Marcell Smith v. State of Missouri

• Court: Missouri Court of Appeals
• Decided: April 22, 2025
• Docket: ED112499
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION TWO

MARCELL SMITH, ) No. ED112499 ) Appellant, ) Appeal from the Circuit Court ) of St. Louis County vs. ) Cause No. 17SL-CC01173 ) STATE OF MISSOURI, ) Honorable Bruce F. Hilton ) Respondent. ) FILED: April 22, 2025

Introduction

Marcell Smith (Smith) appeals the judgment denying his Rule 29.151 amended motion for

post-conviction relief. Smith’s amended motion alleged that (1) trial counsel was ineffective for

not presenting mitigating evidence at sentencing, (2) appellate counsel was ineffective for failing

to raise the denial of a request for a mistrial, and (3) appellate counsel was ineffective for failing

to raise the denial of a motion to suppress identification. We disagree and affirm the motion court’s

judgment.

Factual and Procedural Background

On June 25, 2014, Smith shot and robbed Victim2 at his home after selecting clothes to

purchase from Victim. Victim was familiar with Smith from prior transactions, but did not know

1 All rule references are to the Missouri Supreme Court Rules (2024). 2 The personal identifying information of the victim has been omitted pursuant to section 509.520, RSMo (Cum. Supp. 2023). his name. Victim flagged down a police officer (Officer) and provided a description of the shooter.

Following his release from the hospital, Victim asked around the neighborhood, and an

acquaintance told Victim the shooter’s name. Victim found Smith’s photograph online, and

relayed this information to Officer. After Victim identified Smith in a photographic lineup, Officer

arrested Smith, who was wearing the same outfit he had on at the time of the shooting.

Smith was charged with first-degree assault, first-degree robbery, and two counts of armed

criminal action as a prior and persistent felony offender. The case proceeded to trial on December

7, 2015. A jury found Smith guilty of the lesser-included second-degree assault, first-degree

robbery, and two counts of armed criminal action. The trial court entered judgment on the jury’s

verdict and sentenced Smith to terms of imprisonment of 15 years for the second-degree assault,

18 years for the first-degree robbery, and 3 years each for the armed criminal actions, all counts to

be served concurrently. This Court affirmed the judgment and sentences in Smith v. State, 510

S.W.3d 364 (Mo. App. E.D. 2017). Smith sought post-conviction relief under Rule 29.15, and

appointed counsel timely filed an amended motion.

On November 17, 2023, the motion court held an evidentiary hearing. Trial counsel

testified that she was familiar with the value of mitigation evidence but that she did not present

mitigating evidence at Smith’s sentencing. Trial counsel could not recall whether she asked Smith

if he had any family members she could speak with about mitigation. Trial counsel further testified

that she filed a motion to suppress the identification made by Victim because she believed the

photographic lineup was suggestive and unreliable. Lastly, trial counsel testified about Victim

saying “Get ‘em” near the jury following his testimony. Trial counsel requested a mistrial, which

was denied. The trial court had inquired whether any of the jurors heard Victim’s comment. The

sole juror who reported hearing the comment was given instruction, outside the hearing of the rest

2 of the jurors, to not tell the other jurors what he heard and that the comment was not evidence.

The juror informed the trial court that he would not let the statement influence his deliberations.

Trial counsel renewed her request for a mistrial, which was denied.

Appellate counsel testified that after reviewing the claims and researching case law, she

determined the issues were not meritorious. Appellate counsel instead chose to raise two other

claims addressing evidentiary issues.

Smith testified that trial counsel never asked him questions about his background,

childhood, education, or other life experiences. Smith further testified that he had completed two

semesters at community college, and detailed his history of substance abuse and treatment. Smith

claimed that trial counsel did not ask if she could speak to any family members and that he would

have given names if asked. Smith stated that he would have referred her to his mom, one of his

old bosses, his siblings, and his aunts, and that his family would have shared details of Smith’s

history of childhood abuse. Responding to examination by the motion court, Smith testified that

his family was not present at sentencing because he was frustrated and did not want his family to

see him like that.

The motion court denied Smith’s motion for post-conviction relief. This appeal follows.

Standard of Review

Review of denial of post-conviction relief is limited to determining whether the motion

court’s findings and conclusions are clearly erroneous. Anderson v. State, 196 S.W.3d 28, 33 (Mo.

banc 2006) (per curiam). The motion court’s findings are presumed correct and the ruling “will

only be disturbed if, after a review of the entire record, the reviewing court is left with the definite

impression that a mistake has been made.” Id.

