IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT WILLIAM MILLER-KIRKLAND, ) ) Appellant, ) ) WD86306 v. ) ) OPINION FILED: ) September 17, 2024 ) STATE OF MISSOURI, ) ) Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Marco A. Roldan, Judge
Before Division One: Edward R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer and Cynthia L. Martin, Judges
Mr. William Miller-Kirkland (“Miller-Kirkland”) appeals from the judgment
entered by the Circuit Court of Jackson County, Missouri (“motion court”), following an
evidentiary hearing denying Miller-Kirkland’s Rule 29.15 motion. We affirm. Factual and Procedural History1
In the early morning hours of December 28, 2017, Miller-Kirkland went to his
mother’s (“Mother”) house in Independence, Missouri, and shot Mother’s boyfriend
(“Victim”). Mother called 911 and reported the shooting. When officers arrived, they
observed Victim unresponsive on the floor with multiple gunshot wounds. Mother told
police that Miller-Kirkland came to her home “intoxicated and angry” and explained that
he was upset because his home had been broken into and he believed that Victim and
Victim’s cousin were responsible. Mother stated that Miller-Kirkland was “angry and
yelling at [Victim]” and threatened to kill Victim multiple times. Mother told police that,
prior to the shooting, she had to restrain Miller-Kirkland “against the wall with her hand
on his mouth and neck,” pushing him away from Victim. Mother stated that she did not
know where Miller-Kirkland went after he left her residence, but informed police he was
armed.
Police located, arrested, and took Miller-Kirkland into custody approximately four
hours after the shooting. Subsequently, detectives recovered a firearm that was linked to
fourteen shell casings found in Mother’s home and had been purchased by Miller-
Kirkland in March 2017.
When the police and first responders arrived at Mother’s home, they removed
Victim, who was then still alive. Mother gave the police consent to search her home and
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 verdict and judgment. McFadden v. State, 553 S.W.3d 289, 296 n.2 (Mo. banc 2018); Balbirnie v. State, 649 S.W.3d 345, 349 n.1 (Mo. App. W.D. 2022).
2 accompanied the police to the station to give an interview. There, Mother again informed
police that Miller-Kirkland had shot Victim. During the interview, Victim died. Miller-
Kirkland was charged with armed criminal action and first-degree murder.
On September 9, 2019, a jury trial commenced. Mother’s recorded interview with
police was played to the jury. In it, the detective (“Police Detective”) asked Mother
whether Miller-Kirkland used drugs. Miller-Kirkland’s trial counsel (“trial counsel”)
immediately objected to the question and requested a curative instruction to be given to
the jury instructing them to disregard Police Detective’s question to Mother about Miller-
Kirkland’s drug use. The trial court sustained the objection and issued the requested
curative instruction. No other reference to drug use was made throughout the entirety of
the trial. Instead, the jury only heard evidence that Miller-Kirkland consumed alcohol on
the night of the shooting.
The State relied on the physical evidence of the fourteen shell casings recovered
by the police and six bullet holes located in the carpet under Victim to argue that shots
were fired while Victim was on the floor. The prosecutor argued that the holes in the
floor proved Miller-Kirkland acted with deliberate intent because at least some shots
were fired while he stood over Victim.
Notably, no trajectory analysis was conducted during the State’s investigation of
the case that would have aided in showing Victim’s position when he was shot. Trial
counsel exploited what he perceived as an investigational oversight in his cross-
examination of Police Detective at trial and in his closing argument to the jury.
3 Miller-Kirkland testified at the trial in his own defense. He testified that when he
entered Mother’s home, he saw Victim pointing a gun at Mother’s head and pushed
Mother aside to shoot Victim. Miller-Kirkland further testified that he was scared for his
life because Victim still had a gun in his hand and that he knew Victim was previously
imprisoned for shooting and killing a man.
