In the Missouri Court of Appeals Western District
JAMES R. THOMPSON, ) Appellant, ) WD82221 v. ) ) STATE OF MISSOURI, ) FILED: September 24, 2019 Respondent. )
APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY THE HONORABLE CHRISTINE CARPENTER, JUDGE
BEFORE DIVISION TWO: LISA WHITE HARDWICK, PRESIDING JUDGE, THOMAS H. NEWTON AND MARK D. PFEIFFER, JUDGES James Thompson appeals from the denial of his Rule 29.15 motion for post-
conviction relief after he was convicted of first-degree murder. He contends his trial
counsel was ineffective for failing to request that a venireperson be struck for cause.
For reasons explained herein, we find no error and affirm the motion court’s judgment.
FACTUAL AND PROCEDURAL HISTORY
In April 10, 2013, Thompson and his accomplice, Casey Lewis, murdered Brian
Daniels by shooting him three times. Thompson was Daniels’s friend and caretaker.
Daniels had been badly burned in an apartment fire and was unable to maintain his
house due to his injuries. Daniels had received a settlement of approximately five
million dollars from a lawsuit stemming from the fire. Before Thompson and Lewis killed
Daniels, Thompson forged a document purporting to be Daniels’s will, which bequeathed all of Daniels’s money and property to Thompson, and another document
purporting to be a power of attorney, which named Thompson as Daniels’s attorney-in-
fact. After the murder, Thompson confessed the details of the murder to another friend.
The State charged Thompson with first-degree murder, and a jury trial was held.
During voir dire, defense counsel asked the venire panel whether any of them felt that
the defense should put on evidence. One venireperson responded that she believed
the defense would need to present evidence. After defense counsel explained that he
would be cross-examining the State’s witnesses and questioning the evidence that the
State introduced, he asked again if anyone was “going to require the defense to put on
evidence.” Another venireperson responded:
He’s assumed innocent at this point, but the State is going to do their best to prove that he’s not that way, that he’s guilty. And you have to counter that. And I would believe that just cross-examining the witnesses is not – insufficient. I would think you would have to present further evidence beyond that.
Defense counsel asked if anyone else felt that way. Venireperson 38 replied, “Yes. I
think that if you don’t bring that out in your cross-examination of the witnesses, then
yes, you need to add a little bit more to that.” When defense counsel followed up by
asking venireperson 38 if she would require the defense to present evidence that
Thompson was not guilty, she responded affirmatively. Defense counsel received
similar responses from several other venirepersons.
Almost all of the potential jurors who had indicated that they would require the
defense to present evidence were struck for cause, including two venirepersons whom
defense counsel specifically requested to strike for that reason alone. Defense counsel
did not move to strike venireperson 38 for cause, however, and she was not discussed
2 during the jury selection conference. Following the strikes for cause and peremptory
strikes, the court read the list of venirepersons who would comprise the jury.
Venireperson 38 was included on the list. Defense counsel did not object and, instead,
acknowledged that the court’s list was correct. Defense counsel did not object to
venireperson 38’s service on the jury at any point during the trial and did not include her
service as a claim of error in his motion for new trial.
The jury found Thompson guilty of first-degree murder, and the court sentenced
him to life in prison without the possibility of parole. We affirmed his conviction and
sentence on direct appeal in a per curiam order. State v. Thompson, 506 S.W.3d 355
(Mo. App. 2016). One of the claims raised in his direct appeal was that the circuit court
erred in failing to strike venireperson 38 sua sponte for cause. We found no basis for
plain error relief, noting that, because the circuit court has no duty to remove any
venireperson sua sponte, there was no evident, obvious, or clear error and, therefore,
no plain error. Having found no plain error, we declined to proceed to the second step
in the plain error analysis of determining whether the claimed error resulted in manifest
injustice or a miscarriage of justice.
Thompson subsequently filed a pro se motion for post-conviction relief, which
was later amended by counsel. One of the claims in his amended motion was that
defense counsel was ineffective for failing to request that venireperson 38 be stricken
for cause after she “unequivocally” stated during voir dire that she would require the
defense to present evidence that Thompson was not guilty.
An evidentiary hearing was held. Defense counsel testified on direct examination
that he was unable to remember venireperson 38 specifically and did not remember
3 whether he requested that she be struck for cause or whether she served on the jury.
On cross-examination, defense counsel testified that he knew before the trial started
that Thompson was going to testify and that he was planning to call multiple witnesses
to testify on Thompson’s behalf. Defense counsel further testified that Thompson did, in
fact, testify for over six hours and that the defense called eight witnesses. Defense
counsel stated that, when he asked venirepersons during voir dire whether they would
require the defense to put on evidence, he already knew that he would put on evidence
and, essentially, was “asking a hypothetical question that [he] knew would never occur.”
