Opinion
No. ED 82370
December 9, 2003 Modified December 16, 2003
Appeal from the Circuit Court of St. Charles County, Honorable Nancy L. Schneider.
Before Glenn A. Norton, P.J., Kathianne Knaup Crane, J. and Mary K. Hoff, J.
The parties are familiar with the evidence presented to the motion court, and we will not recite it here. We review the denial of a Rule 29.15 motion only to determine if the findings of fact and conclusions of law are clearly erroneous. State v. Williams, 861 S.W.2d 670, 675 (Mo. App. E.D. 1993); Rule 29.15(k). Findings of fact and conclusions of law are clearly erroneous if, after reviewing the entire record, this Court is left with the definite and firm impression that a mistake has been made. Williams, 861 S.W.2d at 675. There has been no clear error here.
A. Counsel's Failure to Challenge Jurisdiction on State's Appeal
In his first point, Brown argues that counsel was ineffective for failing to attack this Court's jurisdiction to hear the State's appeal of the order granting Brown a new trial. He contends the appeal was untimely under State v. Casebolt, 994 S.W.2d 114 (Mo. App. S.D. 1999) and was unauthorized under State v. Carter, 78 S.W.3d 786 (Mo. App. E.D. 2002).
To prevail on a claim that he was deprived of the effective assistance of counsel on appeal, Brown must show (1) that his attorney's actions were outside the wide range of professionally competent assistance, (2) that the errors were so severe that counsel did not fulfill the guarantees of the Sixth Amendment of the United States Constitution and (3) that the deficient performance resulted in prejudice. Franklin v. State, 24 S.W.3d 686, 690-91 (Mo. banc 2000) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). There must be strong grounds showing that counsel failed to assert a claim of error on appeal that would have required reversal had it been asserted and that was so obvious from the record that a competent and effective lawyer would have recognized and asserted it. Franklin, 24 S.W.3d at 691. Ineffective assistance of counsel is measured against the backdrop of the law at the time of counsel's actions and "cannot be based on counsel's failure to anticipate changes in the law." State v. Cunningham, 863 S.W.2d 914, 921 (Mo. App. E.D. 1993).
At the time of the State's appeal of the order granting a new trial, Casebolt and Carter had not been decided. In Casebolt, the Southern District held that, for purposes of calculating the time period in which the State must file an appeal, an order granting a new trial in a criminal case becomes final when entered. 994 S.W.2d at 117. In Carter, this Court held that the State may not appeal the granting of a motion for new trial in criminal cases. 78 S.W.3d at 789. To reach these conclusions, both courts discussed and relied on law existing at the time of the appeal in this case, but these were clearly issues of first impression. See Casebolt, 994 S.W.2d at 117. Moreover, none of that existing case law was controlling as applied to the appeal in this case. The cases relied on in Casebolt were civil — a reliance we questioned in Carter given the Supreme Court's recognition of the distinction between criminal and civil appeals. See Carter 78 S.W.3d at 789 (citing State v. Harris, 486 S.W.2d 227, 229 (Mo. 1972)). The cases relied on in Carter were factually distinct from this case, involving either a defendant's appeal of a new trial order, Harris, 486 S.W.2d 227, or the State's appeal of a dismissal without prejudice, State v. Burns, 994 S.W.2d 941 (Mo. banc 1999). Moreover, as we noted in Carter, in numerous cases courts appeared to have simply assumed that the State had the right to appeal a new trial order without addressing the issue. 78 S.W.3d at 790 n. 3. We simply cannot say that counsel was ineffective for failing to raise a jurisdictional issue on appeal that even our own appellate courts had overlooked.
See Casebolt, 994 S.W.2d at 117-119 (citing Clayton v. Clayton, 679 S.W.2d 431 (Mo. App. E.D. 1984) and In re Marriage of Huey, 716 S.W.2d 479 (Mo. App. S.D. 1986)).