In his closing argument, trial counsel argued that Miller-Kirkland acted in self-
defense when he shot Victim and that he had a reasonable fear of Victim because Victim
was armed and had a prior criminal conviction for shooting and killing another person.
Trial counsel also emphasized what he characterized as a poor investigation by law
enforcement. He argued there was no forensic evidence of Victim’s position when he
fell, and additionally noted that crime-scene investigators failed to interview the
paramedics about whether shell casings had been moved or to determine whether the
bullets ricocheted. Trial counsel argued the evidence simply did not support a finding
that Miller-Kirkland was standing over Victim when shots were fired. Trial counsel
concluded his argument by noting that the police had not done their job and the State had
not met its burden of proving beyond a reasonable doubt that Miller-Kirkland acted with
unlawful premeditated deliberation in shooting Victim.
During the instruction conference, the trial court noted that the State had submitted
Instruction 13, modeled after MAI-CR 4th (“MAI”) 410.50, which instructed the jury that
“an intoxicated or drugged condition . . . will not relieve a person of responsibility for his
conduct.” Trial counsel stated that he had no objection to the instruction. The full
instruction as submitted to the jury stated:
4 The state must prove every element of the offense beyond a reasonable doubt. However, in determining the defendant’s guilt or innocence, you are instructed that an intoxicated or a drugged condition whether from alcohol or drugs will not relieve a person of responsibility for his conduct.
(emphasis added).
With respect to Count I of the indictment, the jury received instructions on first-
degree murder, armed criminal action, and lesser included offenses2 as well as
instructions for finding Miller-Kirkland not guilty based on self-defense or defense of
others. The jury found Miller-Kirkland guilty of first-degree murder and armed criminal
action. The trial court sentenced Miller-Kirkland to life in prison without the possibility
of parole for murder and ten years for armed criminal action with the sentences to run
concurrently.
Miller-Kirkland directly appealed his convictions to this court arguing, among
other things, that the trial court plainly erred by instructing the jury on intoxication by
drugs because there was no evidence that he used drugs. We affirmed Miller-Kirkland’s
convictions in a per curium order (“PCO”). State v. Miller-Kirkland, 638 S.W.3d 122
(Mo. App. W.D. 2022) (Mem.). In the legal memorandum supplementing the PCO, we
agreed with Miller-Kirkland that because there was no evidence of drug use, the
disjunctive contained in Instruction 13, referring to “drug” or “drugged,” constituted
instructional error. However, we ultimately concluded the jury’s verdict was not affected
2 These jury instructions explained that it was the State’s burden to prove Miller- Kirkland’s guilt “beyond a reasonable doubt.”
5 by the instructional error and that Miller-Kirkland suffered no manifest injustice under
our plain error standard of review.
Miller-Kirkland timely filed a post-conviction Rule 29.15 motion with the
assistance of appointed counsel.3 The Rule 29.15 motion alleged, inter alia, that Miller-
Kirkland’s trial counsel was ineffective for (1) failing to investigate and call an expert
witness to testify to whether Victim was standing or lying on the ground when he was
shot for the purpose of aiding the jury on the question of premeditation; and (2) failing to
object to Instruction 13.
An evidentiary hearing was conducted by the motion court. Appointed counsel
called a forensic consultant (“Consultant”) who testified that he previously served as an
expert witness in 200-300 cases involving bullet trajectories. Consultant testified that he
was tasked with reviewing the crime-scene investigator’s report, which noted the police
located six bullet holes in the floorboard of the house. Consultant stated that in reviewing
police photographs of the bullet holes, the holes appeared to be “slanted” and “very
small” with fragmented bullets. Consultant verified there was “no trajectory analysis”
performed by the police. Consultant offered his opinion that he did “not think [Victim]
was shot on the floor for the vast majority of the shots” based on the materials provided
for his review. However, he admitted on cross-examination that it was not possible to
determine Victim’s exact position at the time of the shooting.