He testified that, as a result, he was not “too concerned” if a panelist said that he or she
would require him to put on evidence.
In denying this claim, the motion court found that defense counsel was not
ineffective because he provided an acceptable explanation for why he failed to move to
strike venireperson 38. Additionally, the court found that Thompson was not prejudiced
by venireperson 38’s service on the jury because defense counsel did, in fact, present
evidence. Thompson appeals.
STANDARD OF REVIEW
We review the denial of a post-conviction motion for clear error. Rule 29.15(k).
The motion court’s findings and conclusions are clearly erroneous only if a review of the
entire record leaves us with a definite and firm impression that a mistake was made.
Edwards v. State, 200 S.W.3d 500, 509 (Mo. banc 2006). We presume the motion
court’s findings and conclusions are correct. Id.
To obtain post-conviction relief on an ineffective assistance of counsel claim,
Thompson had to establish, by a preponderance of the evidence, that his counsel failed
4 to exercise the customary skill and diligence of a reasonably competent attorney under
the same or similar circumstances and that he was thereby prejudiced. Zink v. State,
278 S.W.3d 170, 175 (Mo. banc 2009) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To demonstrate prejudice, Thompson had to show that “‘there is a
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In the Missouri Court of Appeals Western District
JAMES R. THOMPSON, ) Appellant, ) WD82221 v. ) ) STATE OF MISSOURI, ) FILED: September 24, 2019 Respondent. )
APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY THE HONORABLE CHRISTINE CARPENTER, JUDGE
BEFORE DIVISION TWO: LISA WHITE HARDWICK, PRESIDING JUDGE, THOMAS H. NEWTON AND MARK D. PFEIFFER, JUDGES James Thompson appeals from the denial of his Rule 29.15 motion for post-
conviction relief after he was convicted of first-degree murder. He contends his trial
counsel was ineffective for failing to request that a venireperson be struck for cause.
For reasons explained herein, we find no error and affirm the motion court’s judgment.
FACTUAL AND PROCEDURAL HISTORY
In April 10, 2013, Thompson and his accomplice, Casey Lewis, murdered Brian
Daniels by shooting him three times. Thompson was Daniels’s friend and caretaker.
Daniels had been badly burned in an apartment fire and was unable to maintain his
house due to his injuries. Daniels had received a settlement of approximately five
million dollars from a lawsuit stemming from the fire. Before Thompson and Lewis killed
Daniels, Thompson forged a document purporting to be Daniels’s will, which bequeathed all of Daniels’s money and property to Thompson, and another document
purporting to be a power of attorney, which named Thompson as Daniels’s attorney-in-
fact. After the murder, Thompson confessed the details of the murder to another friend.
The State charged Thompson with first-degree murder, and a jury trial was held.
During voir dire, defense counsel asked the venire panel whether any of them felt that
the defense should put on evidence. One venireperson responded that she believed
the defense would need to present evidence. After defense counsel explained that he
would be cross-examining the State’s witnesses and questioning the evidence that the
State introduced, he asked again if anyone was “going to require the defense to put on
evidence.” Another venireperson responded:
He’s assumed innocent at this point, but the State is going to do their best to prove that he’s not that way, that he’s guilty. And you have to counter that. And I would believe that just cross-examining the witnesses is not – insufficient. I would think you would have to present further evidence beyond that.
Defense counsel asked if anyone else felt that way. Venireperson 38 replied, “Yes. I
think that if you don’t bring that out in your cross-examination of the witnesses, then
yes, you need to add a little bit more to that.” When defense counsel followed up by
asking venireperson 38 if she would require the defense to present evidence that
Thompson was not guilty, she responded affirmatively. Defense counsel received
similar responses from several other venirepersons.
Almost all of the potential jurors who had indicated that they would require the
defense to present evidence were struck for cause, including two venirepersons whom
defense counsel specifically requested to strike for that reason alone. Defense counsel
did not move to strike venireperson 38 for cause, however, and she was not discussed
2 during the jury selection conference. Following the strikes for cause and peremptory
strikes, the court read the list of venirepersons who would comprise the jury.
Venireperson 38 was included on the list. Defense counsel did not object and, instead,
acknowledged that the court’s list was correct. Defense counsel did not object to
venireperson 38’s service on the jury at any point during the trial and did not include her
service as a claim of error in his motion for new trial.
The jury found Thompson guilty of first-degree murder, and the court sentenced
him to life in prison without the possibility of parole. We affirmed his conviction and
sentence on direct appeal in a per curiam order. State v. Thompson, 506 S.W.3d 355
(Mo. App. 2016). One of the claims raised in his direct appeal was that the circuit court
erred in failing to strike venireperson 38 sua sponte for cause. We found no basis for
plain error relief, noting that, because the circuit court has no duty to remove any
venireperson sua sponte, there was no evident, obvious, or clear error and, therefore,
no plain error. Having found no plain error, we declined to proceed to the second step
in the plain error analysis of determining whether the claimed error resulted in manifest
injustice or a miscarriage of justice.
