In the Missouri Court of Appeals Eastern District DIVISION FIVE
JOVAN TYLER, ) No. ED111751 ) Appellant, ) Appeal from the City of St. Louis ) Circuit Court ) vs. ) Cause No. 1822-CC11510-01 ) STATE OF MISSOURI, ) Honorable Joseph P. Whyte ) Respondent. ) FILED: May 21, 2024
Opinion
Jovan Tyler (Appellant) appeals from the motion court’s judgment denying his Rule
29.15 1 amended motion for post-conviction relief from his jury conviction on second-degree
trafficking. In his sole point on appeal, Appellant argues the motion court clearly erred because
Trial Counsel was ineffective in failing to investigate and call his brother (Brother) as a witness
during his trial. Because Appellant did not show Trial Counsel performed ineffectively in his
investigation or in employing a reasonable trial strategy in choosing not to call Brother to testify,
the motion court did not clearly err in denying post-conviction relief. Accordingly, we affirm the
motion court’s judgment.
1 All Rule references are to Mo. R. Civ. P. (2018). Background
Appellant’s Trial
The State charged Appellant with four drug-related offenses arising out of the execution
of a search warrant of his home on October 2, 2014. Appellant was present during the search
and confirmed that the bedroom being searched belonged to him. Police found cocaine and
marijuana in a dresser in Appellant’s bedroom. Law enforcement also located a scale, a lease for
the home with Appellant’s name on it, a utility bill in Appellant’s name, and Appellant’s son’s
social security card in the bedroom. In the kitchen, police found cocaine and drug paraphernalia.
Police further found large denominations of cash in the home.
The case proceeded to trial. Appellant’s defense was that he did not know about or own
the drugs that were recovered, which he claimed belonged to Brother. Appellant did not testify.
The jury convicted Appellant on second-degree trafficking of cocaine and possession of
marijuana under thirty-five grams. The jury acquitted Appellant on possession with the intent to
distribute and possession of drug paraphernalia with the intent to use. The trial court sentenced
Appellant as a prior and persistent offender to ten years in prison for second-degree trafficking
and time served for misdemeanor possession. 2 Appellant directly appealed from his convictions
and sentences, which we affirmed in State v. Tyler, 553 S.W.3d 458 (2018) (per curiam).
Post-Conviction Proceedings
Appellant filed his pro se motion for post-conviction relief on October 25, 2018, in which
he raised the same claim as raised on appeal regarding Trial Counsel’s failure to investigate and
call Brother. The motion court appointed counsel, and a series of untimely amended motion
filings and untimely motion court rulings followed. Ultimately, following an abandonment
2 Appellant’s marijuana possession conviction has since been expunged pursuant to constitutional amendment. See MO. CONST. art. XIV, § 2.
2 inquiry, the motion court treated the amended motion as timely filed and granted an evidentiary
hearing. 3
At the evidentiary hearing, Trial Counsel was shown a client questionnaire that he created
to help familiarize himself with incarcerated clients. The questionnaire requests clients to
describe any investigation they would like Trial Counsel to conduct and to name and provide
contact information for potential witnesses. In Appellant’s questionnaire, Appellant identified
Brother, who he said had been incarcerated for the class C felony of possession of a controlled
substance. In his questionnaire response, Appellant indicated Brother had served his sentence
and was out of prison, and Appellant “need[ed] [Brother] to help [him].” Appellant provided
Brother’s name and telephone number, but did not include any further information pertaining to
Brother in the questionnaire. Trial Counsel recalled that he had looked up Brother’s case
information and determined that Brother had been facing drug-possession charges in a case that
had happened near or about the same location and close in time to the search that resulted in the
charges against Appellant. Trial Counsel attested to his familiarity with locating incarcerated
individuals and stated that he would not decline to call a witness just because that individual was
incarcerated.
