Hightower v. State

43 S.W.3d 472, 2001 Mo. App. LEXIS 742, 2001 WL 427831
CourtMissouri Court of Appeals
DecidedApril 27, 2001
DocketNo. 23890
StatusPublished
Cited by4 cases

This text of 43 S.W.3d 472 (Hightower 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
Hightower v. State, 43 S.W.3d 472, 2001 Mo. App. LEXIS 742, 2001 WL 427831 (Mo. Ct. App. 2001).

Opinion

GARRISON, Judge.

Harry Hightower (“Movant”) appeals the denial of his Rule 29.151 motion following an evidentiary hearing. On appeal, Movant contends that the motion court clearly erred in finding that trial counsel were not ineffective for failing to challenge a juror for cause or striking him peremptorily.

Movant was charged with robbery in the first degree, Section 569.020,2 armed criminal action, Section 571.015, and tampering in the first degree, Section 569.080. A jury found him guilty on all counts, and he was sentenced to twenty years on the robbery count, twenty years on the armed criminal action count, and five years on the tampering count, the terms to be served concurrently. These convictions were affirmed on appeal. State v. Hightower, 951 S.W.2d 712 (Mo.App. S.D.1997).

Movant, thereafter, pursuant to Rule 29.15, filed a motion for post-conviction relief, which was later amended. In the amended motion, Movant made numerous claims that his trial counsel, James Feely (“Attorney Feely”) and Deidre McMena-min (“Attorney McMenamin”), were ineffective, including a claim that they failed to strike venireperson Marion Thomas (“Thomas”), either for cause or peremptorily, because of various responses he made during voir dire. The motion court denied relief without an evidentiary hearing, and Movant appealed. This Court affirmed the motion court’s denial of relief without an evidentiary hearing on all claims except for the claim regarding the failure to strike Thomas. Hightower v. State, 1 S.W.3d 626, 633 (Mo.App. S.D.1999). On that claim, the Court reversed and remanded for an evidentiary hearing. Id.

On September 8, 2000, an evidentiary hearing was held. Movant called Attorney Feely, who testified that during voir dire, the prosecutor had informed the jury panel that he was prosecuting a separate, unrelated case concerning the murder of Mike Ivey (“Ivey”). Attorney Feely stated that he remembered the prosecutor asking the jury panel if his prosecution of that case would affect their ability to sit as jurors, and recalled that Thomas indicated that Ivey was a friend of his and that might affect, in a positive way, his view of the prosecutor’s office.3 Attorney Feely testified that he would normally ask a prospective juror follow-up questions, but he did not ask Thomas any “because, based on [Thomas’] answers [to the prosecutor’s questions], it would lead you to think that there’s really no reason to keep him.” However, Attorney Feely, who was based in St. Charles, Missouri, changed his mind about striking Thomas once he consulted [475]*475with Attorney McMenamin, who was a local defense attorney in Mississippi County. She told him that she had heard that friends and family of Ivey were mad at the prosecutor’s office “because they didn’t feel they were doing enough. And based on that, maybe this particular juror would have bad feelings toward the prosecutor.” Attorney Feely further testified:

At the time I thought [Thomas] could possibly help us if he didn’t — if he had bad feelings towards the prosecutor, whether or not it had to do with their, perhaps, their ethics or how good they were. And since our defense was that [Defendant] was not there, and there were some pieces of evidence that we brought out that I feel did show that [Defendant] was not the robber, I thought this particular juror would not find him guilty.

When questioned about whether Thomas had lied under oath when he stated that he might have positive feelings toward the prosecutor, Attorney Feely stated:

Well, to be honest with you, and as a trial attorney you’re probably aware, oftentimes jurors don’t always tell the truth on voir dire when you ask them [sic] question, “Will you hold it against the defendant if he doesn’t testify?” Sometimes nobody raises their hand, and I can’t imagine they’re all telling the truth with that answer.
The way [the prosecutor] asked this question, and you can — you can read the question, it isn’t stated as you’re going to, you know, find this man guilty for sure. You know, it was sort of a well, you’ll have a more positive than negative feeling towards [Defendant] — or towards us, and he said yes to mean a little more positive.
You know, like I said, I — I based what I did on what [Attorney McMenamin] told me, and, you know, if I had to do it over again I would change it. But at the time I thought that [Attorney McMena-min] was giving the information that would be helpful in — in my case, so we decided to keep him.

Following Attorney Feely’s testimony, the motion court took the matter under advisement. On September 19, 2000, the motion court issued its findings of fact and conclusions of law denying Movant’s claim. Movant appeals from that ruling.

Appellate review of the denial of a motion for post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Leisure v. State, 828 S.W.2d 872, 873-74 (Mo. banc 1992). A motion court’s findings are clearly erroneous if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. State v. Taylor, 944 S.W.2d 925, 938 (Mo. banc 1997).

A criminal defendant seeking post-conviction relief based on ineffective assistance of counsel must demonstrate that his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances and that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Milner v. State, 968 S.W.2d 229, 230 (Mo.App. S.D.1998). To prove prejudice, a movant must show a reasonable probability that, but for counsel’s errors, the result of the trial would have been different. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998). Moreover, actions that constitute sound trial strategy are not grounds for ineffective assistance claims, and this Court presumes that any challenged action was part of counsel’s sound trial strategy and that counsel acted [476]*476professionally in making those decisions. Id.

In his sole point on appeal, Movant claims that trial counsel were ineffective in that they should have moved to strike Thomas for cause as “Thomas clearly expressed his favoritism for the prosecutor’s office,” or should have excused him with a peremptory strike as “trial counsel’s initial intention was to strike [Thomas], and nothing he was told by [Attorney McMenamin] sufficiently contradicted this or supported the conclusion that [Thomas] would make a good juror for the defense.”

A venireperson may be excluded for cause only where his or her views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the instructions and oath. State v. Rousan, 961 S.W.2d 831, 839 (Mo.

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Cite This Page — Counsel Stack

Bluebook (online)
43 S.W.3d 472, 2001 Mo. App. LEXIS 742, 2001 WL 427831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hightower-v-state-moctapp-2001.