who performed the autopsy on Victim testified at Beckett's trial on behalf of the State. The medical examiner found two gunshot entrance wounds--one on Victim's right forehead and the other on the left side of her neck--and one exit wound on her back from the bullet that entered her neck. Both shots were fired from fewer than three feet away from Victim. The shot to Victim's forehead caused extensive damage to her brain and was fatal. The medical examiner declared the cause of death to be
2 The factual background is taken in large part from this Court's opinion on direct appeal without further attribution. State v. Beckett, 540 S.W.3d 881 (Mo. App. W.D. 2018). 3 All statutory references are to Revised Statutes of Missouri (2000), as updated by supplement as of February 23, 2013, unless otherwise indicated. 4 Beckett's testimony at trial was consistent with his statement to police the night of the shooting.
2 multiple gunshot wounds and the manner of death to be homicide. He testified that, in cases involving accidental shootings, there is usually a single gunshot wound; after performing more than 4,000 autopsies, he could not recall ever "call[ing] a multiple gunshot wound an accidental matter." A firearm forensic expert, [Kathy May ("May"),] called to testify by the State, said she tested the handgun involved in the shooting and determined that it was functioning properly. She indicated that the gun was equipped with both a trigger safety to prevent the gun from firing accidentally and a firing pin safety. She also testified that, during testing, the gun fired only once per trigger squeeze, and the trigger pull, i.e., the pounds of pressure needed to move the trigger rearward, was eleven pounds. She concluded that, even if picked up by the trigger, the gun would not fire accidentally because the heavy trigger pull acted as a third safety. In addition to eliciting evidence throughout the trial about the two shots, the State emphasized the issue during its closing argument. The prosecutor stated that the fact that Victim was shot twice proved the shooting was intentional. He said, "[t]he truth is two shots equals homicide. Now, two shots is important here. Two shots."
With respect to count I of the indictment, the jury received instructions on lesser
included offenses ranging from murder in the first degree to involuntary manslaughter in
the second degree. The jury found Beckett guilty of first-degree murder and armed
criminal action. Beckett waived jury sentencing, and the trial court sentenced Beckett to
concurrent terms of life without parole and thirty years' imprisonment. This Court affirmed
the judgment of conviction in State v. Beckett, 540 S.W.3d 881 (Mo. App. W.D. 2018).
Beckett filed a motion to vacate, set aside, or correct the judgment and sentence
pursuant to Rule 29.15, and, after a finding that appointed counsel abandoned Beckett by
failing to timely file an amended motion, newly appointed counsel filed a timely amended
motion. As relevant to this appeal, the amended motion alleged that trial counsel was
ineffective in failing to conduct an adequate investigation and failed to present a firearms
expert witness that would testify that the gun at issue was capable of discharging shots
3 accidentally. The motion court conducted an evidentiary hearing at which Beckett, trial
counsel, and a firearms expert, David Kingsbury ("Kingsbury") testified.
Kingsbury did not examine the firearm at issue in this case but relied on the
testimony from the witnesses at trial, the exhibits, and the medical examiner's report to
reach his conclusions. Kingsbury testified that Beckett's trial testimony that he did not
mean to shoot Victim was plausible, and none of the evidence was inconsistent with
Beckett's testimony as to how the shooting occurred. Kingsbury disagreed with the State's
expert witness's trial testimony that the firing of two shots necessarily indicates the
shooting was intentional.
Kingsbury testified that the events leading up to the shooting, as described by
Beckett, in which Beckett and Victim were involved in a domestic dispute involving
alcohol while a gun was present, is a common background scenario often seen in
unintentional shootings. Beckett testified that he and Victim had been in an argument that
evening and twice Victim had placed the loaded gun against his head threatening to shoot
him. When Victim dropped the gun onto the bed and "flopped down", Beckett grabbed the
gun and that is when it discharged twice. Kingsbury testified that the altercation between
Beckett and Victim could have led to a state of stress in Beckett that could have reduced
his fine motor control. Kingsbury concluded that Beckett's account of the first shot was
plausible, in that Beckett could have reached for the loaded weapon on the bed in an attempt
to clear and secure the gun, and in the process, Beckett could have placed his finger on the
trigger as he was grabbing it and exerted enough force on the trigger to unintentionally
4 discharge the weapon. 5 Kingsbury also concluded that Beckett's account of the second
shot was plausible, in that the recoil and sound from the first shot could have led to shock
resulting in an involuntary muscle contraction while Beckett was trying to regain his grip
on the gun, which has been documented to result in unintentional discharges.