The motion court took judicial notice of Brother’s criminal docket entries, which Trial
Counsel reviewed and placed in Appellant’s file case while preparing for Appellant’s trial in
December of 2016. Police officers testified at Appellant’s trial that Brother had been arrested
and charged with felony drug possession in September of 2014 at the same home that was the
target of the October 2014 search warrant that resulted in Appellant’s charges. Brother pleaded
3 We note that this Court initially remanded the matter due to an insufficient evidentiary record, and the motion court held a new evidentiary hearing on April 5, 2023 at which Appellant and Trial Counsel testified. The motion court incorporated Brother’s prior deposition testimony into the record.
3 guilty in February of 2015 and was sentenced to fifteen years in prison and placed on a
suspended execution of sentence (SES). Brother’s file did not show that Brother’s attorney
formally withdrew. Brother was placed on a three-year probation beginning May 2016 following
completion of a long-term substance abuse treatment program, with execution of his fifteen-year
prison sentence to remain suspended assuming Brother complied with the terms of probation.
Trial Counsel testified that he contacted Brother’s attorney of record to ask him whether
he could speak to Brother about Appellant’s case, but he did not hear back. Trial Counsel stated
that he believed ethical guidelines prevented him from speaking with someone who is
represented by an attorney without that attorney’s permission. Trial Counsel stated he did not
reach out to Brother in the absence of approval by Brother’s attorney because he “didn’t have
any good reason to believe that [Brother] would admit responsibility for the crimes and subject
himself to significant punishment.” Trial Counsel testified that his defense strategy was to place
responsibility for the drugs found inside Appellant’s home on Brother, which he discussed with
Appellant prior to trial.
Appellant testified that he told Trial Counsel to contact Brother in his questionnaire. The
motion court asked Appellant whether he ever spoke with Trial Counsel about contacting
Brother other than the questionnaire, and Appellant could not remember. Appellant recalled
speaking with Trial Counsel multiple times about blaming Brother for the drugs as a trial
strategy. Appellant testified that he never spoke to Brother during the pendency of his case.
As part of the record of the evidentiary hearing, Brother testified via deposition while on
work release from an out-of-state prison. Brother stated he would have testified at Appellant’s
trial if called. Brother testified that he had sometimes stayed with Appellant in 2014.
Specifically, when asked if he ever stayed with Brother in 2014, he answered: “Yes, I have, but
4 no I haven’t, at the same time.” Brother explained he would hang out at Appellant’s home when
having domestic troubles with his wife, and he would usually sleep in Appellant’s bedroom on a
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In the Missouri Court of Appeals Eastern District DIVISION FIVE
JOVAN TYLER, ) No. ED111751 ) Appellant, ) Appeal from the City of St. Louis ) Circuit Court ) vs. ) Cause No. 1822-CC11510-01 ) STATE OF MISSOURI, ) Honorable Joseph P. Whyte ) Respondent. ) FILED: May 21, 2024
Opinion
Jovan Tyler (Appellant) appeals from the motion court’s judgment denying his Rule
29.15 1 amended motion for post-conviction relief from his jury conviction on second-degree
trafficking. In his sole point on appeal, Appellant argues the motion court clearly erred because
Trial Counsel was ineffective in failing to investigate and call his brother (Brother) as a witness
during his trial. Because Appellant did not show Trial Counsel performed ineffectively in his
investigation or in employing a reasonable trial strategy in choosing not to call Brother to testify,
the motion court did not clearly err in denying post-conviction relief. Accordingly, we affirm the
motion court’s judgment.
1 All Rule references are to Mo. R. Civ. P. (2018). Background
Appellant’s Trial
The State charged Appellant with four drug-related offenses arising out of the execution
of a search warrant of his home on October 2, 2014. Appellant was present during the search
and confirmed that the bedroom being searched belonged to him. Police found cocaine and
marijuana in a dresser in Appellant’s bedroom. Law enforcement also located a scale, a lease for
the home with Appellant’s name on it, a utility bill in Appellant’s name, and Appellant’s son’s
social security card in the bedroom. In the kitchen, police found cocaine and drug paraphernalia.
Police further found large denominations of cash in the home.
