Rios v. State

368 S.W.3d 301, 2012 WL 2094438, 2012 Mo. App. LEXIS 803
CourtMissouri Court of Appeals
DecidedJune 12, 2012
DocketNo. WD 73930
StatusPublished
Cited by28 cases

This text of 368 S.W.3d 301 (Rios 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
Rios v. State, 368 S.W.3d 301, 2012 WL 2094438, 2012 Mo. App. LEXIS 803 (Mo. Ct. App. 2012).

Opinion

CYNTHIA L. MARTIN, Judge.

Steven Rios (“Rios”) appeals from the motion court’s denial of his Rule 29.15 motion after an evidentiary hearing. Rios claims that the motion court erred in denying his motion because he received ineffective assistance of counsel to his prejudice in that trial counsel: (1) failed to investigate and call as witnesses, or examine in cross-examination, former Columbia Police [304]*304Officer Sean Moore (“Moore”)1 and Columbia Police Officer Jason Jones (“Officer Jones”) on the subject of whether the unilateral vascular neck restraint technique was taught at The Law Enforcement Training Institute (“the Academy5’) at the University of Missouri the year that Rios attended; (2) failed to investigate and call as a witness journalist Mike Wells (“Wells”) to testify regarding an article (“the Article”) that he had written regarding the death of the victim, Jesse Valencia (“Valencia”), in which he purported to report Ryan Kepner’s (“Kepner”) statement about the time frame in which he overheard a disturbance coming from Valencia’s apartment on the morning that Valencia’s body was discovered; (3) failed to elicit on cross-examination of Deputy Chief of the Columbia Police Department Stephen Monticelli (“Deputy Chief Monticel-li”) 2 that during a phone call with Rios, during which Rios threatened suicide, Rios asked Deputy Chief Monticelli to “continue to work the case;” (4) unreasonably called DNA expert witness Dr. Dean Stetler (“Dr. Stetler”) because his testimony was more harmful than helpful; and (5) failed to call Rios to testify on his own behalf despite his wish to do so. We affirm.

Factual and Procedural History3

On June 5, 2004, college student Valencia was found murdered in a field outside his apartment. Valencia’s throat had been slit. Valencia had been involved in a sexual relationship with Rios just prior to his death. During the relationship with Valencia, and at the time of Valencia’s murder, Rios was employed as a Columbia, Missouri, police officer.

In 2005, Rios was tried and convicted of murder in the first degree and armed criminal action. The conviction was reversed, and the case remanded for a new trial in State v. Rios, 284 S.W.3d 412 (Mo.App. W.D.2007), due to the trial court’s error in admitting two hearsay statements made by Valencia.

In December 2008, Rios was re-tried by a jury and found guilty of murder in the second degree and armed criminal action. The jury recommended sentences of life imprisonment for murder in the second degree and twenty-three years imprisonment for armed criminal action. On January 16, 2009, the trial court imposed the sentences recommended by the jury and ordered that they be served consecutively. Rios’s convictions were affirmed on direct appeal in State v. Rios, 314 S.W.3d 414 (Mo.App. W.D.2010).

On September 27, 2010, Rios timely filed his pro se Rule 29.15 motion. Rios was appointed post-conviction counsel who timely filed an amended Rule 29.15 motion. After an evidentiary hearing, the motion court denied Rios’s motion. Rios appeals.

Standard of Review

“Appellate review of the trial court’s action on the motion filed under [] Rule 29.15 shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 29.15(k). “ ‘The motion court’s findings and conclusions are clearly erroneous if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made.’” Roberts v. State, 356 S.W.3d 196, 199 (Mo.[305]*305App. W.D.2011) (quoting Clay v. State, 310 S.W.3d 733, 735 (Mo.App. W.D.2010)).

Analysis

To establish ineffective assistance of counsel, Rios must prove by a preponderance of the evidence: “(1) that counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney; and (2) that [Rios] was thereby prejudiced.” Haskett v. State, 152 S.W.3d 906, 909 (Mo.App. W.D.2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). If Rios fails to demonstrate either prong of the Strickland test, his post-conviction motion will be denied. Id.

To establish the performance prong, Rios bears a heavy burden “and must overcome a strong presumption that [his] counsel provided competent assistance.” Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002). Rios must demonstrate “ ‘that counsel’s representation fell below an objective standard of reasonableness.’” Id. at 426 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). To demonstrate this, Rios “must identify specific acts or omissions of counsel that resulted from unreasonable professional judgment, and the ‘court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance.’ ” Id. (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). We judge the reasonableness of counsel’s conduct based on the facts of each case. Williams v. State, 205 S.W.3d 300, 305 (Mo.App. W.D.2006).

To establish prejudice, Rios must show that there is a reasonable probability that but for his counsel’s ineffectiveness, the result would have been different. Patterson v. State, 110 S.W.3d 896, 900 (Mo.App. W.D.2003). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Id. (citations omitted). A showing of error that could have a conceivable effect on the outcome is insufficient. Williams, 205 S.W.3d at 305.

Point I

In Rios’s first point on appeal, he contends that trial counsel was ineffective in failing to elicit testimony from Moore and Officer Jones4 regarding whether the unilateral vascular neck restraint (“the Restraint”) was taught at the Academy the year Rios attended. Rios argues that evidence that the Restraint was not taught was relevant to the question of guilt because the State presented testimony from Academy trainer Todd Burke (“Burke”) that Rios would have been taught the Restraint at the Academy, and testimony from medical examiner Dr. Valerie Rao (“Dr. Rao”) that the bruises on Valencia’s body were consistent with a rough application of the Restraint. We disagree.

To succeed on his claims of ineffective assistance of counsel for failing to elicit testimony from Moore and Officer Jones on the subject of the Restraint being taught at the Academy, Rios must show that: “(1) [trial] counsel knew or should have known of the existence of the witness, (2) the witness could be located through a reasonable investigation, (3) the witness would testify, and (4) the testimony of the witness would have produced a viable defense.” Hays v. State, 360 S.W.3d 304, 309-10 (Mo.App. W.D.2012).

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Cite This Page — Counsel Stack

Bluebook (online)
368 S.W.3d 301, 2012 WL 2094438, 2012 Mo. App. LEXIS 803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rios-v-state-moctapp-2012.