Regarding the factors that contribute to unintentional discharges, Kingsbury
testified that trigger travel, meaning the distance the trigger needs to be pulled in order to
release the firing mechanism and discharge the round in the chamber, is an important
consideration. Here, the gun involved in the incident, a Smith & Wesson enhanced Sigma
series, had a shortened trigger pull relative to the original Sigma series. The State's firearm
expert witness, May, did not discuss trigger travel at trial. Although the trigger pull on the
weapon was measured at eleven pounds, Kingsbury testified that Beckett's physical
condition at the time of the shooting could overcome the trigger pull with his index finger
during a gross motor movement which Beckett described. Kingsbury discussed one
particular study which found in testing that 6.25% of involuntary contractions of the trigger
finger met or exceeded twelve pounds.
Kingsbury also reviewed police reports regarding the crime scene, specifically the
location of the spent cartridges or casings, and concluded that the position of the spent
cartridges relative to the mechanics of the weapon were consistent with the weapon being
discharged in a sideways position or horizontal plane during the first shot, which aligns
5 The weapon at issue was a Smith and Wesson semi-automatic handgun. Each time the trigger is pulled a round is fired and the empty casing or spent cartridge from that round is automatically ejected from the gun to the right side and a new round is automatically moved into the chamber firing position. A single round would be fired with each separate pull of the trigger but the gun could be fired as quickly as the trigger is pulled.
5 with Beckett's account that the gun fired while he was picking it up from the bed. With the
gun sideways, the spent cartridge being ejected from the gun would have gone up in the air
rather than sideways, resulting in the spent cartridge landing on the bed (where one of the
spent cartridges was found) rather than off to the side. As the gun discharged the second
time, if it was moved into a vertical position, the spent cartridge from the second round
would have been ejected to the right side, landing to the side of the bed (where another one
of the spent cartridges was found). Further, the distance between the spent cartridges, eight
feet, supports Beckett's testimony that the weapon was in a significantly different position
during the second shot than the first shot. Kingsbury testified that, based on his review of
the evidence, there is nothing that would rule out that this was an unintentional discharge.
Kingsbury also testified that he disagrees with the medical examiner's testimony
that the fact that multiple shots were fired necessarily indicates the shooting was
intentional. Kingsbury testified that the published literature regarding unintentional
discharges establishes that unintentional discharges can involve more than one shot.
Kingsbury also disagreed with May regarding the safety features on the weapon. May
testified that the weapon had three safeties: a mechanical trigger safety, a mechanical firing
pin safety, and the eleven-pound trigger pull acted as a third safety. Kingsbury disagreed
with May that the eleven-pound trigger pull constitutes a safety device. Regarding the
other two mechanical safeties, Kingsbury testified that the safety mechanisms were
designed to keep the weapon from discharging when dropped or hit against a solid surface
and would not prevent an unintentional discharge if the manual safety mechanism was
inactivated first and the trigger was pulled. According to Kingsbury, the safety
6 mechanisms described by May are not designed to prevent unintentional discharges
resulting from the trigger being pulled if the manual safety mechanism is not activated.
Kingsbury did not indicate any expert opinion that the firearm could have
malfunctioned in any way causing the discharge. Kingsbury also testified that nothing in
his findings could rule out the possibility that the discharge of the weapon was intentional.
His expert opinion was that Beckett's testimony as to how the shooting occurred was
plausible. "That is -- that is my central opinion regarding -- my central opinion is that his
account is plausible, that he -- his account describes a scenario in which there was an
elevated risk of unintentional shooting, and that his description accounts for necessary and
sufficient conditions for an unintentional shooting. I've also identified inaccuracies in the
testimony of the medical examiner and the State's firearms expert regarding intent."