Thompson subsequently filed a pro se motion for post-conviction relief, which
was later amended by counsel. One of the claims in his amended motion was that
defense counsel was ineffective for failing to request that venireperson 38 be stricken
for cause after she “unequivocally” stated during voir dire that she would require the
defense to present evidence that Thompson was not guilty.
An evidentiary hearing was held. Defense counsel testified on direct examination
that he was unable to remember venireperson 38 specifically and did not remember
3 whether he requested that she be struck for cause or whether she served on the jury.
On cross-examination, defense counsel testified that he knew before the trial started
that Thompson was going to testify and that he was planning to call multiple witnesses
to testify on Thompson’s behalf. Defense counsel further testified that Thompson did, in
fact, testify for over six hours and that the defense called eight witnesses. Defense
counsel stated that, when he asked venirepersons during voir dire whether they would
require the defense to put on evidence, he already knew that he would put on evidence
and, essentially, was “asking a hypothetical question that [he] knew would never occur.”
He testified that, as a result, he was not “too concerned” if a panelist said that he or she
would require him to put on evidence.
In denying this claim, the motion court found that defense counsel was not
ineffective because he provided an acceptable explanation for why he failed to move to
strike venireperson 38. Additionally, the court found that Thompson was not prejudiced
by venireperson 38’s service on the jury because defense counsel did, in fact, present
evidence. Thompson appeals.
STANDARD OF REVIEW
We review the denial of a post-conviction motion for clear error. Rule 29.15(k).
The motion court’s findings and conclusions are clearly erroneous only if a review of the
entire record leaves us with a definite and firm impression that a mistake was made.
Edwards v. State, 200 S.W.3d 500, 509 (Mo. banc 2006). We presume the motion
court’s findings and conclusions are correct. Id.
To obtain post-conviction relief on an ineffective assistance of counsel claim,
Thompson had to establish, by a preponderance of the evidence, that his counsel failed
4 to exercise the customary skill and diligence of a reasonably competent attorney under
the same or similar circumstances and that he was thereby prejudiced. Zink v. State,
278 S.W.3d 170, 175 (Mo. banc 2009) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To demonstrate prejudice, Thompson had to show that “‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Deck v. State, 68 S.W.3d 418, 426
(Mo. banc 2002) (quoting Strickland, 466 U.S. at 694)).
ANALYSIS
In his sole point on appeal, Thompson contends the motion court clearly erred in
denying his claim that defense counsel was ineffective for failing to strike venireperson
38 for cause. Thompson argues that venireperson 38’s statement that defense counsel
would need to present evidence that he was not guilty showed a “clear inability” to
follow the court’s instructions regarding the proper burden of proof.
Generally, the decision to strike a venireperson is a matter of trial strategy.
Collins v. State, 226 S.W.3d 906, 911 (Mo. App. 2007). “Reasonable decisions
regarding trial strategy cannot be the basis for an ineffective assistance of counsel
claim.” Id. (citation omitted). “However, the failure to challenge a venireperson who
admits to a prejudice to the defendant's detriment constitutes ineffective assistance
absent an acceptable explanation.” Id. (citation omitted).
Here, the motion court found credible defense counsel’s explanation that he did
not move to strike venireperson 38 because he always knew that he would be
presenting evidence, including Thompson’s testimony; consequently, he was not “too
5 concerned” about venireperson 38’s statement that, if defense counsel did not
adequately challenge the State’s case through cross-examination, she would expect
him to put on some evidence. The motion court also found credible defense counsel’s
testimony that his voir dire question regarding whether venirepersons would require the
defense to put on evidence was merely a hypothetical question for a situation that he
knew would never occur. Deferring to the motion court’s credibility determination, we
find that the motion court did not clearly err in finding that defense counsel had an
acceptable explanation for not moving to strike venireperson 38 and, therefore, his
failure to move to strike her did not constitute deficient performance.
Moreover, Thompson failed to demonstrate that he was prejudiced by
venireperson 38’s service on the jury. Where a juror indicates an expectation during
voir dire that the defendant will present evidence and the defendant presents evidence,
“the possibility of prejudice disclosed by [the juror]’s voir dire examination evaporate[s].”
State v. Hadley, 815 S.W.2d 422, 424 (Mo. banc 1991) (emphasis added); State v.
Ebeirus, 184 S.W.3d 582, 586 (Mo. App. 2006). The motion court did not clearly err in
finding that Thompson suffered no prejudice by defense counsel’s failure to move to
strike venireperson 38. Point denied.
CONCLUSION
The judgment is affirmed.
_____________________________ LISA WHITE HARDWICK, JUDGE ALL CONCUR.