Giordanio A. Blackburn v. State of Missouri
2015 Mo. App. LEXIS 859
| Mo. Ct. App. | 2015Background
- Movant Giordanio Blackburn was tried separately, convicted by jury of first-degree murder, kidnapping, child kidnapping, and armed criminal action for the 2009 killing of Al-Regis Clay; multiple life sentences were imposed and affirmed on direct appeal.
- Movant filed a pro se Rule 29.15 post-conviction motion alleging prosecutorial charging disparity, failure to challenge the charging instrument, and failure to investigate/call witnesses.
- The court appointed post-conviction counsel on March 18, 2013; counsel filed an amended Rule 29.15 motion on June 17, 2013 asserting ineffective assistance by trial counsel for (1) not requesting a mistrial or jury instruction after an allegedly improper prosecutor remark in closing and (2) failing to advance a consistent theory about witness Jessica Welch’s identification/motive.
- The motion court denied the amended motion without an evidentiary hearing, finding the prosecutor’s comment was not improper and Movant did not show prejudice from trial counsel’s alleged strategic choices.
- The Court of Appeals found the amended motion was filed 31 days late under Rule 29.15(g) and the motion court did not perform the required independent inquiry into whether post-conviction counsel’s untimely filing amounted to abandonment.
- The appellate court reversed and remanded for the motion court to conduct the abandonment inquiry and proceed consistent with its findings (i.e., decide whether to consider the amended motion or adjudicate the initial motion).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for failing to move for mistrial or request jury instruction after prosecutor’s closing remark | Blackburn: counsel had no reasonable strategy for failing to seek mistrial/instruction after the remark | State: remark not improper; no prejudice shown | Not decided on merits — remand required because amended motion was untimely and abandonment inquiry was not performed |
| Whether trial counsel was ineffective for failing to develop a consistent theory regarding witness Welch’s identification/motive | Blackburn: counsel’s inconsistent theory prejudiced him; facts in amended motion unrefuted by record | State: Movant’s claims fail; no prejudice shown | Not decided on merits — remand required for abandonment inquiry before adjudication |
| Whether the amended Rule 29.15 motion was timely and whether the motion court should have inquired about abandonment | Blackburn: (implicit) amended motion should be considered; counsel’s tardiness excused if abandonment found | State: amended motion untimely; remand for abandonment inquiry | Held: amended motion was untimely; motion court failed to conduct mandatory independent inquiry; case reversed and remanded for that inquiry |
Key Cases Cited
- Zink v. State, 278 S.W.3d 170 (Mo. banc 2009) (standards for reviewing post-conviction findings)
- Moore v. State, 458 S.W.3d 822 (Mo. banc 2015) (untimely amended Rule 29.15 motions can constitute abandonment; motion court must inquire)
- State v. Blackburn, 383 S.W.3d 490 (Mo. App. E.D. 2012) (direct appeal affirming conviction)