Prior to trial, trial counsel requested two continuances to consult with expert
witnesses. In July 2015, trial counsel requested a continuance of the trial date because he
was looking at retaining an expert. Regarding experts, trial counsel stated, "I have already
started the process of sharing some information with those folks. I don't know whether
they are going to give me anything that I am going to want to use, but there are some issues
that I have specific questions about that I am not-- I guess satisfied with the State's
witnesses." Again, in August 2015, trial counsel requested a further continuance to "come
up with some expert information." He stated at that time regarding potential experts, "I am
just looking at two and I have been talking with two, but I don't know whether I am going
to call them yet or not."
7 At the evidentiary hearing, trial counsel testified that he did some research on
firearms during his preparation for trial. He also contacted a local gun shop to discuss the
firearms issues in the case where he spoke to a gunsmith that he had used as an expert in a
prior case. When asked why he stopped his investigation after calling a gun shop, trial
counsel answered, "I don't have a good excuse why or reason why. Yeah. I don't --
certainly, after seeing how the trial played out, I wish I had."
The motion court issued findings of fact, conclusions of law, and judgment denying
Beckett's amended motion. As relevant to this appeal the motion court found that Beckett
failed to present evidence that Kingsbury would have testified at trial regarding accidental
shootings because Kingsbury's testimony described unintentional shootings rather than
accidental shootings. The motion court also found that Kingsbury did not perform any
testing on the firearm that was used in the shooting. Further, the motion court found that
trial counsel's decision not to call a firearms expert was reasonable trial strategy because
trial counsel would not have wanted to put forth another expert who would state that the
gun was operating correctly. And the motion court concluded that Beckett was not
prejudiced because Kingsbury's testimony would not have completely supported the
defense theory that Beckett's gun accidentally discharged. This appeal follows.
Standard of Review
Appellate review of a denial of a Rule 29.15 motion is limited to determining
whether the findings and conclusions of the motion court are clearly erroneous. Rule
29.15(k). The motion court's findings and conclusions are clearly erroneous only if, after
8 a review of the entire record, the appellate court is left with a definite and firm impression
that a mistake has been made. State v. Ervin, 835 S.W.2d 905, 928 (Mo. banc 1992).
9 Analysis
Beckett argues, in a single point relied on, that the motion court clearly erred in
denying his amended motion because trial counsel was ineffective in failing to investigate
and call a firearms expert to testify at trial to support his defense, in that Kingsbury's
testimony supported the claim raised in the amended motion and the defense's theory at
trial; trial counsel's investigation regarding an expert witness was objectively unreasonable;
Kingsbury's testimony would have been admissible at trial; Kingsbury's testimony was not
cumulative to Beckett's testimony at trial; and Beckett was prejudiced by trial counsel's
deficient performance.
In a claim of ineffective assistance of counsel, the movant must show that trial
counsel failed to exercise the customary skill and diligence of a reasonably competent
attorney under similar circumstances, and that counsel's deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish the
performance prong, Beckett must "overcome a strong presumption that [his] counsel
provided competent assistance." Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002).
Prejudice occurs where "there is a reasonable probability that, but for counsel's
unprofessional errors, the results of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694. Beckett must satisfy both the performance prong and the
prejudice prong of the Strickland test in order to prevail on a claim of ineffective assistance
of counsel.
10 Beckett argues that trial counsel was ineffective in failing to investigate a firearms
expert to call as an expert witness at trial. Trial counsel "has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary." Strickland, 466 U.S. at 691. "[A] particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances, applying a heavy measure
of deference to counsel's judgments." Id. While the duty to investigate does not require
counsel to "scour the globe on the off-chance something will turn up," counsel does have
a duty to conduct a reasonable investigation. Johnson v. State, 388 S.W.3d 159, 165 (Mo.
banc 2012).
Here, trial counsel's failure to further investigate a firearms expert was
unreasonable. The defense strategy at trial rested entirely on the argument that Beckett did
not intend to shoot Victim. Beckett testified that Victim had pointed the gun at his head
twice during an argument, and after Victim dropped the gun on the bed, Beckett "darted
[his] hand" and "jerked the gun off the bed." Beckett testified that as he picked up the gun,
it discharged. After it fired once, the gun "kicked in [his] hand and [he] grabbed it to keep
ahold of it to keep from dropping it, and it fired again." Beckett never asserted that the gun
malfunctioned, rather he testified that he pulled the trigger unintentionally each time the
gun discharged. Trial counsel's closing argument highlighted this fact, in which he
conceded that Beckett was an irresponsible gun owner, in that Beckett and Victim routinely
carried the loaded gun around the house with them, but trial counsel argued that the
shooting was an accident and that it was not premeditated. Because trial counsel chose this
strategic defense, it was unreasonable to not investigate a firearms expert to verify the
11 plausibility of Beckett's account of the events of that evening. See Cravens v. State, 50
S.W.3d 290, 295 (Mo. App. S.D. 2001).
Regarding trial counsel's investigation, trial counsel testified at the evidentiary
hearing that he called a local gun shop and "did some research on [his] own," but he did
not investigate a potential witness with Kingsbury's qualifications to discuss unintentional
shootings. When asked why he stopped his investigation after calling a gun shop, trial
counsel answered, "I don't have a good excuse why or reason why. Yeah. I don't --
certainly, after seeing how the trial played out, I wish I had." Further, trial counsel was
aware that the State intended to call a firearms expert, May, to testify, and trial counsel
knew from the discovery that May intended to testify that the evidence supported the State's
argument that the shooting was deliberate. In addition, the discovery showed that the
medical examiner would testify that the discharge of the weapon more than one time
establishes that this was an intentional shooting. A reasonably competent attorney would
have investigated the veracity of May's and the medical examiner's testimony by at least
consulting with another firearms expert. Trial counsel's failure to investigate the
plausibility of Beckett's account and the strength of May's and the medical examiner's
testimony was unreasonable and constitutionally deficient. See id. ("Counsel's failure to
investigate the propriety of obtaining expert witnesses to testify to the distance from which
the shot was fired was unreasonable and fell below the customary skill and diligence of a
reasonably competent attorney.").
To show ineffective assistance by failing to locate and present expert witnesses,
Beckett has the burden to show such experts existed at the time of trial, that they could
12 have been located through reasonable investigation, and the testimony would have
benefitted the defense. State v. Johnson, 968 S.W.2d 686, 696-97 (Mo. banc 1998).
Beckett meets this burden. Kingsbury testified that he has worked as an expert on firearms
and firearms safety and has testified in four other cases on behalf of defendants in Missouri
courts. Trial counsel testified that had he investigated further, he is confident that he would
have applied for and been granted the trial expenses through the public defender's office to
hire a firearms expert witness to testify at trial.
Further, Kingsbury's testimony would have benefitted the defense at trial. As noted
above, Beckett's entire defense was that he did not mean to shoot Victim and that he
unintentionally squeezed the trigger while attempting to grab, secure, and clear the gun.
Kingsbury's testimony would have provided expert witness opinion that Beckett's account
of the incident was plausible, in that unintentional shootings can occur when an individual
is in an excited state and that multiple shots can be fired during an unintentional shooting.
Kingsbury also testified that all of the physical evidence was consistent with Beckett's
statement to the police the day of the shooting and his testimony as to how the shooting
occurred at trial. According to Beckett's testimony, he grabbed the gun following a
domestic dispute with Victim as it lay on its side on the bed. Kingsbury testified that as
Beckett grabbed the gun, he could have exerted enough force on the trigger, while having
reduced fine motor control from his excited state, to fire the gun. Kingsbury's testimony
also supports the defense's theory that the second shot could have unintentionally occurred
due to shock from the recoil and sound of the first shot as Beckett attempted to secure his
grip on the weapon. Kingsbury's testimony included a review of the crime scene,
13 specifically an analysis of the positioning of the spent cartridges, one of which, according
to Kingsbury, was consistent with the gun being fired in a horizontal position. Kingsbury
opined that this is consistent with Beckett's testimony that the gun discharged while he
grabbed it from the bed.
