593 S.W.3d 75
Mo.2019Background:
- In Sept. 2009 David Hosier broke into Angela Gilpin’s apartment and fatally shot her and her husband; evidence recovered from Hosier’s vehicle after his arrest included a STEN submachine gun (murder weapon), 14 other firearms, ammunition, a note expressing violent intent, and inculpatory voicemails.
- A jury convicted Hosier of first-degree murder, armed criminal action, first-degree burglary, and unlawful possession of a firearm by a felon; the jury unanimously recommended death and the trial court sentenced him to death (plus additional terms for other counts).
- This Court affirmed his convictions and evidentiary rulings on direct appeal in State v. Hosier, 454 S.W.3d 883 (Mo. banc 2015).
- Hosier filed a timely Rule 29.15 postconviction motion alleging, inter alia, multiple ineffective-assistance-of-counsel claims and judge-disqualification concerns; an evidentiary hearing was held and the motion court (the trial judge) denied relief.
- On appeal from denial of postconviction relief, the Supreme Court of Missouri reviewed claims including: counsel’s refusal to stipulate to a prior felony (Old Chief issue), failure to file a written severance motion, appellate counsel’s omission, failure to call a psychiatric expert in the penalty phase, failure to strike two jurors, failure to object to certain victim-impact testimony and closing argument remarks, and Judge Joyce’s recusal/disqualification.
Issues:
| Issue | Plaintiff's Argument (Hosier) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Failure to stipulate to prior Indiana felony (Old Chief) | Counsel should have stipulated to prior felony so jury would not hear violent facts of 1993 battery that prejudiced guilt-phase verdict | Counsel reasonably declined stipulation to avoid surprising jury at penalty phase and to use judgment’s mitigating language recommending psychiatric treatment | Counsel’s choice was reasonable trial strategy and no prejudice shown; claim denied |
| Failure to file written motion to sever felon-in-possession count | Counsel ineffective for not filing required written severance motion under Rule 24.07 | Even a written motion would likely have been overruled; joinder permissible under §565.004.3, and no prejudice because firearms evidence admissible as consciousness of guilt | No ineffective assistance; motion would have been overruled and no prejudice |
| Appellate counsel’s failure to seek plain-error review of severance denial | Appellate counsel should have raised severance on plain-error grounds | Appellate counsel reasonably prioritized other, stronger evidentiary claims; severance issue was nonmeritorious and not prejudicial | No ineffective assistance of appellate counsel; strategic choice reasonable and no prejudice |
| Failure to call psychiatric expert in penalty phase | An expert was needed to interpret 1986 Fulton State Hospital and 2007 medical records to support statutory mitigation (extreme mental/emotional disturbance; impaired capacity) | Defense presented mitigation via witnesses and records; no showing an expert would have produced a viable mitigation defense that would likely change verdict | Decision not to call expert was reasonable strategy and no reasonable probability penalty outcome would differ |
| Failure to strike jurors R.M. and M.O. | These jurors were too death‑prone and could not realistically consider life without parole | Voir dire showed both could follow instructions and consider life; counsel’s decisions were strategic based on questionnaires and consultant input | Denied — counsel’s choices reasonable and no prejudice shown |
| Failure to object to Dakota Gilpin’s testimony about loss of both parents | Testimony about father (not charged victim) was improper victim-impact evidence on penalty | Counsel reasonably avoided objecting to avoid highlighting sympathetic testimony and prolonging it; strategic choice | Denied — reasonable tactic and no reasonable probability outcome would differ |
| Failure to secure stronger objection to prosecutor’s remark that prior defendants were executed | Counsel did object at trial to improper factual argument; court allowed prosecutor to reframe; no counsel deficiency | Counsel did object during argument; issue was preserved for direct appeal (not raised here) | Denied — objection was made at trial and counsel not ineffective |
| Judge Joyce disqualification / sua sponte recusal | Judge should have recused for prior decades-old prosecutor role that touched on Hosier’s ex-wife | Prior role involved routine child‑support enforcement decades earlier; no extrajudicial bias or appearance of impropriety; claim not raised at trial/appeal | Motion to disqualify in postconviction proceeding properly denied; sua sponte recusal claim waived on postconviction review |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective assistance of counsel standard)
- Old Chief v. United States, 519 U.S. 172 (a defendant’s stipulation to a prior conviction can avoid unfair prejudice from its details)
- State v. Hosier, 454 S.W.3d 883 (Mo. banc 2015) (direct appeal affirming convictions and admissibility of firearms evidence as consciousness of guilt)
- Deck v. State, 68 S.W.3d 418 (Mo. banc 2002) (prejudice standard for penalty-phase ineffective assistance)
- Forrest v. State, 290 S.W.3d 704 (Mo. banc 2009) (standard of review for postconviction findings)
- Davis v. State, 486 S.W.3d 898 (Mo. banc 2016) (presumption counsel’s conduct was reasonable)
- Storey v. State, 175 S.W.3d 116 (Mo. banc 2005) (standard for ineffective appellate counsel)
- McKinney v. State, 314 S.W.3d 339 (Mo. banc 2010) (severance is trial court discretion)
- Strong v. State, 263 S.W.3d 636 (Mo. banc 2008) (prejudice presumption in jury-selection claims requires a biased venireperson served)
- Anderson v. State, 196 S.W.3d 28 (Mo. banc 2006) (strategic choices insulated from ineffective-assistance claims)