*1 HOEBER, Appellant, Edward L. Missouri, Respondent.
STATE
No. SC Missouri, Court
Supreme
en banc. 3,May
Opinion issued *2 represented by Evan J.
The state was general’s office attorney of the Buccheim (573) City, in Jefferson 751-3321. Breckenridge, Chief Patricia Justice *3 of two Edward L. Hoeber was convicted first statutory sodomy counts degree, section Mr. Hoeber sub- 566.062.1 29.15 motion sequently a Rule filed alleging that his trial postconviction relief object to failing was ineffective for his consti- to verdict that violated directors jury to a unanimous right tutional verdict expert testify failing and for hire motion sentencing hearing. at the The court that trial counsel’s failure concluded did not the verdict directors prejudice Mr. Hoeber because risk ex- jurors were misled about isted applied to each which incident abuse statutory sodomy. count motion court further concluded that counsel was not ineffective expert testify hire an Hoeber’s Mr. sentencing hearing. The post- motion for overruled Mr. Hoeber’s conviction relief.
The two verdict directors submitted identify Mr. both failed Hoeber’s case specific act despite or incident abuse regarding inci- testimony at trial inappropriately dents Mr. Hoeber S.M., touching the victim. Given the evi- of abuse dence of incidents trial and the state’s empha- introduced at closing argu- sis on such in its ment, non-specific verdict directors a risk that not unan- jurors created did they imously agree as to the acts for which A finding guilty. Mr. Hoeber rea- therefore, exists, probability sonable in this case misled represented Laura G. both verdict Hoeber directors way public defender’s office or misdirected the such Martin (816) Accordingly, City, Kansas 889-7699. affected verdicts. noted, Supp. 2007. all cita- tions are to RSMo 1. Unless otherwise 2007, S.M., mother, failure erroneous July and Mr. living, Hoeber were prejudiced Mr. Hoeber. a one-bedroom directors apartment St.-Joseph. S.M.’s mother Moreover, reasonably attor- competent increasing problems health to, objected ney requested would have spend her to the majority of the caused of, insufficiently the two the modification day sitting in a recliner in room. to protect specific verdict problems, Because her health she was to a unanimous ver- result, unable care for As a trial, dict. At the time of Mr. Hoeber’s prepared meals, bathed and signif- notes on MAI use addressed S.M., helped dressed S.M. use the and. icance of modifying verdict directors bathroom. While Mr. Hoeber was taking cases, multiple acts and was well-estab- S.M., diagnosed care she was with a Missouri law that the must lished *4 vaginal Because S.M.’s mother .infection. and certain as to crime of be definite medication, was unable to apply the Mr. guilty. which the is found accused The Hoeber applied using it to S.M.’s genitals Celis-Garcia, fact that State finger. (Mo, 2011), yet to had be decided 2007, September By Mr. Hoeber was no time of Mr. Hoeber’s does longer living apartment, at the and S.M. object trial counsel’s failure to excuse was in placed foster care. inWhile foster the two erroneous directors. Con- care, S.M. tier foster mother that told Mr. sequently, because reasonable trial Hoeber tiad her. After touched the disclo- strategy existed for trial counsel’s failure sure, began seeing S.M. therapist. child non-specific verdict di- therapist S.M. told the that Mr. Hoeber rectors, performance trial counsel’s fell “private had touched her area.” range professional, outside the wide By 2008, January S.M. had returned competent assistance. living night, with her One mother. S.M. began talking in sleep saying “Stop tier it! Accordingly, Mr. Hoeber established her, Stop it!” mother When S.M.’s woke trial counsel was ineffective his. ques- S.M. said me.” “Eddie Kurt When insufficiently specif- two further, tioned said that Mr. Hoeber S-M. ic and the “pee-pee” had her and touched demon- clearly overruling erred Mr. Hoeber’s her how he strated to mother had touched 29.15 motion for post-conviction Rule re- genitals. po- her S.M.’s mother called the This lief. Court reverses the motion ' lice. judgment court’s and remands case. charged
Mr. was with two degree sodomy.2 counts of first Background Factual Procedural n questioned, originally When Mr. Hoeber 2004, born In S.M. was in 2003. touching inappropriately S.M. denied began Hoeber, dating mother who requested that he detector test be ad- family moved with the soon thereafter. ministered. Coates Detective Scott Mr. Hoeber and S.M’s ended their mother County prepared Buchanan sheriffs office relationship romantic in 2005. Neverthe- Mr. Hoeber lie detector test. less, so, Mr. Hoeber continued live with the While asked doing Detective Coates intermittently through family anything if Mr. Hoeber there -'was 2, however, charged charges, Mr. Hoeber was also with two tion 566.067. These were molestation, degree counts of first sec- child dismissed at trial. . that,- I, Hoeber, I him state that dated telling Edward
Hoeber was year. him I should tell for about one were, [S.M.’s mother] Mr. Hoeber there eventually- Mr. Hoeber this is [S.M.’smother] test. lived with before the December, in the bathroom I touching S.M. 2005. Then September admitted occasions. Detective I separate say [S.M.’s have lived with two would Hoeber’s admis- transcribed Mr. off and on December mother] Coates since then August in a statement Mr.'Hoeber I jail sion came of 2007.3 signed. I During the time lived [S.M’s with. mother], she would have me take care of proceeded to trial. case daughter, give I her a would [S.M.]. Hoeber touched her that Mr. S.M. testified got wipe bath and after she sometimes his hand her butt with private area and [S.M.] done the bathroom. was one time. When asked what more than month. touching oc- She will be next room she when curred, it was in the kitchen. stated arrested, got month I About a before testify touching that no on to S.M. went living at we 619 North 9th. were bathroom, or occurred time, Around that there were two times room. I inappropriately, touched There [S.M.] two.times where [S.M.] also testified at trial. She S.M.’s mother gotten off the toilet bathroom and had told her that the explained that S.M. *5 pants with down. more than one time. her touching occurred her the testified S.M. told She further pull pants up, her I Before she would touching kitchen my fingers. occurred would rub her clitoris with bedroom. I laugh. would kind would rub She two minutes so. [S.M.’s about testimony additional The state offered sitting would be in the front mother] therapist therapist. The testi- from S.M.’s anything I room. never told her about in September that she first saw S.M. fied know, I this. As far as [S.M.’s mother] visit, During S.M. told the only I it the never knew. did two times. Hoeber therapist that Mr. had touched sorry really I am for what I I need did. “No, her, immediately, then stated he help.' visit, doesn’t.” a later told the At S.M. to, behalf, therapist that “needed on Testifying [the she his own Mr. Hoeber tell ther- secret.”, then apist] touching S.M. disclosed that inappropriately denied S.M. private Hoeber had touched her area explained Mr. his confession coerced hand while she was by with his Detective bed- