IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT SHEILA A. WALLIS, ) ) Appellant, ) ) v. ) WD85887 ) STATE OF MISSOURI, ) Opinion filed: May 21, 2024 ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE JALILAH OTTO, JUDGE
Division Three: Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick, Judge and W. Douglas Thomson, Judge
Sheila Wallis appeals from the motion court’s judgment denying her Rule
29.15 motion after an evidentiary hearing. On appeal, Wallis argues that the
motion court erred because her trial counsel was ineffective for failing to
investigate, obtain, and present her employment records either through a witness
or a business records affidavit because those employment records would have
provided her with a partial alibi and undermined the credibility of some of the
State’s witnesses. Finding no error, we affirm. FACTUAL AND PROCEDURAL HISTORY1
Wallis was convicted after a bench trial of two counts of aggravated stalking,
two counts of stalking, and three misdemeanor counts of identity theft. Wallis was
sentenced to six years’ imprisonment for each aggravated stalking offense and four
years’ imprisonment for each stalking offense, with each sentence to run
consecutively. She received six months’ imprisonment for each misdemeanor
offense with the sentences to run concurrently with all other sentences.
Underlying Facts2
From May 2011 until January 2012, Wallis dated M.W. Wallis lived in
Lenexa, Kansas and would go to M.W.’s home in Lee’s Summit. The couple never
exchanged “I love you,” never met one another’s families, and never attended one
another’s social work events. On January 14, 2012, Wallis went to M.W.’s home
and was angry because Wallis had been sick and M.W. was not taking care of her.
Wallis began hitting M.W. with a pillow and grew increasingly agitated when M.W.
told her to stop. Wallis’s tone of voice and the look in her eye caused M.W. to tell
Wallis that their relationship was over and she needed to leave. Wallis refused to
leave and M.W. called the police to have her removed from his home.
1 “On appeal from the motion court’s denial of a Rule 29.15 motion, we view the
facts in the light most favorable to the underlying criminal conviction as those facts bear upon the motion court’s judgment.” Morrison v. State, 619 S.W.3d 605, 607 n.1 (Mo. App. W.D. 2021) (citing McFadden v. State, 553 S.W.3d 289, 296 n.2 (Mo. banc 2018)). 2 We affirmed Wallis’s conviction on direct appeal in a per curiam order,
WD80817. State v. Wallis, 576 S.W.3d 186 (Mo. App. W.D. 2019). Many of the facts herein are taken from the memorandum in support of the per curiam order without further attribution. 2 For the next three years, Wallis engaged in a variety of disturbing and
harassing behaviors towards M.W. and others in his life. These included leaving
notes on M.W.’s car, leaving voice messages on M.W.’s telephone, showing up at
M.W.’s home, sending mail to M.W., following M.W., and sending unsolicited
items to M.W.’s home. Wallis persisted even after police reports were filed and
even after M.W. changed addresses and telephone numbers.
After installing a security camera at his home in October of 2012, M.W.
observed Wallis going through his trash at approximately 2:00 a.m. for three
weekends in a row. On October 26, 2012, M.W. confronted Wallis at her car
window, Wallis sped away, breaking M.W.’s arm. Even after this incident, M.W.’s
security camera continued to pick up images of Wallis at M.W.’s home, and M.W.
received text messages from Wallis about the cameras. One stated, “Your crappy
cameras didn’t stop me from coming over.”
From May 2012 to June 2013, Wallis also targeted M.W.’s new girlfriend
(Girlfriend I) by, among other things, leaving notes on Girlfriend I’s car, sending
unsolicited packages to Girlfriend I (such as a package of thong underwear), calling
Girlfriend I, leaving screws behind Girlfriend I’s tires, sending letters to Girlfriend
I’s son’s middle school, texting Girlfriend I, following Girlfriend I, sending letters
to Girlfriend I’s place of employment, showing up at Girlfriend I’s place of
employment, and enrolling Girlfriend I on sexually explicit websites causing
Girlfriend I to receive unsolicited calls from men and boys, with men twice showing
up at Girlfriend I’s residence.