3 All rule references are to MISSOURI SUPREME COURT RULES (2022), unless otherwise indicated.
6 Trial counsel and Miller-Kirkland also testified at the evidentiary hearing. Trial
counsel testified that his decision not to employ an expert witness was strategic because
the police had not conducted a trajectory analysis and part of his defense strategy was to
exploit and highlight the lack of thorough investigation by the police. Trial counsel
stated the police’s poor investigation allowed him to argue it was not possible to tell
whether Victim was lying on the ground at the time of the shooting.
Trial counsel further testified that he did not object to the voluntary intoxication
instruction because the instruction contained the disjunctive “alcohol or drugs.” Trial
counsel believed the instruction was telling the jury to consider one or the other (i.e.
alcohol, drugs) but not “both.” Because there was evidence that Miller-Kirkland used
alcohol and no evidence that Miller-Kirkland used drugs, trial counsel believed the jury
would only consider the “alcohol” portion of the disjunctive in rendering its verdict.
For his part, Miller-Kirkland testified that trial counsel initially told him that an
expert witness was needed to discuss the trajectory of the bullet holes but later told him
no expert witness was necessary because the State was not going to produce any forensic
evidence at trial to determine the angle of bullet trajectories.
The motion court denied Miller-Kirkland’s claim that trial counsel was ineffective
for failing to call an expert witness, stating:
There is no evidence this testimony would have provided [Miller- Kirkland] with a viable defense. [Trial counsel] testified that it was his trial strategy to not hire an expert witness as the State did not present any trajectory evidence, and that it was his strategy to attack the lack of evidence. He also testified that, if he had thought it would have been helpful to the case, he would have hired an expert, but he did not believe it was necessary. Additionally, [Consultant] testified at the hearing that,
7 based on the evidence he reviewed, it could not be determined where the victim was at the time he was shot. This testimony would not have provided [Miller-Kirkland] with a viable defense. Credible evidence established that the decision not to hire and call a forensic expert was clearly trial strategy on the part of trial counsel.
The motion court also denied Miller-Kirkland’s claim that trial counsel was
ineffective for failing to object to the involuntary intoxication instruction:
The issue of Instruction No. 13 improperly referencing drugs was addressed on direct appeal in WD83372. While the Missouri Court of Appeals Western District noted in their Opinion that the use of the term “drugs” in Instruction 13 was improper, as no evidence of drug use by [Miller- Kirkland] was introduced at trial, they ultimately found that [Miller- Kirkland] failed to show how this instructional error affected the jury’s verdict and caused a manifest injustice or miscarriage.
At the hearing trial counsel testified that he did not object to Instruction No. 13 where the term “drugged” was included because he did not believe the jury would consider it as there was no evidence of drug use. Since there was no evidence of drug use, including the term “drugged” in Instruction No. 13 was improper. However, even if [trial] counsel should have objected to the improper form of Instruction No. 13, [Miller-Kirkland] has failed to show how this affected the jury’s verdict and the outcome of his case. Whether the jury thought [Miller-Kirkland] was under the influence of drugs or alcohol is irrelevant, as the instruction tells them that voluntary intoxication does not relieve an accused of responsibility. The jury is presumed to follow the instructions. State v. Wheeler, 219 S.W.3d 811, 817 (Mo. App. S.D. 2007). [Miller-Kirkland] has failed to show prejudice, and subpart one of Claim 8(j) is denied.
Miller-Kirkland timely appealed, asserting two points on appeal. In his
first point, he contends the motion court clearly erred by denying his post-
conviction claims because expert testimony would have shown that he did not
possess the requisite mens rea to commit the charged offense of murder in the first
degree. In his second point, Miller-Kirkland contends the motion court clearly
erred by denying his post-conviction relief claims because Miller-Kirkland was
8 prejudiced by trial counsel’s failure to object to the involuntary intoxication
instruction, which included disjunctives referring to “a drugged condition” and
“drugs.”
