512 S.W.3d 112
Mo. Ct. App.2017Background
- Hawkins was charged with two counts of first-degree assault and two counts of armed criminal action after witnesses identified him as the shooter.
- In opening, defense counsel told the jury Hawkins would testify and present an alibi: he was with girlfriend Tia Hughes at the time of the shooting.
- Hughes was subpoenaed and initially appeared at a prior trial date, but became unreachable and ultimately did not appear at trial despite counsel’s efforts.
- Defense counsel abandoned the alibi theory mid-trial (because Hughes failed to appear) and shifted to a bias defense; counsel then advised Hawkins not to testify because his planned testimony would undermine that bias theory.
- Hawkins was convicted and filed a Rule 29.15 post-conviction motion claiming ineffective assistance for promising Hawkins would testify and then not calling him, and for failing to secure Hughes’s testimony.
- The motion court denied relief after an evidentiary hearing; the appellate court affirmed, finding counsel’s initial choice and later strategy change were reasonable given unforeseeable events.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for promising Hawkins would testify in opening and then not calling him | Hawkins: counsel’s unfulfilled promise created a negative inference and was objectively unreasonable | State: counsel reasonably planned an alibi based on Hughes’s expected corroboration; her failure to appear was unforeseeable, justifying the strategy change | Court: Held for State — counsel’s promise was reasonable trial strategy and the change was justified by unforeseeable events |
| Whether counsel’s failure to secure Hughes’s testimony was deficient performance | Hawkins: counsel did not do enough to guarantee Hughes’s presence | State: counsel subpoenaed Hughes, contacted her and her mother, attempted body attachment, and reasonably relied on her prior appearance and motivation | Court: Held for State — counsel’s efforts were adequate; absence not due to counsel’s deficiency |
| Whether Hawkins was prejudiced by counsel’s conduct under Strickland | Hawkins: juror inference and lost alibi testimony prejudiced the defense | State: no prejudice shown because counsel reasonably shifted to an alternative defense and Hawkins’s testimony would have harmed that alternative | Court: Held for State — no Strickland prejudice established |
| Whether Blankenship controls (promises to call witness that counsel hadn’t even interviewed) | Hawkins: cites Blankenship as analogous to unfulfilled promises | State: distinguishes Blankenship because counsel here had prepared and interviewed Hughes and reasonably expected her to appear | Court: Held for State — Blankenship inapplicable; this was not a failure of preparation |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Midgyett v. State, 392 S.W.3d 8 (Mo. App. 2012) (unfulfilled evidentiary promises may be excused by unforeseeable events)
- Blankenship v. State, 23 S.W.3d 848 (Mo. App. 2000) (unfulfilled promise unreasonable where counsel failed to verify witness testimony beforehand)
- Cole v. State, 152 S.W.3d 267 (Mo. banc 2004) (reasonable trial decisions at the time made cannot later support ineffective-assistance claims)
- Vaca v. State, 314 S.W.3d 331 (Mo. banc 2010) (standard of review for motion court factual findings)