Jones v. State

389 S.W.3d 253, 2012 WL 6686432, 2012 Mo. App. LEXIS 1648
Missouri Court of Appeals·Decided December 26, 2012·No. No. ED 98065·Published·Cited by 9 cases

Opinion

KURT S. ODENWALD, Judge.

Introduction

Appellant Alfred Jones (“Jones”) appeals from the judgment of the motion court denying his Rule 29.151 motion for post-conviction relief without an evidentia-ry hearing. After a jury trial, Jones was found guilty of one count of forcible rape, in violation of Section 566.030,2 two counts of forcible sodomy, in violation of Section 566.060, one count of kidnapping, in violation of Section 565.110, and two counts of attempted forcible sodomy, in violation of Section 566.060, and the trial court entered judgment accordingly. We affirmed the trial court’s judgment on direct appeal in State v. Jones, 341 S.W.3d 190 (Mo.App. E.D.2011).

On appeal from the denial of his motion for post-conviction relief, Jones asserts that trial counsel was ineffective for failing to object, request a curative instruction, or request a mistrial after the State characterized Jones as a “predator” and his victims as the “perfect prey” during closing argument. Jones alleges such argument was improper personalization and a comment on his future dangerousness. Jones also claims that trial counsel was ineffective for failing to request a curative instruction or a mistrial when the prosecutor called Jones’s defense “a load of crap” and “smoke and mirrors” during closing argument. Finding no clear error, we affirm the judgment of the motion court.

Factual and Procedural History

Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. At approximately 5:30 a.m. on July 15, 2009, Jones sexually assaulted two homeless women on a street in downtown St. Louis. Jones approached the first woman, T.V., with his genitals in his hand and demanded that she perform oral sex. Jones grabbed T.V.’s head and forced her toward his penis but T.V. was able to pull herself up. Jones then pushed her against a fence, pulled her pants down, and rubbed his penis against her backside. T.V. lied and said her boyfriend was coming, which caused Jones to walk away. T.V. then walked to Centenary Church, which offered meals for the homeless in its dining hall, and told an employee that she had been attacked.

A short time later, Jones approached L.R. with his genitals exposed and de[256] manded that she perform oral sex. Jones took L.R. to a gangway where he forced her to perform oral sex and raped her vaginally and anally. After the sexual assault, Jones took L.R. to Centenary Church for coffee. When Jones and L.R. walked in, an employee saw that L.R. was bloody and shaking and asked L.R. what happened to her. L.R. told the employee that she had been raped by Jones. The police apprehended Jones shortly thereafter.

Jones was charged with one count of forcible rape, two counts of forcible sodomy, one count of kidnapping, and two counts of attempted forcible sodomy. At trial, the State presented testimony and physical evidence of the assaults, including DNA evidence of L.R.’s blood on Jones’s underwear, Jones’s semen on L.R.’s cheek and underwear, and photographs showing cuts on L.R.’s vagina as well as redness and swelling to her anus and thighs. A jury found Jones guilty on all counts. Jones was sentenced to 20 years in the Missouri Department of Corrections for each count of forcible rape and forcible sodomy and five years in the Missouri Department of Corrections for each count of kidnapping and attempted forcible sodomy, with the sentences to be served consecutively.

This Court affirmed Jones’s conviction and sentence on direct appeal in State v. Jones, 341 S.W.3d 190 (Mo.App. E.D.2011). Jones subsequently filed an amended motion for postconviction relief, which was denied without an evidentiary hearing. This appeal follows.

Points on Appeal

In his first point on appeal, Jones argues that the motion court erred in denying his Rule 29.15 motion for post-conviction relief because the State’s characterization of Jones as a “predator” and the victims as the “perfect prey” during closing argument was improper personalization and a comment on his future dangerousness. Jones claims counsel’s failure to object on those bases or to request a curative instruction or mistrial constituted ineffective assistance of counsel. In his second point on appeal, Jones argues that the motion court also erred in denying his motion for post-conviction relief without an evidentia-ry hearing because counsel was ineffective for failing to request a curative instruction or mistrial when the prosecutor characterized Jones’s defense “a load of crap” and “smoke and mirrors” during closing argument.

Standard of Review

This Court reviews the denial of a Rule 29.15 motion for post-conviction relief only to determine whether the motion court’s findings of fact or conclusions of law are “clearly erroneous.” Rule 29.15(k); Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). The motion court’s findings are presumed correct and will only be overturned if the ruling leaves the appellate court with a “definite and firm impression that a mistake has been made.” Zink, 278 S.W.3d at 175.

Discussion

I. Counsel was not ineffective for failing to object to the State’s reference to Jones as a “predator” and to the victims as his “perfect prey.”

Jones’s first point on appeal focuses on the State’s reference to Jones as a “predator” and the victims as the “perfect prey” during closing argument. We reject Jones’s claim that his trial counsel was ineffective for failing to object to these statements or to request a curative instruction or mistrial.

[257] An evidentiary hearing is not required where “the motion and the files and records of the case conclusively show that movant is entitled to no relief.” Rule 29.15(h). Appellant is entitled to an evi-dentiary hearing only if his motion meets three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters of which movant complains must have resulted in prejudice. Morrow v. State, 21 S.W.3d 819, 822-23 (Mo. banc 2000).

To obtain an evidentiary hearing for claims related to the ineffective assistance of counsel, the movant must allege facts, not refuted by the record, showing that counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney and that the movant was thereby prejudiced. Id. at 823 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To demonstrate prejudice, the facts alleged must show a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Id. “Mere failure to object is not ineffective assistance of counsel, and trial counsel is not ineffective for failing to make non-meritorious objections.” Zink, 278 S.W.3d at 188.

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Jones v. State, 389 S.W.3d 253, 2012 WL 6686432, 2012 Mo. App. LEXIS 1648 (Mo. Ct. App. 2012).

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