The case proceeded to trial. Appellant’s defense was that he did not know about or own
the drugs that were recovered, which he claimed belonged to Brother. Appellant did not testify.
The jury convicted Appellant on second-degree trafficking of cocaine and possession of
marijuana under thirty-five grams. The jury acquitted Appellant on possession with the intent to
distribute and possession of drug paraphernalia with the intent to use. The trial court sentenced
Appellant as a prior and persistent offender to ten years in prison for second-degree trafficking
and time served for misdemeanor possession. 2 Appellant directly appealed from his convictions
and sentences, which we affirmed in State v. Tyler, 553 S.W.3d 458 (2018) (per curiam).
Post-Conviction Proceedings
Appellant filed his pro se motion for post-conviction relief on October 25, 2018, in which
he raised the same claim as raised on appeal regarding Trial Counsel’s failure to investigate and
call Brother. The motion court appointed counsel, and a series of untimely amended motion
filings and untimely motion court rulings followed. Ultimately, following an abandonment
2 Appellant’s marijuana possession conviction has since been expunged pursuant to constitutional amendment. See MO. CONST. art. XIV, § 2.
2 inquiry, the motion court treated the amended motion as timely filed and granted an evidentiary
hearing. 3
At the evidentiary hearing, Trial Counsel was shown a client questionnaire that he created
to help familiarize himself with incarcerated clients. The questionnaire requests clients to
describe any investigation they would like Trial Counsel to conduct and to name and provide
contact information for potential witnesses. In Appellant’s questionnaire, Appellant identified
Brother, who he said had been incarcerated for the class C felony of possession of a controlled
substance. In his questionnaire response, Appellant indicated Brother had served his sentence
and was out of prison, and Appellant “need[ed] [Brother] to help [him].” Appellant provided
Brother’s name and telephone number, but did not include any further information pertaining to
Brother in the questionnaire. Trial Counsel recalled that he had looked up Brother’s case
information and determined that Brother had been facing drug-possession charges in a case that
had happened near or about the same location and close in time to the search that resulted in the
charges against Appellant. Trial Counsel attested to his familiarity with locating incarcerated
individuals and stated that he would not decline to call a witness just because that individual was
incarcerated.
The motion court took judicial notice of Brother’s criminal docket entries, which Trial
Counsel reviewed and placed in Appellant’s file case while preparing for Appellant’s trial in
December of 2016. Police officers testified at Appellant’s trial that Brother had been arrested
and charged with felony drug possession in September of 2014 at the same home that was the
target of the October 2014 search warrant that resulted in Appellant’s charges. Brother pleaded
3 We note that this Court initially remanded the matter due to an insufficient evidentiary record, and the motion court held a new evidentiary hearing on April 5, 2023 at which Appellant and Trial Counsel testified. The motion court incorporated Brother’s prior deposition testimony into the record.
3 guilty in February of 2015 and was sentenced to fifteen years in prison and placed on a
suspended execution of sentence (SES). Brother’s file did not show that Brother’s attorney
formally withdrew. Brother was placed on a three-year probation beginning May 2016 following
completion of a long-term substance abuse treatment program, with execution of his fifteen-year
prison sentence to remain suspended assuming Brother complied with the terms of probation.
Trial Counsel testified that he contacted Brother’s attorney of record to ask him whether
he could speak to Brother about Appellant’s case, but he did not hear back. Trial Counsel stated
that he believed ethical guidelines prevented him from speaking with someone who is
represented by an attorney without that attorney’s permission. Trial Counsel stated he did not
reach out to Brother in the absence of approval by Brother’s attorney because he “didn’t have
any good reason to believe that [Brother] would admit responsibility for the crimes and subject
himself to significant punishment.” Trial Counsel testified that his defense strategy was to place
responsibility for the drugs found inside Appellant’s home on Brother, which he discussed with
Appellant prior to trial.
Appellant testified that he told Trial Counsel to contact Brother in his questionnaire. The
motion court asked Appellant whether he ever spoke with Trial Counsel about contacting
Brother other than the questionnaire, and Appellant could not remember. Appellant recalled
speaking with Trial Counsel multiple times about blaming Brother for the drugs as a trial
strategy. Appellant testified that he never spoke to Brother during the pendency of his case.
As part of the record of the evidentiary hearing, Brother testified via deposition while on
work release from an out-of-state prison. Brother stated he would have testified at Appellant’s
trial if called. Brother testified that he had sometimes stayed with Appellant in 2014.
Specifically, when asked if he ever stayed with Brother in 2014, he answered: “Yes, I have, but
4 no I haven’t, at the same time.” Brother explained he would hang out at Appellant’s home when
having domestic troubles with his wife, and he would usually sleep in Appellant’s bedroom on a
pile of clothes because the air conditioner was located there. Brother said he was arrested two
weeks before Appellant was arrested but was released the same day and went to Appellant’s
home, where he was “welcome, any time.” When asked how many times he visited Appellant’s
home between his arrest and Appellant’s arrest, Brother initially could not estimate but later
stated he was there “every day.”
Brother admitted to using cocaine and marijuana during that time period due to his
addiction, and he stated he had cocaine and heroin at Appellant’s home. When shown the
exhibits from Appellant’s trial, Brother identified and claimed ownership of the marijuana and
cocaine found in Appellant’s bedroom dresser, the scale from Appellant’s bedroom, and the
cocaine from the kitchen. Brother said that Appellant did not see him place the drugs in the
dresser or kitchen. He did not recall whether he spoke with Appellant’s Trial Counsel. Brother
believed that during 2016 he was confined in prison. Brother testified that had he been called by
Appellant’s attorney, he would have answered the same way he did in his deposition.
Motion Court’s Judgment
The motion court denied Appellant’s amended motion, finding Trial Counsel did not
perform ineffectively. The motion court found Brother’s deposition testimony was not credible
and held that Appellant had not proven, by a preponderance of the evidence, that Brother would
have testified as alleged. The motion court found Trial Counsel reasonably determined that
Brother would not have testified that he committed the charged offenses. This appeal follows.
Standard of Review
We review a motion court’s denial of post-conviction relief for whether the motion
court’s findings of fact and conclusions of law were clearly erroneous. Rule 29.15(k). “A 5 judgment is clearly erroneous when, in light of the entire record, the court is left with the definite
and firm impression that a mistake has been made.” Shockley v. State, 579 S.W.3d 881, 892
(Mo. banc 2019) (internal quotation omitted). We presume the motion court’s findings of fact
are correct. Id. (internal citation omitted).
Discussion
In his Rule 29.15 amended motion, Appellant contends that Trial Counsel was ineffective
for failing to call his Brother as a witness at trial. In this case, and under these facts, we hold that
Trial Counsel did not perform ineffectively, as Appellant cannot satisfy the two-prong test for
ineffectiveness set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, in
order to prevail on a motion for post-conviction relief, the movant must satisfy both prongs of
the standard for ineffective assistance of which are: (1) that trial counsel performed ineffectively
by failing “to exercise the level of skill and diligence reasonably competent trial counsel would
in a similar situation” and (2) that trial counsel’s ineffective performance prejudiced the outcome
of his trial. Shockley, 579 S.W.3d at 892 (quoting Strickland, 466 U.S. at 687). A movant must
satisfy both prongs by a preponderance of the evidence, and if the movant fails to meet one
prong then we need not consider the other. Hendricks v. State, 519 S.W.3d 510, 514 (Mo. App.
E.D. 2017) (internal citation omitted).
Under the performance prong, a movant “must overcome the strong presumption trial
counsel’s conduct was reasonable and effective” by identifying “specific acts or omissions of
counsel that, in light of all the circumstances, fell outside the wide range of professional
competent assistance.” Shockley, 579 S.W.3d at 892 (internal quotations omitted). “[S]trategic
choices made after a thorough investigation of the law and the facts relevant to plausible
opinions are virtually unchallengeable[.]” Id. (quoting Dorsey v. State, 448 S.W.3d 276, 287
6 (Mo. banc 2014) (quoting Strickland, 466 U.S. at 690)). Under the prejudice prong, a movant
must show “there is a reasonable probability that, but for [trial] counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. (internal quotation omitted).