3 Discussion

To obtain post-conviction relief for ineffective assistance of counsel, Smith must satisfy

the two-pronged Strickland test. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Smith

is required to establish “by a preponderance of the evidence that (1) his counsel failed to exercise

the customary skill and diligence of a reasonably competent attorney under similar circumstances

and (2) his counsel’s deficient performance prejudiced him.” Anderson, 196 S.W.3d at 33. If a

movant fails to satisfy either prong of the Strickland test, then we need not consider the other and

the ineffective assistance claim fails. State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997).

To succeed on the first prong, Smith must overcome a strong presumption that trial

counsel’s representation was reasonable by pointing to specific actions or omissions that, given

the circumstances, fell outside the wide range of competent assistance. Anderson, 196 S.W.3d at

33. To succeed on the second prong, Smith must show a reasonable probability that but for trial

counsel’s errors, the outcome would have been different. Id.

Point I – Mitigation Evidence at Sentencing

In Point I, Smith claims that the motion court clearly erred in denying his motion for post-

conviction relief because trial counsel failed to present mitigating evidence at sentencing.

Specifically, Smith claims that trial counsel should have presented evidence that he was taking

college classes, and that he was abused as a child and struggled with substance abuse, which

ultimately led to his criminal history. We disagree because counsel did not perform unreasonably

in light of the circumstances and because Smith was not prejudiced.

Counsel has no absolute duty to present mitigating evidence at sentencing. Jones v. State,

767 S.W.2d 41, 43 (Mo. banc 1989). However, counsel has “a duty to make a reasonable

investigation of possible mitigating evidence or to make a reasonable decision that such an

4 investigation is unnecessary.” Id. “In particular, the reasonableness of a decision not to investigate

depends upon the strategic choices and information provided by the defendant.” Sanders v. State,

738 S.W.2d 856, 858 (Mo. banc 1987). In Jones, the movant alleged ineffective assistance of trial

counsel for failing to present mitigating evidence at the penalty phase. 767 S.W.2d at 43.

Specifically, Jones claimed that trial counsel should have called his relatives to testify and should

have introduced his army records into evidence. Id. Trial counsel had discussed Jones’s

background with him and Jones asked trial counsel to talk to his ex-wife, which he did. Id. at 44.

However, Jones did not ask trial counsel to contact any other relatives. Id. The Jones court found

trial counsel’s investigation into Jones’s background to be reasonable because Jones failed to

provide trial counsel with any information about his relatives. Id.

Smith cannot satisfy either prong of the analysis as to his mitigating information. Trial

counsel was not ineffective for failing to present evidence of Smith’s childhood abuse or history

of substance abuse because Smith failed to provide her with any information that would have

allowed trial counsel to gather mitigating evidence. Smith did not identify to trial counsel

particular people to call or what they would testify to. Smith asserts that trial counsel should have

instead elicited this information from him. Failing to present mitigating evidence under these

circumstances was not unreasonable. See id. at 43-44.

Although we need not inquire as to the second prong due to Smith’s failure to prove

ineffective assistance, we find that Smith was not prejudiced by any failure to present mitigating

evidence. First, Smith testified at sentencing. He could have elected to speak about any mitigating

factors but chose not to. Smith admitted that his family was not present at sentencing because he

did not want his family to “see [him] like that.” His own testimony is fatal to his argument.

5 Further, as to Smith’s claim that his criminal history was due to substance abuse, the trial

court was aware of Smith’s history of drug use due to Smith’s status as a prior and persistent felony

offender. Smith’s prior convictions included a prior for possession of a controlled substance.

Moreover, although Smith received the maximum 15-year sentence on the second-degree

assault, the 18-year sentence he received on the more serious first-degree robbery was well below

the 30-year maximum. The indeterminate nature of sentencing makes demonstrating prejudice

due to ineffective assistance of counsel nearly impossible. Bozeman v. State, 653 S.W.3d 132, 137

(Mo. App. E.D. 2022). Under these facts, Smith has not met his burden to show a reasonable

probability that he would have received a lesser sentence, and the motion court did not clearly err

by denying this claim. See Rule 29.15(k); Bozeman, 653 S.W.3d at 138. Point denied.

Point II – Motion for Mistrial

In his second point, Smith argues that the motion court clearly erred when denying his

motion for post-conviction relief based on the ineffective assistance of appellate counsel. Smith

asserts that appellate counsel should have raised the issue of the trial court’s denial of his motion

for mistrial following Victim’s unelicited comment near the jury. We disagree because appellate

counsel’s decision not to raise this claim was reasonable and Smith was not prejudiced.

To prove ineffective assistance of appellate counsel, Smith “must establish that counsel

failed to raise a claim of error that was so obvious that a competent and effective lawyer would

have recognized and asserted it.” Taylor v. State, 262 S.W.3d 231, 253 (Mo. banc 2008) (quoting

Williams v. State, 168 S.W.3d 433, 444 (Mo. banc 2005)). Secondly, he must demonstrate that if

appellate counsel had raised the claim, a reasonable probability of a different outcome on appeal

exists. Id.