Furthermore, Brown wholly failed to demonstrate prejudice. Had timeliness been raised, the appeal may have been deemed late under Casebolt, but the Court may have granted leave to file the appeal out of time. See Rule 81.06(a). Had the State's right to appeal been raised, the Court may have dismissed the appeal, but the State could have sought relief through an extraordinary writ. Moreover, even if the appeal had been dismissed on either of these jurisdictional grounds, Brown cannot show that on re-trial he would have been acquitted.
The trial court did not clearly err in finding that counsel was not ineffective for failing to raise these jurisdiction issues on appeal. Point I is denied.
B. Counsel's Failure to Object to References to Homosexuality
In his second point, Brown contends that trial counsel was ineffective for failing to object to statements that implied he was homosexual or bisexual. "[W]e leave decisions about whether or when to make objections at trial to the judgment of counsel." Helmig v. State, 42 S.W.3d 658, 679 (Mo. App. E.D. 2001). In fact, we presume that counsel acted professionally in making these decisions and that any challenged action was a part of counsel's sound trial strategy; the movant must overcome these presumptions by showing that the failure to object was not strategic. Barnett v. State, 103 S.W.3d 765, 769, 771-72 (Mo. banc 2003).
Brown has not overcome those presumptions here because trial counsel's deposition testimony demonstrates that the decision not to object was reasonable trial strategy. Counsel reasonably believed that references to Brown's sexual orientation would come out at trial one way or another — likely to show motive (the defense theory was that Brown and the victim had a happy marriage and he had no motive to kill his wife). It was determined that not objecting when the State opened the door to the defendant's character would give defense counsel the opportunity to present evidence of the victim's character, particularly that she had had an abortion. Counsel felt that both pieces of information — homosexuality and abortion — would be influential with the conservative jury. As to references to Brown's sexual orientation by jailhouse informants, the strategy was to demonstrate that they were lying in exchange for something from the government. The trial court did not clearly err in finding the failure to object to be within the range of permissible strategic decisions. See State v. Basile, 942 S.W.2d 342, 356 (Mo. banc 1997) (no clear error when counsel testified that decision not to object was strategic).
Point II is denied.
C. Counsel's Failure to Raise Circumstantial Evidence Issue on Appeal
In his final point, Brown argues that counsel was ineffective for failing to raise on direct appeal of his conviction the trial court's refusal to give the circumstantial evidence instruction under State v. Grim, 854 S.W.2d 403 (Mo. banc 1993). In Grim, the Court rejected the circumstantial evidence rule and forbade use of the instruction, which had been permissible at the time of Brown's crime in 1992. See id. at 407-08. Brown argues that had counsel raised this issue, his conviction would have been reversed because application of Grim to his case violates the prohibition against ex post facto laws. This argument is wholly without merit.
The proscription against retroactive laws contained in Article I, Section 13 of the Missouri Constitution applies only to legislative enactments, not to judicial decisions. State ex rel. Clark v. Shain, 119 S.W.2d 971, 973 (Mo. 1938); Scheble v. Missouri Clean Water Commission, 734 S.W.2d 541, 557 (Mo. App. E.D. 1987); In re Marriage of Simpelo, 542 S.W.2d 558, 560 (Mo. App. 1976). Grim did not even discuss a statute or legislative action. See Chambers v. Figgie International, Inc., 838 S.W.2d 168, 172 n. 5 (noting that no authority precluded application of Art. I, sec. 13 to appellate court explanation, interpretation, or application of statute). Rather, the circumstantial evidence "rule" was a common law development. See Grim, 854 S.W.2d at 405-407 (citing State v. Dulany, 781 S.W.2d 52 (Mo. banc 1989), State v. Pritchett, 39 S.W.2d 794 (Mo. 1931) and State v. Livingston, 801 S.W.2d 344 (Mo. banc 1990)). The Supreme Court's abolition of the common law circumstantial evidence rule and the instruction thereon is not an ex post facto "law." See also State v. Woodworth, 941 S.W.2d 679, 700 (Mo. App. W.D. 1997) (rejecting similar argument on other grounds).
The trial court did not clearly err in finding that counsel was not ineffective for failing to raise this issue on appeal. Point III is denied.
The judgment is affirmed.