Standard of Review
“To be entitled to post-conviction relief for ineffective assistance of counsel, a
movant must show by a preponderance of the evidence that his or her trial counsel failed
to meet the Strickland test.” Watson v. State, 520 S.W.3d 423, 435 (Mo. banc 2017)
(citing Strickland v. Washington, 466 U.S. 668 (1984)). Under Strickland, the movant
must demonstrate: “(1) his trial counsel failed to exercise the level of skill and diligence
that a reasonably competent trial counsel would in a similar situation, and (2) he was
prejudiced by that failure.” Id. (citing Strickland, 466 U.S. at 687). If movant fails to
prove either prong, relief cannot be granted. Hecker v. State, 677 S.W.3d 507, 512 (Mo.
banc 2023). “Strickland . . . calls for an inquiry into the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind.” Harrington v. Richter,
562 U.S. 86, 110 (2011). “In reviewing the performance prong, [Miller-Kirkland] must
overcome the presumption[] that any challenged action was sound trial strategy . . .”
State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997).
“Appellate review of a motion court’s dismissal of a post-conviction relief motion
is limited to determining whether the findings and conclusions of law are clearly
erroneous.” Propst v. State, 535 S.W.3d 733, 735 (Mo. banc 2017) (citing Price v. State,
422 S.W.3d 292, 294 (Mo. banc 2014)); see also Rule 29.15(k). “A motion court’s
findings and conclusions are clearly erroneous if this Court ‘is left with the definite and
9 firm impression that a mistake has been made’ after a review of the entire record.” Id.
(quoting Price, 422 S.W.3d at 294). “The motion court’s findings of fact and conclusions
of law are presumed to be correct.” Beck v. State, 637 S.W.3d 545, 551 (Mo. App. W.D.
2021) (quoting Hays v. State, 360 S.W.3d 304, 309 (Mo. App. W.D. 2012)). The motion
court’s judgment “will be affirmed if cognizable under any theory, regardless of whether
the reasons advanced by the [motion] court are wrong or not sufficient.” Driskill v. State,
626 S.W.3d 212, 224 n.6 (Mo. banc 2021) (internal quotations omitted).
I.
Miller-Kirkland argues in Point I that trial counsel was ineffective for failing to
investigate and hire a forensic expert. Miller-Kirkland contends that expert testimony
would have shown Victim was standing at the time of the shooting, thereby casting doubt
on the “deliberation” element of the State’s case. We disagree.
To prevail on a claim of ineffective assistance of counsel for failing to call an
expert witness, Miller-Kirkland must show that “the witness's testimony would have
produced a viable defense.” Edwards v. State, 200 S.W.3d 500, 518 (Mo. banc 2006)
(internal quotation marks omitted); White v. State, 576 S.W.3d 285, 297 (Mo. App. W.D.
2019). Similarly, to prevail in a claim that counsel was ineffective for failing to
investigate, Miller-Kirkland must prove that “the information [his counsel failed to
discover] would have aided or improved his position at trial.” State v. Stewart, 850
S.W.2d 916, 921 (Mo. App. W.D. 1993).
Miller-Kirkland cannot meet this burden. Consultant could not provide any
definite conclusions about Victim’s position at the time of the shooting. Consultant’s
10 opinion that he did “not think [Victim] was shot on the floor for the vast majority of
shots” was, at best, equivocal, and, more importantly, did not contradict the State’s theory
of the physical evidence: that Victim fell and Miller-Kirkland “continued to walk over”
and fire some shots into Victim’s still living body. Thus, even if we credit Consultant’s
equivocal opinion, it does not provide Miller-Kirkland with a viable defense, nor would it
have improved his position at trial.