Expert witness testimony could have additionally benefitted Beckett's defense by
refuting testimony from the State's expert witnesses. See Gennetten v. State, 96 S.W.3d
143, 149-50 (Mo. App. W.D. 2003). In Gennetten, this Court held that the proffered
testimony from a witness that trial counsel failed to call at trial would have benefited the
defendant by contradicting the State's witness's testimony. Id. There, the treating physician
of a child who was killed by third-degree burns would have testified that "her burns were
accidentally inflicted and were not consistent with an intentional injury." Id. at 149. This
testimony would have contradicted the State's expert's testimony that the child's autopsy
findings showed that the burns were intentionally inflicted. Id. at 149-50.
Here, similarly, Kingsbury disagreed with the State's expert witnesses on several
key issues, specifically the prevalence of unintentional shootings involving multiple shots
and the safety mechanisms on the gun used in the incident. Contrary to May's testimony,
Kingsbury testified that the safety mechanisms on the Smith and Wesson sigma series
would not have prevented an unintentional shooting as described by Beckett, and he
disagreed with the State's expert that the eleven-pound trigger pull acted as a third safety.
Kingsbury also testified to the importance of trigger travel in an unintentional shooting,
which May's testimony lacked. If believed, this testimony would have aided Beckett in his
defense theory of an unintentional shooting by undermining the State's theory that Beckett
14 intentionally shot Victim. See Gennetten, 96 S.W.3d at 149 ("[The expert's] testimony
would have undermined the State's theory that [defendant] engaged in a pattern of abuse
against [victim] and, as such, would have provided a viable defense to the intent element
of the second[-]degree murder charge.").
Having found that trial counsel's conduct fell below an objective level of
reasonableness, Beckett must next show that this deficiency prejudiced him. Beckett must
show, in the absence of trial counsel's errors, there is a reasonable probability that the result
of the trial would have been different. Strickland, 466 U.S. at 694. "As presented, the
issue is the effect that the expert testimonial evidence would have had on the jury if it had
been presented at trial with regard to guilt of [first] degree murder." Cravens, 50 S.W.3d
at 296. "A person commits the crime of murder in the first degree if he knowingly causes
the death of another person after deliberation upon the matter." Section 565.020. In
making this determination, we must consider the totality of the evidence before us.
Strickland, 466 U.S. at 695. While some factual findings will have been unaffected by
errors, "[s]ome errors will have had a pervasive effect on the inferences to be drawn from
the evidence, altering the entire evidentiary picture, and some will have had an isolated,
trivial effect." Id. at 695-96. "Moreover, a verdict or conclusion only weakly supported
by the record is more likely to have been affected by errors than one with overwhelming
record support." Id. at 696.
Here, Beckett's guilt of the offense of first-degree murder was supported by
testimony from the arriving officers at the scene of the crime, the medical examiner who
performed the autopsy on Victim and testified regarding the anatomical positions of the
15 bullet wounds, and May's testimony regarding the mechanics of the weapon. There were
no eyewitnesses to the shooting other than Beckett. The State's case as to Beckett's act of
pulling the trigger was undisputed, and even Beckett admitted to pulling the trigger during
his testimony. The State's case as to the required mental state for first-degree murder
primarily focused on the mechanics of the weapon, specifically the eleven-pound trigger
pull, multiple shots, and how Beckett's account of the incident was extremely unlikely.
Regarding the jury instructions for the mental state for first-degree murder, the prosecutor
at closing argument stated, "Second, the defendant knew his conduct was practically certain
to cause the death of [Victim]. Now, the practically certain knew his conduct, this knowing
element, it took 11 pounds, ladies and gentlemen, 11 pounds on the trigger to pull it. That’s
not some hair-trigger, it doesn't just go off, you have to know. And what's more, he didn't
just accidentally squeeze it once, he accidentally squeezed it twice."
