Jennings v. State

406 S.W.3d 52, 2013 WL 1624888, 2013 Mo. App. LEXIS 476
CourtMissouri Court of Appeals
DecidedApril 16, 2013
DocketNo. SD 31770
StatusPublished
Cited by3 cases

This text of 406 S.W.3d 52 (Jennings 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
Jennings v. State, 406 S.W.3d 52, 2013 WL 1624888, 2013 Mo. App. LEXIS 476 (Mo. Ct. App. 2013).

Opinion

DANIEL E. SCOTT, P.J.

Jurors found Bradley Jennings guilty of murdering his wife. His direct appeal failed. See State v. Jennings, 322 S.W.3d 598 (Mo.App.2010), which describes the offense, investigation, and criminal proceedings.

Jennings moved for post-conviction relief, ultimately raising 97 complaints about his lawyer and the trial. The judge who handled the murder trial held an evidentia-ry hearing and denied the motion.

Jennings now appeals that judgment, raising six points. By rule,1 we determine only whether the motion court’s findings and conclusions are clearly erroneous. “Those findings are presumptively correct; we defer to that court’s credibility decisions; and we will reverse only if our review of the whole record firmly and definitely convinces us that a mistake was made.” Mayes v. State, 349 S.W.3d 413, 416 (Mo.App.2011).

Applying these standards, we find no clear error and affirm the judgment.

Ineffective Assistance—

General Principles

To prove ineffective assistance of counsel (IAC), a movant must show that (1) counsel did not exercise customary skill and diligence of a reasonably competent attorney in similar circumstances, and (2) the movant was prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Counsel is not ineffective per Strickland unless representation was objectively unreasonable. It is strongly presumed that counsel acted within the wide range of reasonable professional assistance. The question is whether an attorney made errors so serious that he did not function as counsel guaranteed by the Sixth Amendment. Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011).

To overcome Strickland ⅛ high bar is never easy. Id. at 788. Courts are to apply Strickland with scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the adversary process. Id. Thus, our scrutiny of counsel’s performance is highly deferential, indulging a strong presumption that counsel acted reasonably, and making every effort to eliminate distorting effects of hindsight and evaluate the conduct from counsel’s perspective at the time. Keightley v. State, [56]*56291 S.W.3d 367, 368 n. 1 (Mo.App.2009). “The question is whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” Harrington, 131 S.Ct. at 788 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

Trial Counsel Complaints (Points I-IV)

Jennings’ first four points are IAC claims against trial counsel Darrell Deputy. Deputy testified, at the PCR hearing, that he had tried some 25 murder cases and several hundred other cases. The defense theory at this trial was reasonable doubt, focusing on weaknesses in the state’s case, especially gaps in the forensic evidence.

We will note Deputy’s testimony further as we address these points, always recalling our deference to the motion court findings that Deputy’s testimony was credible and his decisions were matters of sound trial strategy.

Point I

Jennings complains that Deputy did not interview or call “people” — later identified in his argument as Dale Potter and Scott Rice — as trial witnesses. The motion court did not clearly err in rejecting this claim. The amended PCR motion did not cite a failure to call these men at trial.2 Deputy credibly testified, and the motion court found, that Deputy interviewed them both. Point I fails.

Point II

Jennings complains that Deputy did not take depositions. The motion court did not clearly err in finding that neither Strickland prong was proved on this claim.

As to the performance prong, Deputy testified that he had “voluminous” investigative reports and was “pretty comfortable” that he “knew what every witness was going to say” and what the state’s proof would be. He chose not to depose the state’s witnesses to avoid highlighting or alerting the state to weaknesses in its case. This was not rare for Deputy, even in major felony cases. Cost was not a factor in his decision. The record, as we must view it, supports the following motion court findings which are not clearly erroneous:

Mr. Deputy testified he understands the value of depositions and has taken many before. He discussed the decision not to do any depositions with Movant. The decision not to take depositions was a matter of sound trial strategy. Mr. Deputy did not want to alert witnesses to weaknesses in their testimony by deposing them.

As to the prejudice prong, Jennings does not explain how any deposition might have changed the outcome. The motion court found, and we agree, that Jennings did not show what evidence might have been found by additional formal discovery, including depositions, or how it would have improved Jennings’ trial position and provided Jennings a viable defense. We reject Point II.

Point III

Jennings asserts that Deputy did not notify him of his right to testify at trial. The motion court did not clearly err in finding that this claim was not in the amended PCR motion, was not proved at the PCR hearing, and was refuted by this record made out of the jury’s presence at the criminal trial:

[57]*57[DEPUTY]: Mr. Jennings, as your counsel, have I advised you that during the course of your criminal trial that you have the right to take the witness stand if you choose to do so?
[JENNINGS]: Yes.
[DEPUTY]: Did I ask you to consider whether or not you wanted to do that, and take whatever time you needed to take in order to consider that?
[JENNINGS]: Yes.
[DEPUTY]: In fact, you and I met last night and yesterday and this morning, is that correct?
[JENNINGS]: Yes.
THE COURT: Can you hear?
COURT REPORTER: Barely.
THE COURT: Go ahead, Darrell.
[DEPUTY]: And after these conversations, have you advised me of your decision of whether or not you wanted to testify?
[JENNINGS]: Yes.
[DEPUTY]: And what was the decision? [JENNINGS]: Not to.
[DEPUTY]: Was that decision one that you made?
[JENNINGS]: Yes.
[DEPUTY]: And have you given some thought about what you should and should not do?
[JENNINGS]: Yes.
[DEPUTY]: Okay. And no one has coerced you into making that decision have they?
[JENNINGS]: No.
[DEPUTY]: Your Honor, I don’t have any other questions.
THE COURT: All right. Mr.

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Related

Jennings v. Nash
W.D. Missouri, 2019
State ex rel. Hawley v. Beger
549 S.W.3d 507 (Missouri Court of Appeals, 2018)
Otis Cornelious v. State of Missouri
526 S.W.3d 161 (Missouri Court of Appeals, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
406 S.W.3d 52, 2013 WL 1624888, 2013 Mo. App. LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jennings-v-state-moctapp-2013.