Point I: Trial Counsel’s failure to call Appellant’s Brother as a witness
Appellant’s amended motion contends Trial Counsel was ineffective for failing to
investigate and call Brother as a witness because Brother would have testified that the drugs
attributed to Appellant actually belonged to him. Appellant argued that Trial Counsel’s failure to
call Brother prejudiced him, because the evidence would have corroborated the defense theory
that Appellant had no knowledge or ownership of the drugs and established a reasonable
probability that the jury would have acquitted Appellant on all counts. We disagree.
A “[m]ovant can prevail on a claim for ineffective assistance of counsel based on trial
counsel’s alleged failure to investigate only if he can demonstrate: (1) trial ‘counsel’s failure to
investigate was unreasonable’ and (2) [m]ovant ‘was prejudiced as a result of [trial] counsel’s
unreasonable failure to investigate.’” Id. at 897 (quoting Barton v. State, 432 S.W.3d 741, 759
(Mo. banc 2014)). “In any ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.” Id. (quoting Collings v. State, 543 S.W.3d 1, 16 (Mo. banc
2018) (quoting Strickland, 466 U.S. at 691)). “Ordinarily the choice of witnesses is a matter of
trial strategy and will support no claim of ineffective assistance of counsel.” Id. at 906 (quoting
Barton, 432 S.W.3d at 750). “This is because ‘strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable.’” Id.
(quoting Barton, 432 S.W.3d at 749).
To prove ineffective assistance for failure to call a witness, a movant must demonstrate:
“(1) trial counsel knew or should have known of the existence of the witness; (2) the witness 7 could be located through reasonable investigation; (3) the witness would testify; and (4) the
witness’s testimony would have produced a viable defense.” Id. (internal quotation omitted).
“Counsel may choose to call or not call almost any type of witness or to introduce or not
introduce any kind of evidence for strategic considerations.” Id. at 908 (quoting Vaca v. State,
314 S.W.3d 331, 337 (Mo. banc 2010)). When considering the duty to investigate a potential
witness, “reasonably diligent counsel may draw a line when they have good reason to think
further investigation would be a waste.” Id. at 907 (internal quotation omitted).
Under this record, we agree with the motion court that Trial Counsel did not perform
ineffectively. After Appellant identified Brother as a potential witness who could help his case,
Trial Counsel demonstrated due diligence by investigating the status of Brother’s drug charges
and attempting to contact Brother’s attorney. See id. (internal quotation omitted). We must
focus on what Trial Counsel knew at the time he conducted his investigation. See Sanders v.
State, 738 S.W.2d 856, 858 (Mo. banc 1987) (quoting Strickland, 466 U.S. at 689 (noting we
must attempt “to eliminate the distorting effects of hindsight” and instead “evaluate the conduct
from [trial] counsel’s perspective at the time”)). Trial Counsel knew what Appellant told him—
that he wanted Brother to help, not specifically that Brother allegedly would admit to committing
all the crimes with which Appellant was charged. Through investigation, Trial Counsel
determined that Brother had pleaded guilty to drug charges and that his file indicated he was
represented by counsel, whom Trial Counsel contacted but received no response. Trial Counsel
had multiple discussions with Appellant about the strategy of blaming Brother for the drugs
recovered from Appellant’s home.