3 From July 2014 to January 2015, Wallis similarly targeted M.W.’s
subsequent girlfriend (Girlfriend II) by, among other things, leaving notes on
Girlfriend II’s front door or car that stated “Be careful” and “You should pay
attention when people warn you,” sending letters to Girlfriend II, sending cards
(including a sympathy card) to Girlfriend II, showing up at Girlfriend II’s
residence, looking for Girlfriend II at Blue Springs High School, and enrolling
Girlfriend II on sexually explicit websites.
From July 2012 to January 2014, Wallis targeted M.W.’s daughter
(Daughter) by twice sending letters to Daughter at Daughter’s mother’s home,
following Daughter home from a soccer game, sending Daughter a bracelet, and
sending Daughter emails. Wallis also attended Daughter’s sporting events on
multiple occasions.
Detective S.T. (Detective) with the Kansas City Police Department (KCPD)
investigated Wallis beginning August 2014. When Detective served Wallis with an
ex parte order obtained by Girlfriend II, Wallis was very agitated. Shortly
thereafter, Detective received a printout at KCPD that was a google map with
M.W.’s address circled and “asshole” written by it, “daycare” circled at another
spot, and “home” circled, forming a triangle. Attached to the printout was a sticky
note that said, “Use some common sense.” After receiving the note, Detective saw
Wallis near Detective’s home, and again when Detective was leaving a restaurant
with her family.
4 Detective participated in executing a search warrant at Wallis’s home where
multiple documents relating to Wallis’s victims (M.W., Girlfriend I, and Girlfriend
II) were recovered. In Wallis’s kitchen, police recovered a blue accordion file with
documents relating to M.W., including credit checks, Daughter’s sports schedule
and school events, a picture of Daughter running cross country, M.W.’s credit card
information, and mail from M.W.’s home. The file also contained information
about Girlfriend I, including her employer and home address, her insurance card,
tax records on her address and vehicles, and a packet from a detective agency dated
July 9, 2012, with extensive information on Girlfriend I for which Wallis had paid.
Similarly, the file contained information about Girlfriend II that included a sticky
note with her name and social security number, credit report, and similar extensive
documentation from the same detective agency.
Detective found a list of different email addresses relating to the victims; a
list of “ways to get revenge or get back at somebody,” which included things the
victims had reported to police that Wallis had done; a second list of emails relating
to the victims and their IP addresses; a form for an anonymous email address; a
prepaid card with M.W.’s phone number that enabled Wallis to prank call him; a
third document listing the victims’ names, work addresses, emails, work and cell
phone numbers; a list of email addresses that the victims received emails; a journal
of where the victims were on certain dates and times; a list of how to get back at
somebody or a “revenge list of what to do;” information pertaining to M.W.’s
mother; and a garage sale posting with M.W.’s address. Investigators also
5 discovered spells, including Wiccan spells, love spells, and spells on how to get a
lover back.
Detective also found a red folder on Wallis’s coffee table with personal
information regarding Detective inside. It included a printout with her name,
home address, home phone number, and a google map of where she resided;
Detective’s personal tax records on what vehicles she owned; and a note stating, “I
bet you don’t like people threatening your family either, like your twin daughters.”
Detective was the only person involved with the investigation who had twin
daughters.
Forensic examination of Wallis’s computer revealed additional evidence of
Wallis’s targeting of the victims. For example, Wallis’s computer included a diary
from May 31, 2011 to July 16, 2014 that contained a detailed record of Wallis’s
activities. Many of the diary entries matched the victims’ testimony about Wallis’s
acts. For example, on February 4, 2012, there was an entry stating, “Saturday 4:30
p.m. soccer game, left note on car.” On July 5, 2012, Wallis wrote that she went
through M.W.’s trash and got “lots of fireworks” in that she found tampons and a
size medium package of women’s underwear. On October 26, 2012, and entry
stated, “broke arm,” which coincided with M.W.’s testimony that Wallis broke
M.W.’s arm when he confronted her outside of his home.
Wallis had letters she had sent or fliers she had posted saved to her
computer. For example, Wallis had a Word document of a letter sent to M.W.’s
employer stating M.W. was falsifying documents. (This same letter led to M.W.
6 being investigated by his employer). Wallis’s diary also included documentation
of phone calls she made to the victims, whether the victims answered, and the
various phone numbers she used to make the calls.
Wallis had also downloaded a program onto her computer that allowed her
to see when the victims were re-opening emails that she had sent them. Wallis’s
diary included entries about when she saw the victims, what the victims were
wearing, what e-mail she had sent them, and when the e-mails were opened and
re-opened by the victims.