Further, Miller-Kirkland cannot overcome the presumption that trial counsel
employed sound trial strategy. “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.” Shockley v. State, 579 S.W.3d 881, 908 (Mo. banc 2019) (quoting Vaca
v. State, 314 S.W.3d 331, 337 (Mo. banc 2010)). Trial counsel testified that he knew the
State did not have an expert witness who could testify to the trajectory of the bullets and
that he elected not to engage an expert because he wanted to highlight and exploit the
lack of ballistic evidence collected by the police. Miller-Kirkland admitted trial counsel
shared this strategy with him prior to trial. This strategy was implemented throughout
trial counsel’s argument on behalf of Miller-Kirkland’s case at trial, including in his
cross-examination of Police Detective and in his closing argument.
By forcing the State to explain its failure to conduct any trajectory analysis or
gather additional evidence about the bullets (i.e., whether bullet’s ricocheted, testimony
from paramedics), trial counsel presented a compelling argument from which the jury
could conclude there was “doubt” on an element of “deliberation.” Had trial counsel
elected to hire Consultant, who could not rule out the possibility that Victim was shot on
11 the floor, such testimony may have refocused “doubt” on Miller-Kirkland’s self-defense
argument and away from the State’s burden of proof.4
On this record, the motion court’s conclusions that trial counsel was not
ineffective because Consultant’s testimony would not provide Miller-Kirkland with a
viable defense and was a decision of reasonable trial strategy were not clearly erroneous.
Point I is denied.
II.
Miller-Kirkland argues in Point II that his trial counsel was ineffective for failing
to object to Instruction 13. As noted above, claims of ineffective assistance of counsel
are evaluated under the two-pronged test articulated in Strickland. To succeed, Miller-
Kirkland must show (1) that his trial counsel failed to exercise the level of skill and
diligence that a reasonably competent trial counsel would in a similar situation, and (2)
4 Miller-Kirkland argues he is entitled to a reversal based on Beckett v. State, 675 S.W.3d 533 (Mo. App. W.D. 2023), but Beckett is distinguishable. In Beckett, the defendant (“Beckett”) claimed he went to clear a handgun, but that in the process of doing so, the handgun discharged and released two bullets, killing his wife. 675 S.W.3d at 536-37. At trial, the State called a firearms expert to testify that the killing was not accidental. Id. at 537. Beckett’s trial counsel knew the State was going to present expert testimony but failed to secure his own expert. Id. at 541. Beckett filed for post- conviction relief, claiming his counsel was ineffective for failing to hire an expert witness, and presented an expert at the post-conviction hearing who testified that Beckett’s account of accidental firing was plausible due to particular safety and trigger mechanisms on the handgun in question. Id. at 538. The motion court denied Beckett’s claim and we reversed on appeal, noting that Beckett’s trial counsel could have conducted a more thorough cross-examination of the State’s expert if he possessed necessary information about the handgun’s operation. Id. at 547. Here, Miller- Kirkland’s trial counsel knew the State did not have an expert witness to be cross- examined and elected not to engage an expert to testify on the topic precisely so he could highlight the fact that Victim’s position at the time of the shooting was not ascertainable.
12 that he was prejudiced by that failure. Strickland, 466 U.S. at 687. We address these
prongs in order.
A. Performance Prong
“[F]ailure to object to an improper instruction is error and satisfies the
performance prong of the test for ineffective assistance of counsel[.]” Williams v. State,
490 S.W.3d 398, 406 (Mo.App. W.D. 2016) (internal quotation marks omitted) (first
alteration in original). Here, Instruction 13 was improper, and trial counsel’s failure to
object was unreasonable and constitutionally deficient performance.
When there is a disjunctive in an instruction, both parts of the disjunctive must be
supported by substantial evidence. State v. Avery, 275 S.W.3d 231, 233 (Mo. banc 2009)
(“A jury instruction must be supported by substantial evidence and the reasonable
inferences to be drawn therefrom.”); Wright v. Barr, 62 S.W.3d 509, 526 (Mo. App.