The State's theory as to Beckett's mental state, that he "knowingly caus[ed] the death
of another person after deliberation upon the matter," section 565.020, could have been
undermined through expert witness testimony regarding unintentional shootings and the
plausibility of Beckett's account of how the shooting occurred. If the jury in Beckett's case
had the expert witness testimony of Kingsbury, or a similar expert, before it, the inferences
drawn from the evidence may have changed. Similar to Cravens, "the jury may have
believed [Beckett's] claims entirely and disbelieved certain prosecution witnesses." 50
S.W.3d at 297. The jury may have inferred that Beckett was in a heightened state of
excitement due to the domestic dispute and having the gun placed twice against his head,
and that while in this state, he grabbed the weapon recklessly and accidentally squeezed
16 the trigger while attempting to secure the gun. The jury could have further inferred that
the position of the spent cartridges was consistent with the gun being fired in two different
positions during the two shots, specifically that the first shot occurred while the gun was
in a horizontal plane as Beckett was grabbing it off the bed. This would result in the ejected
cartridge going up in the air and coming down on the bed rather than being ejected to the
side of the bed.
Moreover, Kingsbury's testimony could have cast doubt on the State's expert
witnesses, whose testimonies went uncontradicted. Trial counsel attempted to discuss the
experts' testimonies during closing argument, but absent the testimony of his own firearms
expert, he struggled to tie their testimonies to the defense's theory. Beckett lacked the
benefit of an expert witness to corroborate his account or contradict the testimonies of the
State's experts. It is also significant that the jury received instructions on lesser included
offenses ranging from murder in the first degree to involuntary manslaughter in the second
degree. Expert witness testimony regarding the possibility of an unintentional discharge
may have affected the outcome regarding one of the lesser degrees of homicide which were
submitted to the jury. See Cravens, 50 S.W.3d at 298 (citing Lyons v. State, 39 S.W.3d 32
(Mo. banc 2001)). While trial counsel's failure to investigate a firearms expert and call
him as a witness may not have changed the result, "that very real probability cannot be
ignored, and meets the minimum standard of undermining confidence in the outcome of
the case." Perkey v. State, 68 S.W.3d 547, 552 (Mo. App. W.D. 2001) (quoting Moore v.
State, 827 S.W.2d 213, 215 (Mo. banc 1992)).
17 The motion court's judgment denying Beckett's amended motion contained several
findings of fact and conclusions of law that Beckett challenges on appeal. The motion
court found that Beckett failed to show that Kingsbury would testify regarding accidental
shootings, a point the State emphasizes on appeal. Beckett's amended motion states:
[Trial counsel] rendered ineffective assistance of counsel by conduct [sic] adequate investigation--more specifically, consultation with a firearms expert--and failure to present expert testimony from said firearms expert that the gun involved in the shooting was able to discharge shots accidentally.
The crux of the State's argument comes from Kingsbury's testimony regarding the technical
distinction between accidental shootings and unintentional shootings. According to
Kingsbury, an accidental shooting occurs when the gun operates in a defective manner such
that it malfunctions and a discharge of the weapon results. An unintentional shooting, by
contrast, occurs when the gun discharges due to human error, such as when an individual
inadvertently pulls the trigger while grabbing the gun. Because Kingsbury testified that he
could not rule out the possibility of an unintentional shooting, which differed from the
language of Beckett's amended motion that the shooting was "accidental," the motion court
found that Kingsbury's testimony would not aid Beckett. We disagree. First and foremost,
Kingsbury was very clear in his testimony that the distinction between accidental shootings
and unintentional shootings is something of significance in the professional literature on
firearms safety; it is very common for people who are not part of the profession to use the
phrase "accidental shooting" in a broad or generic sense to encompasses a wide range of
behavior including both accidental and unintentional shootings.
18 The allegation in Beckett's amended motion, that "the gun involved in the shooting
was able to discharge shots accidentally," is consistent with the language that the defense
used at trial to argue that Beckett did not mean to shoot Victim. That Kingsbury drew a
distinction between the terms "accidental" and "unintentional" is not fatal to Beckett's
argument. Trial counsel, the State, and the trial court all consistently referred to Beckett's
account of the shooting as "accidental" during trial, even though the correct technical term,
according to Kingsbury, would be that the shooting was "unintentional." And trial counsel
explicitly stated that the defense was not challenging the functionality of the weapon. For
example, the trial court asked the parties, "Is there a dispute as to whether the gun was
faulty?" Trial counsel responded, "Not faulty, Judge, but the discharge was accidental, and
the pulling of the trigger was accidental. We're not going to get into whether this gun was
functional or not."