Wallis also had a document titled “To Do 9-13-14.doc” saved to her
computer, which was a general to-do list that corroborated similar entries in her
diary. Another to-do list saved to Wallis’s computer included a list of ways to
harass M.W. specifically. These lists included writing a letter to herself, writing a
letter to the Detective, cancelling a venue reservation for Girlfriend II’s daughter’s
wedding, sending Girlfriend I “stalker stuff,” and an entry to “send letter for child
predator.” A spreadsheet from Wallis’s computer also included different websites
for stalking and a to-do list with websites on revenge that included sending
magazines, bills, and porn to the victims.
Wallis had also made documents reminding her to deactivate certain e-mail
addresses and to send Detective a letter with the Detective’s address, phone
number, license plate, and KCPD IP address. One of Wallis’s to-do lists included
an item concerning one of the judges who had entered an order of protection
7 against her. Wallis’s computer also had lists that included the victims’ phone
numbers, addresses, emails, family members, and employers.
Wallis had also saved several documents to her computer that included
methods of stalking that Wallis was planning on, but had not yet, executed. Such
items included:
• A form for reporting tax fraud with M.W.’s name;
• A termination of parental rights with M.W.’s name;
• A letter purportedly from the Missouri Sex Offender Registry
addressed to M.W.;
• A letter notifying the recipient that Girlfriend II was fraudulently
applying for bankruptcy;
Procedural History
A grand jury indicted Wallis on March 27, 2015 on two counts of aggravated
stalking, two counts of stalking, and three counts of identity theft or attempted
identity theft. Wallis filed a motion for a bill of particulars, which the trial court
granted. The State filed a bill of particulars and thereafter filed an information in
lieu of indictment. In the bill of particulars, the State gave notice that it intended
to rely on at least two of the following acts as to Count I:
a. February 4, 2012 – note left on M.W.’s car b. March 9, 2012 – phone call and voicemail to M.W. c. March 18, 2012 – phone call and voicemail to M.W. d. March 23, 2012 – defendant at M.W.’s property e. March 28, 2012 – phone call and voicemail to M.W. f. April 7, 2012 – items left at M.W.’s property g. April 8, 2012 – phone call and voicemail to M.W.
8 h. April 11, 2012 – phone call and voicemail to M.W. i. April 15, 2012 – defendant at M.W.’s property j. April 18, 2012 – defendant at M.W.’s property k. May 20, 2012 – defendant in M.W.’s neighborhood l. May 22, 2012 – email to M.W. m. May 26, 2012 – note left on M.W.’s car n. May 30, 2012 – M.W. received sonogram picture from defendant o. May 31, 2012 – email sent to M.W. p. July 5, 2012 – defendant at M.W.’s property q. September 8, 2012 – defendant at M.W.’s daughter’s soccer game r. September 9, 2012 – defendant at M.W.’s daughter’s soccer game s. September 30, 2012 – defendant followed M.W. t. October 12, 2012 – defendant at M.W.’s property u. October 19, 2012 – defendant at M.W.’s property v. October 26, 2012 – defendant at M.W.’s property w. October 31, 2012 – M.W. received mail from defendant x. November 21, 2012 – defendant at M.W.’s property y. Between November 22, 2012 and December 14, 2012 – M.W. received at least 31 text messages from defendant z. December 21, 2012 – M.W. received email from defendant aa. December 23, 2012 – M.W. received email from defendant bb. January 20, 2013 – defendant followed M.W. cc. March 16, 2013 – defendant followed M.W. dd. March 21, 2013 – defendant followed M.W. ee. March 28, 2013 – defendant followed M.W. ff. June 2, 2013 – pizza delivered to M.W. at his residence gg. June 2, 2013 – defendant at M.W.’s property hh. August 1, 2014 – defendant at M.W.’s property ii. August 14, 2014 – M.W. received email from defendant jj. December 15, 2014 – M.W. received anonymous email sent from defendant kk. December 19, 2014 – M.W. received anonymous email sent from defendant ll. December 22, 2014 – M.W. received card from defendant mm. December 27, 2014 – M.W. received three anonymous email[s] sent from defendant nn. December 27, 2014 – M.W. received email card from defendant oo. December 28, 2014 – M.W. received anonymous email sent from defendant pp. January 1, 2015 – defendant at M.W.’s property qq. January 3, 2015 – M.W. received anonymous email sent from defendant rr. January 10, 2015 – defendant at M.W.’s property