W.D. 2001) (“If an instruction provides for disjunctive alternatives, each alternative
submitted must be supported by substantial evidence.”).
Section 562.076(3) provides that “[e]vidence that a person was in a voluntarily
intoxicated or drugged condition may be admissible when otherwise relevant on issues of
conduct but in no event shall it be admissible for the purpose of negating a mental state
which is an element of the offense.” Consistent with the disjunctive in section
562.076(3), MAI 410.50 requires the election of “intoxicated” and “alcohol” or
“drugged” and “drugs,” or both if both conditions are applicable, as indicated by the use
of parentheses:
13 The state must prove every element of the offense beyond a reasonable doubt. However, in determining the defendant’s guilt or innocence, you are instructed that (an intoxicated) (or) (a drugged) condition (whether) from (alcohol) (or) (drugs) (or) ([Identify other substance.]) will not relieve a person of responsibility for his conduct (unless such condition was involuntarily produced.).
MAI 410.50. The trial court approved submission of Instruction 13, which instructed the
jury on both disjunctives, “you are instructed that an intoxicated or drugged condition . . .
will not relieve a person of responsibility for his conduct.” Therefore, both disjunctives
were required to be supported by substantial evidence. Wright, 62 S.W.3d at 526.
Submission of the “alcohol” disjunctive was proper because there was evidence
before the jury that Miller-Kirkland consumed alcohol on the night of the incident.
However, submission of the “drug” disjunctive was improper because there was no
evidence of drug use by Miller-Kirkland. The prosecutor did not ask any questions about
drug use as it related to Miller-Kirkland or make any reference to drug use by Miller-
Kirkland in opening or closing arguments. The only reference to Miller-Kirkland and
drugs was the recorded interview question asked by Police Detective to Mother. The jury
did not hear Mother’s answer because trial counsel immediately objected and the trial
court issued a curative instruction telling the jury “to disregard the most recent questions
by the detective regarding [Miller-Kirkland].” Thus, not only did the jury not hear
evidence of drug use, it was explicitly instructed to disregard the sole reference in the
trial to drug use.
In its conclusions of law, the motion court acknowledged our determination on
Miller-Kirkland’s direct appeal that Instruction 13 was improper. Nevertheless, it ruled
14 that trial counsel’s performance was not deficient and credited trial counsel’s testimony at
the evidentiary hearing that he did not object to Instruction 13 because he did not believe
the jury would consider the “drug” disjunctive.
Contrary to what the motion court’s ruling suggests, trial counsel’s belief that the
jury would not consider an unsupported disjunctive does not excuse his failure to object
to an erroneous instruction. Williams, 490 S.W.3d at 406. Trial counsel’s failure to
object to the erroneous jury instruction satisfies the performance prong of the Strickland
test.
However, to prevail on an ineffective assistance of counsel claim, Miller-Kirkland
must establish both the performance prong and the prejudice prong. He cannot.
B. Prejudice Prong
As an initial matter, we note that the motion court applied the wrong standard of
review in assessing Strickland prejudice. The motion court’s ruling conflated the plain
error standard for prejudice (manifest injustice) applied by this court on direct appeal
with the Strickland standard for prejudice. Simply put, these standards are “not
equivalents.” Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002).
“[U]nder Missouri law, plain error can serve as the basis for granting a new trial
on direct appeal only if the error was outcome determinative.” Id. The plain error
standard on direct appeal presupposes “that all the essential elements of a presumptively
accurate and fair proceeding were present in the proceeding whose result is challenged.”
Id. at 428.
15 By contrast, a Rule 29.15 motion asserts “the absence of one of the crucial
assurances that the result of the proceeding is reliable, so finality concerns are somewhat
weaker and the appropriate standard of prejudice should be somewhat lower.” Id.
(internal quotation marks omitted) (quoting Strickland, 466 U.S. at 694). The prejudice
prong of Strickland is satisfied where “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 429 (internal quotation marks omitted) (quoting Strickland, 466 U.S. at
694).
