Houston v. State

513 S.W.3d 407, 2017 WL 993004, 2017 Mo. App. LEXIS 171
CourtMissouri Court of Appeals
DecidedMarch 14, 2017
DocketNo. ED 104341
StatusPublished

This text of 513 S.W.3d 407 (Houston 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
Houston v. State, 513 S.W.3d 407, 2017 WL 993004, 2017 Mo. App. LEXIS 171 (Mo. Ct. App. 2017).

Opinion

OPINION

James M. Dowd, Judge

Dwayne L. Houston was convicted after a jury trial of first-degree burglary, attempted forcible rape, and second-degree sexual misconduct. The trial court sentenced Houston to concurrent terms of seventeen years’ imprisonment for the first-degree burglary and attempted forcible rape convictions. Houston’s sentence for the second-degree sexual misconduct conviction was discharged for time served awaiting trial. Houston’s convictions were affirmed on direct appeal. See State v. Houston, 467 S.W.3d 894 (Mo.App.E.D. 2015).

Houston now appeals the denial following an evidentiary hearing of his Rule 29.151 motion for post-conviction relief. Houston raises one point on appeal: that his trial counsel was ineffective for failing to call witnesses to testify at his hearing on his motion for new trial in support of his claim of newly-discovered evidence. Specifically, Houston claims that certain witnesses should have been called to testify regarding the newly-discovered evidence that juror Rose Clemons had failed to disclose during voir dire that she knew Houston from an intimate relationship they had over a decade ago. Finding no clear error, we affirm.

Factual and Procedural Background

In the late 1990s, when Houston and Clemons were teenagers, they dated. In 2012, Houston was charged by a grand jury indictment with first-degree burglary, attempted forcible rape, and second-degree sexual misconduct. In January 2014, Houston was tried by a jury on those charges.

During voir dire, all members of the venire panel were asked if they knew Houston. Clemons did not indicate that she knew Houston. Later, she also stated generally that she knew of no reason why she could not be fair. Throughout the three-day trial, neither Houston nor Clemons ever indicated that they knew one another. On January, 15, 2014, the jury found Houston guilty on all three counts.

On January 21, 2014, Houston’s trial attorney filed a motion for new trial, raising eight points of error. The motion did not raise any issue or argument regarding Clemons’s prior relationship with Houston. On March 6, 2014, Houston informed his trial attorney that his cousin, Melvin Lane, told him that Clemons had contacted Lane’s family to inform them that she was on the jury that convicted Houston.

At the start of Houston’s sentencing hearing, Houston’s counsel informed the court that he had learned that Houston knew Clemons. Counsel asserted that Clemons had contacted Houston’s family and let them know that she had dated Houston in the past and was on the jury that convicted him, but that she did not disclose that she knew Houston during voir dire. Counsel did not request an evi-dentiary hearing and did not submit any evidence in support of the claim. The trial court denied the motion for new trial, find[409]*409ing Clemons’s answer given during voir dire that she did not know Houston to be credible.

Houston filed a direct appeal, arguing that the trial court committed plain error by failing to hold an evidentiary hearing on his claim that Clemons was not an impartial juror. This court found no plain error because it found Houston’s claim that he did not recognize Clemons was not believable and that Houston attempted to sandbag the trial court by waiting until after the verdict was announced to raise this claim for the first time. See Houston, 467 S.W.3d at 900-01. Moreover, we found that Houston failed to meet his burden of proving juror misconduct by "failing to produce any evidence in support of his claim to the court’s attention. See id.

Now, in his Rule 29.15 motion, Houston claims that his trial counsel was ineffective for failing to call himself, Lane, and Clemons to testify at the hearing on his motion for new trial. The motion court granted Houston an evidentiary hearing, and at the hearing, Houston presented the deposition testimony of his trial attorney, himself, Lane, and Clemons.

Houston’s trial attorney testified that he had no independent recollection of the voir dire proceedings from Houston’s trial but his notes indicated that Clemons stated that she could be fair. Trial counsel testified that if Clemons had indicated that she knew Houston, it would have been reflected in. his notes and it was not, and further that he did not recall Houston ever telling him during voir dire or trial that he knew Clemons. He testified that he first became aware that Clemons and Houston knew each other during a jail visit with Houston on March 6, 2014, which was after the trial and the filing of the motion for new trial, but before sentencing.

Houston testified that he knew Clemons from a past relationship in 1998 or 1999 when he^ was eighteen years old, but that he did not recognize her during his trial because she had gained weight. He testified he learned from his cousin Lane that Clemons had contacted Lane telling him that she had served on Houston’s jury.

Lane testified Clemons was his ex-girlfriend and that he introduced Clemons to Houston about fifteen years ago. Lane testified that after the trial Clemons called his cousin Jerome Hill and told him that she was on Houston’s jury. _

Clemons testified that she met Houston when she was sixteen or seventeen years old and they dated, but that she did not remember it until after the case was over when she was contacted by the court. She denied being introduced to Houston by anyone, denied knowing any of Houston’s relatives, and denied contacting any of Houston’s family or friends after the trial. When asked why she did not respond affirmatively during voir dire to the question of whether anyone recognized Houston, she testified that she did not recall knowing him at that time. She testified that she .did not realize she knew Houston until after she was contacted by the court about coming in for her deposition related to this proceeding. Clemons testified that she never realized during the trial that she knew Houston and that her past relationship with. Houston did not influence her decision in finding Houston guilty. She testified that she had shorter hair than she did back when she knew Houston and had put on approximately twenty-five pounds , since then.

The motion court denied Houston’s Rule 29.15 motion, finding Houston’s version of events was not credible. The motion court also found that Houston’s trial counsel was not ineffective because trial counsel was not made aware of the alleged juror misconduct until after the time for. filing a [410]*410motion for new trial was due. This appeal follows.

Standard of Review

Appellate review of the denial of a Rule 29.15 motion is limited to a determination of whether the motion court’s findings, conclusions, and judgment are clearly erroneous. Anderson v. State, 196 S.W.3d 28, 33 (Mo.banc 2006). 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. Id. We presume that the motion court’s findings are correct. Id.

Discussion

A. The motion court did not clearly err in denying Houston’s ineffective assistance claim.

Houston claims that Clemons committed juror misconduct by failing to disclose during voir dire

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
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59 S.W.3d 45 (Missouri Court of Appeals, 2001)
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173 S.W.3d 359 (Missouri Court of Appeals, 2005)
Zink v. State
278 S.W.3d 170 (Supreme Court of Missouri, 2009)
State v. Baumruk
280 S.W.3d 600 (Supreme Court of Missouri, 2009)
Anderson v. State
196 S.W.3d 28 (Supreme Court of Missouri, 2006)
State v. Simmons
955 S.W.2d 729 (Supreme Court of Missouri, 1997)
State v. Hadley
815 S.W.2d 422 (Supreme Court of Missouri, 1991)
State of Missouri v. Thomas A. Ess
453 S.W.3d 196 (Supreme Court of Missouri, 2015)
State v. Mullins
897 S.W.2d 229 (Missouri Court of Appeals, 1995)
State v. McFadden
391 S.W.3d 408 (Supreme Court of Missouri, 2013)
State v. Houston
467 S.W.3d 894 (Missouri Court of Appeals, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
513 S.W.3d 407, 2017 WL 993004, 2017 Mo. App. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houston-v-state-moctapp-2017.