9 ss. January 13, 2015 – defendant followed M.W. tt. January 15, 2015 – defendant at M.W.’s property uu. Between December [2014] and February 2015 – M.W. signed up to received numerous travel brochures
Similarly, in Count II, the State gave notice of the following acts that it
intended to rely on:
a. July 9, 2014 – note left on [Girlfriend II’s] front door b. July 15, 2014 – letter from defendant received by [Girlfriend II] c. July 29, 2014 – defendant at [Girlfriend II’s] residence d. July 29, 2014 – letter sent from defendant to [Girlfriend II] e. August 7, 2014 – letter at [Girlfriend II’s] house from defendant f. August 8, 2014 – letter sent from defendant to [Girlfriend II] g. August 12, 2014 – defendant at [Girlfriend II’s] residence h. September 12, 2014 – defendant looked for [Girlfriend II] at Blue Springs High School i. September 13, 2014 – defendant at [Girlfriend II’s] residence j. September 2014 – [Girlfriend II] enrolled on sexually explicit website k. December 2014 – [Girlfriend II] received birthday card from defendant l. January 10, 2015 – defendant at M.W.’s residence while [Girlfriend II] also at M.W.’s residence m. January 15, 2015 – defendant near M.W.’s residence while [Girlfriend II] also at M.W.’s residence n. January 19, 2015 – Girlfriend II received sympathy card from defendant
Wallis waived her right to a jury trial. The trial court conducted a four-day
bench trial, at which the State presented the testimony of each of the victims and
various other witnesses. After the bench trial, Wallis was found guilty of two
counts of aggravated stalking, two counts of stalking, and three misdemeanor
counts of identity theft.
Post-Conviction Proceedings
10 Wallis filed an amended motion for post-conviction relief that raised several
claims of ineffective assistance of her trial counsel. The motion court held an
evidentiary hearing on that motion on October 29, 2021. At that hearing, Wallis
waived all of her post-conviction claims other than claim 8(d). Claim 8(d) argues
that Trial Counsel was ineffective in failing to investigate and present Wallis’s
employment records at trial to demonstrate that Wallis worked on dates when she
also stalked the victims. Wallis argued that her employment records would have
either undermined the victims’ credibility or provided her with an alibi. Wallis’s
counsel at the post-conviction hearing stated that Claim 8(d) concerns Counts I
and II and not the remaining counts.
Trial Counsel testified at the evidentiary hearing. Trial Counsel stated that
his strategy at trial was “that there was an intervening cause that extinguished the
legal liability of [Wallis] as it relates to the stalking counts.” Namely, Trial
Counsel’s strategy at trial was to present evidence that M.W. “engaged in sort of
this back-and-forth with” Wallis. Trial Counsel testified that to prepare for trial,
he reviewed all of the State’s evidence, which included over 1,500 pages of
documents, surveillance video, photos, text messages, emails, letters, notes, and
Wallis’s diary, and conducted depositions or interviews of the victims, witnesses,
and the forensic examiner who reviewed Wallis’s computer.
Trial Counsel also testified that he attempted to obtain Wallis’s employment
records. Trial Counsel stated that he tried to obtain those records, “[b]ecause we
had a bill of particulars setting forth specific dates on which offenses were – or
11 conduct was alleged to have occurred. Which may have provided some sort of alibi
for [Wallis] as to those allegations.” Trial Counsel acknowledged that if Wallis’s
employment records had shown that she was at work on some of the days when
the victims claimed she was stalking them, he could have used those records to
undermine the victims’ credibility. Trial Counsel also acknowledged that the
State’s evidence included only dates and not times that Wallis committed certain
acts. Trial Counsel testified that other evidence – like surveillance video and
witness testimony – corroborated acts that the State alleged Wallis committed.
