Henderson v. State

398 S.W.3d 575, 2013 WL 1800234, 2013 Mo. App. LEXIS 521
CourtMissouri Court of Appeals
DecidedApril 30, 2013
DocketNo. WD 74982
StatusPublished
Cited by1 cases

This text of 398 S.W.3d 575 (Henderson v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henderson v. State, 398 S.W.3d 575, 2013 WL 1800234, 2013 Mo. App. LEXIS 521 (Mo. Ct. App. 2013).

Opinion

CYNTHIA L. MARTIN, Judge.

Shauntay Henderson (“Henderson”) appeals from the motion court’s denial of her Rule 29.15 motion after an evidentiary hearing. Henderson contends that the motion court erred in denying her motion because she received ineffective assistance of counsel to her prejudice in that trial counsel failed to investigate and call a witness at trial who would have supported her claim of self-defense, and that as a result, the confidence in her convictions of voluntary manslaughter and armed criminal action is undermined. We affirm.

Factual and Procedural History1

On September 2, 2006, Henderson shot and killed DeAndre Parker (“Parker”) at a gas station in Kansas City, Missouri. Henderson was charged as a prior offender with murder in the second degree and armed criminal action. On November 18, 2008, a bench trial was held.’ Henderson testified that she shot Parker in self-defense when he tried to run her over with his truck. Parker’s girlfriend, Miea Bentley (“Bentley”), testified that she was in Parker’s truck when Henderson walked up and shot Parker without provocation.

The trial court acquitted Henderson of murder in the second degree but convicted her of the lesser-included offense of voluntary manslaughter and armed criminal action. In announcing its verdict, the trial court explained that based on the physical evidence, it believed that Henderson believed Parker was attempting to run her over. However, the trial court found that Henderson did not act in self-defense because she failed to pursue available avenues of retreat.

On January 23, 2009, Henderson was sentenced to ten years’ imprisonment on the voluntary manslaughter count. The execution of sentence was suspended and Henderson was placed on probation for a period of five years. Henderson was sentenced to three years’ imprisonment on the [577]*577armed criminal action count. Henderson’s convictions were affirmed by this court in State v. Henderson, 311 S.W.3d 411 (Mo. App. W.D.2010).

On September 7, 2010, Henderson timely filed a pro se Rule 29.15 motion. Henderson was appointed post-conviction counsel who timely filed an amended Rule 29.15 motion. After an evidentiary hearing, the motion court denied Henderson’s motion. Henderson appeals.

Standard of Review

“Appellate review of the trial court’s action on [a] motion filed under [ ] Rule 29.15 shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 29.15(k). “ ‘The motion court’s findings and conclusions are clearly erroneous if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made.’ ” Roberts v. State, 356 S.W.3d 196, 199 (Mo.App. W.D.2011) (quoting Clay v. State, 310 S.W.3d 733, 735 (Mo.App. W.D. 2010)).

Analysis

In Henderson’s sole point on appeal, Henderson claims she received ineffective assistance of counsel because her trial counsel failed to investigate and call Charles Allen (“Allen”) as a witness during trial. Henderson claims Allen would have corroborated her claim of self-defense, and that the failure to call Allen undermines confidence in the outcome of her trial.

To establish ineffective assistance of counsel, Henderson must prove by a preponderance of the evidence: “(1) that counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney; and (2) that [Henderson] was thereby prejudiced.” Haskett v. State, 152 S.W.3d 906, 909 (Mo. App. W.D.2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). If Henderson fails to demonstrate either prong of the Strickland test, her post-conviction motion will be denied. Id.

To establish the performance prong, Henderson bears a heavy burden “and must overcome a strong presumption that [her] counsel provided competent assistance.” Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002). Henderson must demonstrate ‘“that counsel’s representation fell below an objective standard of reasonableness.’ ” Id. at 426 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). To demonstrate this, Henderson “must identify specific acts or omissions of counsel that resulted from unreasonable professional judgment, and the ‘court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance.’ ” Id. (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). We judge the reasonableness of counsel’s conduct based on the facts of each case. Williams v. State, 205 S.W.3d 300, 305 (Mo.App. W.D.2006).

To establish prejudice, Henderson must show that there is a reasonable probability that but for her counsel’s ineffectiveness, the result would have been different. Patterson v. State, 110 S.W.3d 896, 900 (Mo. App. W.D.2003). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id. (citations omitted). A showing of error that could have a conceivable effect on the outcome is insufficient. Williams, 205 S.W.3d at 305.

Here, Henderson’s claim of ineffective assistance of counsel is based on her trial counsel’s failure to call a witness at trial. To establish ineffective assistance of counsel on this basis, Henderson must [578]*578show that: “(1) [trial] counsel knew or should have known of the existence of the witness, (2) the witness could be located through a reasonable investigation, (3) the witness would testify, and (4) the testimony of the witness would have produced a viable defense.” Hays v. State, 360 S.W.3d 304, 309-10 (Mo.App. W.D.2012). “ ‘The selection of witnesses is a virtually unchallengeable question of trial strategy.’ ” Id. (quoting State v. Kreutzer, 928 S.W.2d 854, 877 (Mo. banc 1996)). “The decision not to call a witness ‘will not support a claim of ineffective assistance of counsel unless the defendant clearly establishes otherwise.’ ” Id. (quoting Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004)).

Here, it is uncontested that Allen’s existence was known to trial counsel; that trial counsel located Allen in federal prison; that Allen was willing to testify; and that trial counsel had Allen transported from federal prison to the Jackson County jail in preparation for his possible testimony at trial.2 The dispositive issues, therefore, are whether Allen’s testimony would have produced a viable defense and whether the decision not to call Allen to testify was a question of trial strategy.

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398 S.W.3d 575, 2013 WL 1800234, 2013 Mo. App. LEXIS 521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-state-moctapp-2013.