Beckett also draws this Court to several Missouri cases in which the terms
"accidental" and "unintentional" are used interchangeably, even though experts in the
firearms industry draw technical distinctions between the terms. See State v. Hale, 371
S.W.2d 249, 258 (Mo. 1963) ("An accidental homicide involves an unintentional taking of
human life."); State v. Malone, 301 S.W.2d 750, 759 (Mo. 1957) ("Self-defense involves
an intentional act; an accidental homicide, an unintentional act."); State v. Bruner, 541
S.W.3d 529, 538-39 (Mo. banc 2018) (stating that an accident "connotes an unintentional
killing."). The motion court's denial of Beckett's amended motion on this basis was clearly
erroneous because Beckett alleged that Kingsbury would testify that the gun could
discharge accidentally, and Kingsbury testified that he did not find anything that would
19 rule out an unintentional discharge. Although Kingsbury testified that these terms have
distinct meanings, Beckett's allegation in his amended motion is consistent with his defense
that he did not intend to shoot Victim.
Further, the motion court found that trial counsel exercised reasonable trial strategy
when he terminated his investigation into a firearms expert after calling a gun shop because
he did not want to "create another expert who would state that the gun used during the
offense was operating correctly." This finding is not supported by the record. Trial counsel
never testified that he was concerned about calling an expert who would testify that the
firearm was functioning properly. Trial counsel testified that he did not have any
explanation for his limited investigation into retaining a firearms expert, and the trial court
transcript directly contradicts this finding by the motion court. As previously noted, trial
counsel never contested the functionality of the weapon or argued that the gun discharged
due to a mechanical malfunction. The defense's theory that Beckett did not mean to shoot
Victim was based on Beckett's reckless grabbing of the gun, not that the gun malfunctioned.
Therefore, trial counsel had no incentive to avoid further testimony regarding the
functionality of the weapon because that was never a contested issue. Where trial counsel
lacks the information to make an informed judgment because of inadequacies in his
investigation, any finding as to trial strategy is inappropriate. Cravens, 50 S.W.3d at 295;
see also Clay v. State, 954 S.W.2d 344, 349 (Mo. App. E.D. 1997) ("An argument based
on trial strategy or tactics is appropriate only if counsel is fully informed of facts which
should have been discovered by investigation."). Therefore, the motion court's finding is
clearly erroneous and unsupported by the record.
20 The motion court also denied Beckett's amended motion because Kingsbury never
performed any testing on the actual weapon used in the shooting. However, because
Beckett does not contest that the weapon was functioning properly, Kingsbury's
examination of the actual weapon would not have provided much value to Beckett's claims.
Rather, Kingsbury's testimony was directed toward the plausibility of Beckett's account
that he unintentionally pulled the trigger each time the weapon discharged. Kingsbury's
testimony relied heavily on literature regarding unintentional shootings and the
circumstances that lead to such events. Even if Kingsbury did not examine the weapon
involved in the shooting, his testimony at trial could have led the jury to draw different
inferences regarding Beckett's mental state when pulling the trigger. To the extent that
Kingsbury's analysis did not include an examination of the weapon, it may have detracted
from the strength of Kingsbury's testimony compared to May's testimony, but it does not
detract from the possibility that the jury could have believed Kingsbury when he testified
that Beckett's description of how the shooting occurred was plausible and consistent with
the physical evidence.
Regarding prejudice, the motion court found that Beckett was not prejudiced
because Kingsbury testified to unintentional shootings rather than accidental shootings,
which was the allegation contained in Beckett's amended motion. As was addressed earlier,
this is an argument about semantics and is unpersuasive. The motion court found that
Beckett was not prejudiced because Kingsbury's testimony would have been inadmissible
at trial because it was cumulative. That is, because Beckett himself testified that the
21 shooting was unintentional, any expert witness testimony regarding unintentional
shootings would be irrelevant and cumulative to Beckett's testimony. Again, we disagree.