The motion court issued Findings of Fact and Conclusions of Law. The
motion court determined that:
[T]rial counsel did attempt to obtain the records from [Wallis’s] employer, however said records were not presented at trial. The Court further finds that trial counsel knew or should have known of a witness at Children’s Mercy Hospital; that the witness could be located through reasonable investigation; and that the witness would have testified about [Wallis’s] employment records if subpoenaed to testify at trial, or the records could have been admitted with an appropriate business records affidavit. The only questions that remains [sic] are whether the witness’ testimony, or the employment records[,] would have helped [Wallis]; assisted [Wallis] in producing a viable defense; and reasonably produced a different outcome.
The motion court reviewed Wallis’s employment records and determined
that she “would have been employed for 22 of the specific dates listed in the Bill of
Particulars.” The motion court found,
[A]fter accounting for days that [Wallis] was either fully or partially off work and excluding conduct that would not require [Wallis’s] physical presence, only eight (8) work days overlap with the 60 dates outlined in the Bill of Particulars. Three (3) days related to Count One: August 1, 2014, January 13, 2015, and January 15, 2015; and five (5) days related to Count Two: July
12 9, 2014, July 15, 2014, July 29, 2014, August 12, 2014, and September 12, 2014.
The motion court determined that Wallis’s employment records show she
clocked in from 7:53 a.m. to 4:35 p.m. on August 1, 2014. At trial, M.W. testified
seeing Wallis at his property on August 1, 2014 but did not testify as to the time of
day this encounter occurred. The motion court noted that the State did not present
any evidence relating to January 13 or January 15, 2015 at trial.
As to Count II, the motion court noted that Wallis’s employment records
indicate that she worked on five of the dates: July 9, 2014, July 15, 2014, July 29,
2014, August 12, 2014, and September 12, 2014. On July 9, 2014, Wallis’s
employment records list that she worked from 7:19 a.m. to 4:30 p.m. At trial,
Girlfriend II testified that on July 9, 2014, Wallis left a note on her door. Wallis’s
diary included an entry on July 9, 2014, that read “no cars there again, must still
be out of town.”
Wallis’s employment records indicate that she worked from 7:31 a.m. to
4:00 p.m. on July 15, 2014. At trial, Girlfriend II testified that on July 15, 2014,
Wallis left a letter on her door. The State also introduced an entry from Wallis’s
diary from that date, which stated, “6:52am saw her leave for work, I left letter,
think he’s out of town.”
Wallis’s employment records show she worked from 7:49 a.m. to 5:30 p.m.
on July 29, 2014. At trial, Girlfriend II testified that she saw Wallis take a photo of
13 her near Girlfriend II’s house, but did not testify about what time this encounter
occurred.
Similarly, Wallis worked from 7:59 a.m. until 4:30 p.m. on August 12, 2014.
Girlfriend II testified that she saw Wallis near her house on that date and took a
picture of Wallis in her vehicle. The State also introduced the diary entry Wallis
made on that date: “she followed me from her house to 152, she then turned around
and took 435 home, did not stop at his place on way home, he might have been out
of town.”
On September 12, 2014, Wallis’s employment records show that she worked
from 7:59 a.m. until 4:30 p.m. The State presented evidence at trial that on that
date, Wallis made the following diary entry:
no cars in front of the house from 5:45 to 7, his truck was in the driveway at 9:30pm; she was not home at 9:45pm or 8:15pm, couldn’t find either car in parking lot at football game at Blue Springs High School, think he picked [Daughter] up before game was over and she may have had dinner or done something with him before that.
The motion court also highlighted that Wallis’s employment records include
additional evidence of her guilt. Wallis’s employment records include termination
documentation that contain excerpts from a diary and a to-do list saved to her work
computer that were similar to the diary and to-do list recovered from Wallis’s home
computer and introduced at trial.
In sum, the motion court denied Wallis relief, finding that the State’s
evidence did not conflict with Wallis’s employment records. The motion court
highlighted that the State’s evidence from some of the days where Wallis was
14 working included Wallis’s own diary entries that documented her stalking
activities. Ultimately, the motion court concluded that Wallis’s employment
records would not have changed the outcome at trial. This appeal follows.
STANDARD OF REVIEW
Our review of the denial of a Rule 29.15 motion is “limited to a determination
of whether the findings and conclusions of the [motion] court are clearly
erroneous.” Rule 29.15(k). “Such findings and conclusions are considered clearly
erroneous only if a full review of the record leaves us with ‘a definite and firm
impression that a mistake has been made.’” Laub v. State, 481 S.W.3d 579, 582
(Mo. App. S.D. 2015) (quoting Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009)).
