392 S.W.3d 8
Mo. Ct. App.2012Background
- Midgyett was convicted by jury of attempted robbery in the first degree and murder in the second degree.
- At trial, Moody, Hawkins, and Salisbury testified against Midgyett; his alibi defense relied on family and a Sprint engineer’s cell-phone evidence was promised but not presented.
- Before the second trial in 2007, Cunningham was convicted of Kelly’s murder and agreed to testify against Midgyett.
- Counsel planned to present Sprint cell-phone expert testimony to show Midgyett could not have been at Kelly’s apartment; after Cunningham’s testimony, counsel decided not to present the Sprint evidence.
- Counsel ultimately did not call several potential witnesses (including Angel Midgyett, Darlene Midgyett, and Chrisman) and did not cross-examine Moody further, later asserting strategic reasons.
- Midgyett filed a Rule 29.15 motion alleging ineffective assistance of counsel and the denial of that relief was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffectiveness for not calling Sprint engineer | Midgyett asserts counsel promised expert testimony but did not call Chrisman. | Counsel’s decision was a strategic choice given Cunningham’s cross-examination and tower data. | Not clearly erroneous; strategy-based decision upheld. |
| Cumulative error analysis | Aggregate errors deprived Midgyett of a meaningful defense. | Most claimed errors were trial strategies or non-prejudicial. | No cumulative prejudice; no error in denying post-conviction relief. |
| Other witness failures considered cumulatively | Failure to call multiple witnesses, including Angel Midgyett, affected outcome. | Witnesses’ testimony would not have provided a viable defense or changed the result. | No reversible error; Angel only possibly would not have altered result. |
Key Cases Cited
- Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005) (treatment of witness failure and need for viable defense)
- Gennetten v. State, 96 S.W.3d 143 (Mo. App. W.D. 2003) (distinguishing inadvertence vs. trial strategy in calling witnesses)
- Blankenship v. State, 23 S.W.3d 848 (Mo. App. E.D. 2000) (promises of evidence analyzed under strategic decisions)
- Francis v. State, 183 S.W.3d 288 (Mo. App. W.D. 2005) (unforeseeable events may justify strategy changes)
- Hutchison v. State, 150 S.W.3d 292 (Mo. banc 2004) (trial strategy presumption for counsel decisions)
- Borst v. State, 337 S.W.3d 95 (Mo. App. W.D. 2011) (broad review of trial strategy in Strickland context)
- Tokar, 918 S.W.2d 753 (Mo. banc 1996) (presumption of proficient trial strategy; burden on movant)
- Gray v. State, 139 S.W.3d 617 (Mo. App. W.D. 2004) (non-errors cannot aggregate to error)