In line with this theory of defense, Trial Counsel considered calling Brother to testify and
decided against it for multiple reasons, including because he believed Brother was still
8 represented by counsel in his criminal case—which did not indicate the attorney’s withdrawal—
and, critically to the motion court’s judgment, because he believed Brother was unlikely to admit
responsibility and subject himself to possible prosecution for the offenses charged against
Appellant. We find Trial Counsel’s belief to be reasonable in light of the three-year statute of
limitations for a felony which, had Brother confessed to Appellant’s crimes, may have exposed
Brother to additional charges. See § 556.036.2(1), RSMo (Cum. Supp. 2013); Lowery v. State,
650 S.W.2d 692, 694–95 (Mo. App. S.D. 1983) (finding trial counsel was not ineffective in
choosing not to call a concurrently-represented co-defendant to testify because he believed the
co-defendant would either invoke the Fifth Amendment 4 and refuse to testify or testify that the
movant had fully participated in the offense).
In Sanders, the Supreme Court of Missouri observed that in Lowery and other similar
cases, trial counsel “decided not to investigate potential witnesses based on unconfirmed beliefs
that these particular witnesses would provide no information or testimony beneficial to their
clients[,]” yet Missouri courts found trial counsel’s strategic decisions were reasonable given the
particular circumstances of each case. Sanders, 738 S.W.2d at 860 (emphasis added). In
Sanders, trial counsel was found to have performed within the “bounds of prevailing professional
norms” in declining to further investigate a witness with whom she spoke only briefly, whose
own trial was still pending, and who she believed would not be permitted to testify by her
attorney. Id. at 859–60.
The facts at bar are as compelling as the facts in Lowery or Sanders. See id.; Lowery, 650
S.W.2d at 694. Here, Trial Counsel attempted to contact Brother’s attorney and Trial Counsel
4 U.S. CONST. AMEND. 5; see McFadden v. State, 619 S.W.3d 434, 459 (Mo. banc 2020) (internal quotation omitted) (“Under the protections of the Fifth Amendment, an individual cannot be compelled ‘to provide testimonial evidence against himself which may then be used to prosecute him.’”).
9 had a reasonable, albeit unconfirmed assessment of the risk that were Brother called as a witness,
he may have refused to testify or, worse, blame Appellant for the drugs in order to avoid a risk of
further prosecution. Thus, we cannot say that Trial Counsel’s decision fell below the level of
skill and diligence of reasonably competent trial counsel. See Shockley, 579 S.W.3d at 892
(internal citation omitted).
Indeed, a trial counsel exhibits reasonable trial strategy in declining to call a potentially
unreliable witness whose testimony will not assuredly aid the defense. See State v. Johnson, 901
S.W.2d 60, 63 (Mo. banc 1995) (finding trial counsel exercised reasonable strategy in declining
to call a convicted criminal whose testimony “could have done more harm than good” because
“if the jury questioned [the witness’s] credibility, it also may have questioned the credibility of
[the movant’s] entire theory of defense”). Brother’s testimony was not necessary to advance the
defense strategy, and in fact could have weakened the strategy depending on what Brother
actually would have said and whether he would be found credible. Thus, it is equally reasonable
that Brother’s testimony, one of a convicted drug offender, may have detracted from the
credibility of the Appellant’s defense.
The motion court expressly found Brother’s deposition testimony was not credible. Our
deference to the motion court’s credibility determinations extends to deposition testimony. See
Symington v. State, 638 S.W.3d 596, 599 (Mo. App. W.D. 2021) (citing Durst v. State, 584
S.W.3d 817, 820–21 (Mo. App. E.D. 2019) (noting “the motion court’s authority to assess
deposition testimony is no different from its authority to assess in-person testimony”)). “In
exercising its fact-finding function, the motion court [is] free to consider, evaluate, and
determine the credibility of [m]ovant’s evidence, in whatever form offered and admitted, and
10 this court defers to that function and those determinations.” Id. (quoting Durst, 584 S.W.3d at
821).
Because Appellant did not demonstrate ineffective performance of Trial Counsel, the
motion court did not err in denying Appellant’s amended motion for post-conviction relief. See
Rule 29.15(k); Hendricks, 519 S.W.3d at 514 (internal citation omitted). The point on appeal is
denied.
Conclusion
The judgment of the motion court is affirmed.
Rebeca Navarro-McKelvey, J.
Thomas C. Clark, II., C.J., and Thomas C. Albus, Sp.J., concur.