“The motion court’s findings are presumptively correct.” Walker v. State, 626
S.W.3d 331, 333 (Mo. App. E.D. 2021) (citing Davis v. State, 486 S.W.3d 898, 905
(Mo. banc 2016)). “‘Even if the stated reason for a motion court’s ruling is
incorrect, this Court will affirm the judgment if it is sustainable on other grounds.’”
Webber v. State, 628 S.W.3d 766, 770 (Mo. App. W.D. 2021) (quoting Dorsey v.
State, 448 S.W.3d 276, 282 (Mo. banc 2014)). “It is incumbent upon the movant
in a post-conviction motion to prove his or her claims for relief by a preponderance
of the evidence[.]” Laub, 481 S.W.3d at 582 (citing Rule 29.15(i)).
ANALYSIS
Wallis brings one point on appeal. She argues that the motion court erred
in denying her Rule 29.15 motion because her trial counsel was ineffective by
failing to investigate, obtain, and present her employment records at trial. Wallis
15 contends that her employment records would have cast doubt on the victim’s
credibility as to when she was stalking them and provide her an alibi.
Wallis must meet the following burden to support her claim that Trial
Counsel provided her with ineffective assistance:
In order to prevail on a post-conviction motion alleging ineffective assistance of counsel, a movant must overcome a strong presumption of competence and demonstrate, by a preponderance of the evidence, that (1) counsel did not exercise the customary skill and diligence that a reasonably competent attorney would have exercised under the same or similar circumstances, and (2) counsel’s failure to exercise such skill and diligence prejudiced the movant in some way. Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). To satisfy the performance prong, a movant “must overcome the presumptions that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment.” State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). In order to demonstrate the requisite prejudice, a movant must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Strickland defines “a reasonable probability” as “a probability sufficient to undermine confidence in the outcome.” Id. In reviewing such claims, we are not required to examine both prongs; if a movant fails to satisfy the performance prong, we need not consider the prejudice prong, and vice versa. Strickland, 466 U.S. at 697, 104 S.Ct. 2052; State v. Sanders, 738 S.W.2d 856, 857 (Mo. banc 1987).
Laub, 481 S.W.3d at 582-83.
We presume that “counsel acted professionally in making decisions and that
any challenged action was a part of counsel’s sound trial strategy.” Skillicorn v.
State, 22 S.W.3d 678, 681-82 (Mo. banc 2000). “‘The question in an ineffective
assistance claim is not whether counsel could have or even, perhaps, should have
made a different decision, but rather whether the decision made was reasonable
16 under all the circumstances.’” Johnson v. State, 406 S.W.3d 892, 901 (Mo. banc
2013) (quoting Henderson v. State, 111 S.W.3d 537, 540 (Mo. App. W.D. 2003)).
“Generally, the selection of witnesses and the introduction of evidence are
questions of trial strategy and virtually unchallengeable.” State v. Kenley, 952
S.W.2d 250, 266 (Mo. banc 1997).
“‘To prevail on a claim of ineffective assistance of counsel for failure to
investigate, a movant is required to allege what information [trial] counsel failed
to discover, that a reasonable investigation would have resulted in the discovery of
such information, and the information would have aided and improved the
defense.’” Prince v. State, 390 S.W.3d 225, 233 (Mo. App. W.D. 2013) (quoting
Bliss v. State, 367 S.W.3d 190, 195 (Mo. App. S.D. 2012)).
Similarly, to prevail on a claim of ineffective assistance for failure to call a
witness, Wallis must demonstrate that: “(1) counsel knew or should have known of
the existence of the witness; (2) the witness could be located through reasonable
investigation; (3) the witness would testify; and (4) the witness’s testimony would
have produced a viable defense.” Deck v. State, 381 S.W.3d 339, 346 (Mo. banc
2012).
Here, to prevail on her claim, Wallis must demonstrate by a preponderance
of the evidence that her employment records would have aided or improved her
defense. The motion court determined that Trial Counsel attempted to obtain and
investigate Wallis’s employment records, and, after reviewing all of the State’s
evidence, decided to proceed with a legal defense and not with the aid of such
17 records. The motion court also found that Trial Counsel had a strategic reason for
not using Wallis’s employment records at trial because they would not have aided
in her defense.
