Hill v. State

88 S.W.3d 527, 2002 Mo. App. LEXIS 2230, 2002 WL 31499315
CourtMissouri Court of Appeals
DecidedNovember 12, 2002
DocketNo. WD 58951
StatusPublished

This text of 88 S.W.3d 527 (Hill 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
Hill v. State, 88 S.W.3d 527, 2002 Mo. App. LEXIS 2230, 2002 WL 31499315 (Mo. Ct. App. 2002).

Opinion

HAROLD L. LOWENSTEIN, Judge.

The issue in this case is whether a defendant’s Sixth Amendment right to effective assistance of counsel was violated when his counsel failed to object to a jury instruction that erroneously omitted the mens rea element where the defendant’s sole defense is one of mistaken identity and where the defendant was convicted of a different crime that necessarily required a finding of the missing element. This court holds that there was no Sixth Amendment violation. Accordingly, this court affirms the circuit court’s denial of appellant’s Rule 29.15 motion.

Tyrone L. Hill was convicted of two counts of robbery in the first degree, § 569.020,1 two counts of armed-criminal [528]*528action, § 571.015.1, tampering in the first degree, § 569.080.1, and possession of short-barreled shotgun, § 571.020.1(4). To be convicted of armed criminal action, a person must commit a felony “by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon[.]”

On direct appeal, Hill argued that the circuit court plainly erred in approving a jury instruction relating to possession of a short-barreled shotgun that omitted the word “knowingly,” a necessary element in the offense. Hill’s counsel did not object to the instruction either before submission to the jury or after trial in a post-trial motion. This court affirmed his conviction. State v. Hill, 970 S.W.2d 868, 870 (Mo.App.1998).

In a Rule 29.15 motion, Hill argued, among other things, that his Sixth Amendment right to effective assistance of counsel was violated because his counsel did not object to the prosecution’s jury instruction. Without holding an evidentiary hearing, the circuit court denied Hill’s motion, concluding that it could not consider Hill’s ineffective assistance of counsel claim because it was materially similar to an argument made by Hill on direct appeal. This court affirmed the motion court, Hill v. State, WD58951, memorandum order at 7 (Mo.App.2001). The Supreme Court of Missouri accepted transfer, then transferred the case back to this court for reconsideration in light of Deck v. State, in which the Court held that an error that is not outcome-determinative (necessary and sufficient to show plain error) may nonetheless prejudice a defendant and thus violate his right to effective assistance of counsel. 68 S.W.3d 418, 426 (Mo. banc 2002).

FACTUAL HISTORY

On May 16, 1996, Tyrone Hill robbed the Dollar General store. He approached the cashier on duty, Joyce Nead, with a paper bag. He told her to give him the money from the register, and pointed to something concealed beneath his coat, which Nead thought was a gun. Nead panicked and could not open her register. A customer, Judy George, then approached the register with a $20 bill in her hand. While approaching, George heard Nead tell Hill, “I’m trying to get it open.” Hill grabbed George by her shoulder, put a shotgun to her neck, and told Nead to hurry up or he would “blow her neck off.” Hill took George’s $20.

Unable to open the register, Nead called over her manager, John Miller. Miller approached the cash register and saw the defendant holding the gun. Hill pointed the gun at him, and told him he would kill him unless he (Miller) opened the register. Miller was unable to open the register. During Miller’s attempts to open the register, Hill repeatedly said, “Open up the register or I’ll kill you,” and, “Give me the money or I’ll kill the customer.” Miller pulled out $130 from the adjacent drawer and gave it to Hill, who pocketed the money and left the store.

Officer Gregory Smith, who was driving by the Dollar General, heard a radio dispatch indicating that a robbery had just occurred at the store. As Officer Smith pulled his vehicle up to the curb, he saw a man exiting the store who fit the description of the robbery suspect and who he would later identify as Hill. Seeing Smith’s patrol car, Hill took off running through a parking lot and then cut through a beauty shop. Smith, thinking Hill was armed, did not chase Hill into the shop, instead radioing Officer Rick Stark and telling Stark that Hill had entered a fenced, wooded area. Officer Stark arrested Hill in this area. When the police searched Hill, they found a .20 gauge shotgun shell and $149, [529]*529bundled in the same way that the Dollar General packaged its cash. Police Chief Christopher Turnbow also recovered a paper sack and crumpled white T-shirt next to the shed in the yard from which Hill had run. Officer Kevin Sheets found a green pullover shirt which was wrapped around a sawed-off shotgun in a bush near the Dollar General store. Its length was approximately 15¾ inches.

Meanwhile, in a nearby parking lot, police also found a car, later determined to have been stolen, with its right rear window broken out. Inside the car, police found a blood-stained paper towel, a screwdriver and a rap music tape. Pat Sanchez, the owner of the car, said it had been stolen earlier that day. She said that the towel, screwdriver, and tape were not hers. Fingerprints taken from the trunk matched Hill’s.

At his trial, Hill testified that when he was arrested he was on his way to Pizza Hut and was just taking a shortcut through the parking lot, a shortcut that took him past the car. There, he testified, is where he found the shotgun shell, which he picked up for good luck. He also testified that he patted the trunk merely to see whether the car was rigged with an alarm. He then rifled through it to see if he could find something else to steal. As he was getting out of the vehicle, Hill testified, the police arrived and he started to run, but stopped when Officer Stark drew his gun. Hill testified that the money in his pocket was to take care of unpaid traffic tickets.

STANDARD OF REVIEW

A ruling on a Rule 29.15 motion will be reversed only when the findings and conclusions are clearly erroneous. Rule 29.15(k). “Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made.” Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000).

To succeed on a Rule 29.15 ineffective assistance of counsel claim, Hill must prove that his counsel failed to exercise the customary skill and diligence of a reasonably competent attorney, thereby prejudicing Hill. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice means “a reasonable probability that, but — for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Hill faces a strong presumption that counsel’s challenged action (or inaction) fell within the range of sound trial strategy, and bears the burden to prove by a preponderance of the evidence counsel’s objective failure to provide effective assistance. Id. at 689, 104 S.Ct. 2052. Moreover, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the ... [proceedings] cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052.

ANALYSIS

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Scoggin v. Kaiser
186 F.3d 1203 (Tenth Circuit, 1999)
State v. Nations
676 S.W.2d 282 (Missouri Court of Appeals, 1984)
State v. Hill
970 S.W.2d 868 (Missouri Court of Appeals, 1998)
Deck v. State
68 S.W.3d 418 (Supreme Court of Missouri, 2002)
Morrow v. State
21 S.W.3d 819 (Supreme Court of Missouri, 2000)
State v. Wurtzberger
40 S.W.3d 893 (Supreme Court of Missouri, 2001)
State v. Clay
975 S.W.2d 121 (Supreme Court of Missouri, 1998)
State v. Cruz
71 S.W.3d 612 (Missouri Court of Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
88 S.W.3d 527, 2002 Mo. App. LEXIS 2230, 2002 WL 31499315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-state-moctapp-2002.