519 S.W.3d 413
Mo.2017Background
- In 2000 Michael Tisius was convicted of two counts of first-degree murder for killing two jail deputies; juries recommended death sentences that were affirmed on direct appeal.
- The Missouri Supreme Court later granted post-conviction relief and ordered a new penalty-phase retrial; retrial occurred in 2010 with defense counsel Slusher and McBride (flat-fee arrangement).
- At retrial the State introduced aggravating evidence including: (1) jail incidents where Tisius allegedly mimicked shooting and bragged about the murders, and (2) a 2006 Alford plea to possession of a boot shank found in his cell.
- Defense presented live mitigation testimony from psychologist Dr. Shirley Taylor and family witnesses; portions of other experts’ prior testimony were read via stipulation rather than live testimony.
- The retrial jury found aggravating circumstances, no mitigating circumstances, and again recommended death; those sentences were affirmed on direct appeal.
- Tisius filed a Rule 29.15 post-conviction motion alleging multiple instances of ineffective assistance of trial and appellate counsel; the motion court held an evidentiary hearing and overruled the motion. This appeal affirms that judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to rebut boot-shank evidence | Counsel should have investigated, introduced plea transcript and photos to rebut dangerousness inference | Trial counsel reasonably avoided "double-edged" materials and hearsay; photos/transcript would not have undermined jury's view | No ineffective assistance — additional evidence would not create reasonable probability of different outcome |
| Failure to rebut Boone County jail bragging | Counsel should have elicited Dr. Peterson’s interpretation that the comment was fear, not bragging | Dr. Peterson’s view was equivocal; would not conclusively refute State witness | No ineffective assistance — rebuttal testimony was inconclusive and not likely outcome-determinative |
| Failure to investigate Chariton County gesturing incident | Counsel should have used lighting photos and witnesses to discredit jail deputy’s observation | Photographs conflicted with State investigator’s observations; making a "mini-trial" was a reasonable strategic avoidance | No ineffective assistance — strategy reasonable and additional evidence unlikely to change result |
| Selection and preparation of expert testimony | Counsel failed to prepare Dr. Taylor and omitted material portions of Dr. Peterson’s prior testimony | Strategy to present Dr. Taylor live and limited Peterson excerpts was reasonable; omitted portions were cumulative or damaging | No ineffective assistance — choices were reasonable trial strategy and lacked prejudice |
| Failure to call certain mitigating witnesses | Counsel omitted father, stepmother, friends, and teacher whose testimony was cumulative or risked negative inference | Such witnesses offered no unqualifiedly favorable mitigation and testimony was largely cumulative | No ineffective assistance — omission was reasonable and not prejudicial |
| Failure to object to portions of prosecutor's closings | Counsel should have objected to emotional appeals and statements about mercy | Prosecutor’s statements were proper comments on credibility and to argue State’s view of justice; not improper law statements | No ineffective assistance — objections would have been nonmeritorious |
| Flat-fee conflict of interest | Flat-fee arrangement discouraged full advocacy and limited investigator time | Counsel credibly testified fee did not affect representation; PD office supplemented resources | No ineffective assistance — no actual conflict shown |
| Mental-age Roper claim | Counsel should have argued that Tisius’s psychological immaturity (mental-age) precluded death under Roper | Roper applies to chronological juveniles under 18; mental-age theory is not a recognized basis to bar death penalty | No ineffective assistance — claim lacked legal merit |
| Appellate counsel failed to raise double jeopardy claim | Appellate counsel should have argued the State was collaterally estopped from re-raising an aggravator not found earlier | Precedent holds failure to find an aggravator earlier is not an acquittal; claim lacked merit and counsel’s omission was reasonable | No ineffective assistance — appellate omission was not deficient because issue was meritless |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- Roper v. Simmons, 543 U.S. 551 (U.S. 2005) (constitutional ban on death penalty for offenders under 18)
- Atkins v. Virginia, 536 U.S. 304 (U.S. 2002) (death penalty unconstitutional for mentally retarded defendants)
- Chambers v. Mississippi, 410 U.S. 284 (U.S. 1973) (exceptions to hearsay exclusion where reliability and necessity justify admission)
- State v. Tisius, 362 S.W.3d 398 (Mo. banc 2012) (direct-appeal decision affirming death sentences after penalty-phase retrial)
- State v. Simmons, 955 S.W.2d 752 (Mo. banc 1997) (failure to find aggravator does not constitute acquittal for double jeopardy purposes)
- McIntosh v. State, 413 S.W.3d 320 (Mo. banc 2013) (applying Strickland performance and prejudice standards in Missouri)
- Barton v. State, 486 S.W.3d 332 (Mo. banc 2016) (standard for reviewing Rule 29.15 findings)
- Ervin v. State, 80 S.W.3d 817 (Mo. banc 2002) (duty of counsel in capital sentencing to neutralize aggravators and present mitigation)