6 Appellate counsel is not required to present every non-frivolous issue on appeal if counsel,

as a matter of professional judgment, decides against raising those points. Jones v. Barnes, 463

U.S. 745, 751 (1983). Appellate counsel may instead select the claims they believe to maximize

the client’s success on appeal. Morales v. State, 323 S.W.3d 466, 471 (Mo. App. E.D. 2010).

Appellate counsel’s decision to not raise the mistrial issue was reasonable because she

testified that she reviewed the claim and relevant case law and determined it was not viable. Smith

further fails to show that he was prejudiced by appellate counsel’s decision because the claim

would not have provided a reasonable probability of reversal had it been raised on direct appeal.

See Mallow v. State, 439 S.W.3d 764, 770 (Mo. banc 2014). If misconduct involving the jury

takes place during the trial, a showing that none of the jurors were improperly influenced is

sufficient to avoid a mistrial. State v. Teter, 724 S.W.2d 538, 540 (Mo. App. W.D. 1986). Courts

must consider “the extent to which [a] defendant’s right to a fair trial has been prejudiced.” Id.

Courts are afforded broad discretion in determining whether a new trial for juror misconduct is

necessary, and these decisions are reviewed for abuse of discretion. State v. Herndon, 224 S.W.3d

97, 101 (Mo. App. W.D. 2007). It is not an abuse of discretion to deny a request for new trial

“where there was no evidence that the jurors obtained any new, different, or conflicting evidence.”

Rogers v. Steuermann, 552 S.W.2d 293, 295 (Mo. App. 1977). Further, the trial court’s limiting

instruction was sufficient to cure any potential prejudice because “[j]urors are presumed to follow

the trial court’s instructions.” State v. Watson, 391 S.W.3d 18, 23 (Mo. App. E.D. 2012).

Here, only one juror heard the comment, which did not contain any “new, different, or

conflicting evidence.” Rogers, 552 S.W.2d at 295. Any potential prejudice was cured by the trial

court’s limiting instruction. Watson, 391 S.W.3d at 23. Point denied.

7 Point III – Motion to Suppress Identification Lastly, Smith alleges that the motion court clearly erred in denying his motion for post-

conviction relief because appellate counsel should have raised the issue of the trial court’s denial

of Smith’s motion to suppress identification. We disagree because appellate counsel’s decision

not to raise the claim was reasonable and Smith was not prejudiced.

Smith fails the first Strickland prong for the same reason as Point II, in that after reviewing

the claim and the case law, appellate counsel determined the claim would not succeed on appeal.

Appellate counsel’s decision to not raise the identification suppression issue was reasonable

because she reviewed relevant case law about identification suppression rulings and determined

that the case law did not support the claim. See McAllister v. State, 643 S.W.3d 124, 131 (Mo.

App. E.D. 2022) (“A decision made by counsel based on reasonable legal strategy is virtually

unchallengeable[.]” (internal quotation omitted)).

Smith also fails to show prejudice because this claim would not have a reasonable

probability of success on direct appeal. See Mallow, 439 S.W.3d at 770. Courts use a two-pronged

inquiry in determining the admissibility of identification testimony: (1) whether the procedures

used by the police were impermissibly suggestive and (2) whether, as a result, the identification

testimony is reliable. State v. Butler, 642 S.W.3d 364, 371 (Mo. App. E.D. 2022). Courts will

only analyze the second prong if the procedures were found to be impermissibly suggestive. Id.

Procedures used by police in administering identifications are “impermissibly ‘suggestive if the

witness’s identification of the defendant results from the procedure or actions of the police rather

than from the witness’s recollections.’” Id. (quoting State v. Gordon, 551 S.W.3d 678, 682 (Mo.

App. W.D. 2018)). This step focuses only on police officers’ actions. Id.

Smith claims that the pretrial identification procedure was unduly suggestive because

Victim’s memory of the shooter was tainted by his acquaintance telling him the shooter might be

8 Smith, Victim’s independent research, and Officer allegedly showing Victim a mugshot of Smith,

which Officer denied doing. Aside from Victim’s bare allegation that Officer showed him a

mugshot of Smith prior to the photographic lineup, the actions challenged were not those of the

police, which do not render Officer’s actions impermissibly suggestive. Point denied.

Conclusion

For the reasons set forth above, we affirm the motion court’s judgment.

_________________________ Virginia W. Lay, J.

Lisa P. Page, P.J., concurs. Rebeca Navarro-McKelvey, J., concurs.