Generally, failure to present evidence that is cumulative to that presented at trial
does not constitute ineffective assistance of counsel. McLaughlin v. State, 378 S.W.3d
328, 343 (Mo. banc 2012). "Cumulative evidence is additional evidence that reiterates the
same point." State v. Forster, 616 S.W.3d 436, 448 (Mo. App. E.D. 2020) (internal
quotation omitted). However, "not all testimony that restates the factual basis for a criminal
defendant's primary defense is 'merely cumulative.'" State v. Ousley, 419 S.W.3d 65, 72
(Mo. banc 2013). Evidence is not cumulative "when it goes to the very root of the matter
in controversy or relates to the main issue, the decision of which turns on the weight of the
evidence." Black v. State, 151 S.W.3d 49, 56 (Mo. banc 2004). Further, "[t]he defendant's
own testimony on a decisive issue in a case is always received with doubt because of his
interest in the result of the case." State v. Hayes, 785 S.W.2d 661, 663 (Mo. App. W.D.
1990). Therefore, "[c]orroboration is critical, and corroborative testimony by a single
witness can never be discounted as 'merely cumulative.'" Id.
Here, Beckett testified that he did not mean to shoot Victim and that the gun
discharged as he grabbed it while it lay on the bed. Kingsbury's testimony would not have
been cumulative to Beckett's testimony because it constituted expert testimony by someone
qualified as an expert "by knowledge, skill, experience, training, or education[.]" See
section 490.065. Unlike Beckett, Kingsbury could not testify regarding Beckett's mental
state at the time of the shooting. Rather, as a firearms expert, Kingsbury reviewed Beckett's
testimony and the crime scene investigation and formed an opinion that there was nothing
22 that would rule out the possibility that the shooting was unintentional. Unlike Beckett,
Kingsbury could testify to the literature regarding unintentional shootings, including the
prevalence of unintentional shootings involving more than one discharge of the weapon;
ergonomic factors that lead to unintentional shootings, such as grip strength and trigger
travel distance; and disagreement with the State's experts regarding these issues. Beckett's
testimony only pertained to his account of the incident without this expert knowledge.
Therefore, the motion court's finding that Kingsbury's testimony would be cumulative to
Beckett's testimony was clearly erroneous.
Courts will also deny claims of ineffective assistance of counsel where a witness's
testimony will be cumulative to another witness's testimony, including testimony elicited
by trial counsel on cross examination. See Rios v. State, 368 S.W.3d 301, 309 (Mo. App.
W.D. 2012). This also applies in the context of a failure to call a firearms expert witness
where the possibility of an unintentional shooting was discussed on cross-examination.
See, e.g., United States v. McGill, 11 F.3d 223, 227-28 (1st Cir. 1993) ("The prosecution's
expert was led to concede that the trigger of the murder weapon was so sensitive that it
could have been an 'unconscious act' - a concession that defense counsel used to good effect
in his summation."). Here, however, Kingsbury's testimony would not have been
cumulative to another witness at trial. None of the defense's witnesses, other than Beckett
himself, testified to the possibility that the shooting could have been unintentional. Further,
trial counsel did not cross-examine May regarding the possibility that the shooting was
unintentional. In fact, trial counsel's cross-examination of the State's key witness on
firearms was brief. Trial counsel did not question May regarding the claim that the weapon
23 had three safeties, the importance of trigger travel in addition to trigger pull in the context
of unintentional shootings, or if May was aware of any incidents of unintentional shootings
involving multiple shots. Further, trial counsel did not question May whether she could
rule out the possibility that the shooting was unintentional, which was the entire nature of
the defense's theory. This rendered the defense with only Beckett's testimony to argue that
the shooting was unintentional, which as discussed, is "always received with doubt." See
Hayes, 785 S.W.2d at 663. Kingsbury's proffered expert testimony would not have been
cumulative to Beckett's testimony or to any testimony elicited by the State's witnesses at
trial. Further, had trial counsel been aware of the literature regarding firearms which
Kingsbury relied on and the opinions of a firearms expert such as Kingsbury, counsel
would have had the necessary information to more effectively cross-examine May
regarding the possibility that the shooting was unintentional. Accordingly, the motion
court's findings and conclusions were clearly erroneous.
Point granted.
Conclusion
For the foregoing reasons, the judgment of the motion court is reversed. Beckett's
conviction and sentence is vacated, and the cause is remanded for a new trial.
__________________________________ Gary D. Witt, Judge
All concur