We find that Wallis cannot meet her burden and the motion court did not
err in finding Wallis received effective assistance of counsel. Overall, Trial Counsel
(or his predecessors) requested a bill of particulars, obtained and reviewed the
State’s evidence, and attempted to obtain her employment records. The motion
court rightly pointed out that Trial Counsel could have obtained Wallis’s
employment records or identified a custodian witness to testify about Wallis’s
employment records through a reasonable investigation.
However, even if Trial Counsel had obtained Wallis’ employment records or
called a custodian witness to testify to her them, those records would not have
aided her defense. The evidence in this case against Wallis is extensive.
Importantly, even on dates when Wallis’s employment records showed she
worked, Wallis’s own diary documents that she indeed engaged in various stalking
behaviors. The State’s evidence included documents, videos, photographs, text
messages, emails, letters, notes, and witness testimony about Wallis’s various
stalking activities. Much of the State’s evidence was corroborated by Wallis’s own
diary and other information found in Wallis’s home and personal computer.
In fact, as the motion court rightly points out, none of Wallis’s employment
records undermines any witness testimony or offers her an alibi. As we stated
above, the motion court carefully reviewed Wallis’s employment records and
18 compared those records with the testimony and other evidence at trial to
determine that those employment records would not have aided her defense. At
best, Wallis’s employment records show that she was working at certain times on
certain days and that, perhaps, she could not have been physically stalking the
victims during those times. These records simply evidence that Wallis worked
eight of the sixty dates in question, a mere thirteen percent, yet still leaves time
even on those days for Wallis to have committed the alleged actions. Such evidence
merely narrows, and does not eliminate, the windows of opportunity Wallis had to
stalk the victims on days when she worked, and notably does nothing to assist her
on the overwhelming number of other dates in question. Wallis’s employment
records do not undermine any testimony from any of the victims about when
Wallis followed or otherwise harassed them.
Instead, Wallis’s employment records demonstrate that – even at work –
Wallis was dedicated to stalking the victims. Wallis’s termination documentation
indicates that she was terminated after her employer found that “Wallis had saved
a series of Word documents of a personal nature, each with multiple pages totaling
approximately 30 pages, entitled “To Do Lists” on her personal drive on her work
computer.” For example, a to-do list saved to her work computer on September 11,
2014, included this entry:
8/14/14 – Thursday, 7:00 – 8:00pm both were at their own homes, he had Escape in driveway instead of garage; he opened several unopened email in gmail this day; opened email I sent from kimberlyjackson807@yahoo.com at 10:25 pm sent it at 4:13 pm; 10:26 pm he opened email from [S] again sent on 6/11/14, he opened zoo email at 10:28 pm sent by me on 6/9/12;
19 10:37pm he opened email from me part of Hallmark exard chain sent 6/3/12 opened 2nd time at 10:39. [sic].
Wallis’s termination documentation also includes statements she made to her
employer when confronted with the personal to-do lists saved to her work
computer.3 These documents bolster, rather than undermine, the State’s case
against her. These entries into Wallis’s employment records likewise undermine
her argument before this Court that her employment records provide a partial alibi
or undermine the testimony of the victims.
Accordingly, the motion court did not clearly err when it found that Trial
Counsel’s performance was not deficient. We agree that Trial Counsel’s decision
to not investigate Wallis’s employment records further or offer such records at trial
was an exercise of reasonable professional judgment in light of the evidence in this
case. Wallis has not satisfied her burden in proving that her employment records
would have aided in her defense. And, even if Wallis had met her burden of
demonstrating her Trial Counsel’s performance was deficient, she cannot prove
that she was prejudiced by her Trial Counsel’s performance. For these reasons,
Wallis cannot demonstrate a reasonable probability that, but for Trial Counsel’s
performance, the outcome of her trial would have been different given the
overwhelming evidence presented by the State. Point I is denied.
3 Her termination document states that when confronted with the to-do lists,
Wallis made the following statement: “No one is that stupid. If I stalked someone, I’m not going to leave a log about it.” 20 CONCLUSION
The motion court did not clearly err in denying Wallis’s post-conviction
motion. The motion court’s judgment is affirmed.
______________________________ W. DOUGLAS THOMSON, JUDGE
All concur.