Here, the motion court improperly applied the plain error standard by referencing
this court’s “manifest injustice” (or lack thereof) finding on direct appeal and relying on
“outcome determinative” language to support its conclusion that Miller-Kirkland did not
suffer Strickland prejudice. The motion court’s prejudice-prong analysis, thus, was
improper.
Nonetheless, we will affirm the motion court’s judgment “if cognizable under any
theory, regardless of whether the reasons advanced by the [motion] court are wrong or
not sufficient.” Driskill v. State, 626 S.W.3d 212, 224 n.6 (Mo. banc 2021) (internal
quotations omitted); see also Kelley v. State, 618 S.W.3d 722, 735 (Mo. App. W.D. 2021)
(“[W]e may affirm the [judgment] on any legal ground supported by the record if the
motion court arrived at the correct result.”) (internal quotation marks and citation
omitted). The motion court ruled that Miller-Kirkland did not meet his burden of proving
the Strickland prejudice prong, and we will uphold that conclusion unless Miller-
16 Kirkland can demonstrate he was prejudiced under Strickland’s slightly less exacting
standard.
Notably, the “theoretical difference” between the standards in question will only
produce a different outcome in a “small number of cases.” Deck, 68 S.W.3d at 428. In
most cases, “an error that is not outcome-determinative on direct appeal will also fail to
meet the Strickland test.” Id. Miller-Kirkland relies on Deck to argue that his case sits
among the “small number” of outliers where a different result is merited under
Strickland. We disagree.
In Deck, the defendant’s trial counsel submitted an instruction on mitigation
during the penalty phase of a capital case that improperly omitted the last two paragraphs
of the patterned jury instructions. Id. at 423. The defendant was convicted and sentenced
to death. Id. at 424. He appealed upon discovery of trial counsel’s oversight. Id. The
claim was denied by the Missouri Supreme Court on direct appeal under plain error
review, and the defendant raised an ineffective assistance of counsel claim. Id. On
review of the denial of the ineffective assistance claim, the Missouri Supreme Court
found Strickland prejudice. The court reasoned that mitigating circumstances were
entered into evidence and the missing paragraphs of the instruction would have directed
the jury on the need to “balance this mitigating evidence with the aggravating
circumstances focused on by the State” when considering the death penalty. Id. at 430.
The court further explained that trial counsel had failed to provide the jurors with an
explanation of “mitigation” during voir dire, so they were “more dependent” on the
missing instructions. Id.
17 Here, there is no reasonable probability that “but for” counsel’s failure to object,
the result of the proceedings would have been different. As we have discussed at length
herein, there was no evidence of drug use by Miller-Kirkland in the trial, and the jurors
were expressly given a curative instruction by the trial court to effectively disregard any
reference to drug use by Miller-Kirkland. We presume the jury followed the curative
instruction. State v. Minor, 648 S.W.3d 721, 731 (Mo. banc 2022).
Thus, unlike in Deck, where the jury was provided no guidance on how to handle
the improper instruction, the jury in this case was effectively told by the trial court to
only consider “alcohol” in its deliberations, not “drugs.” And, as trial counsel explained
in his testimony at the PCR hearing, because there was a complete lack of any evidence
of drugs at trial (upon trial counsel’s sustained objection to the question about drug use
that resulted in the curative instruction), trial counsel explained that he chose not to
object—as he simply did not view Instruction 13 as an impediment to Miller-Kirkland’s
defense.
Under these circumstances, Miller-Kirkland has failed to show Strickland
prejudice sufficient to “undermine confidence” in the jury’s verdict.
Point II is denied.
18 Conclusion
The motion court’s judgment is affirmed.
___________________________________ Mark D. Pfeiffer, Judge
Edward R. Ardini, Jr., Presiding Judge, and Cynthia L. Martin, Judge, concur.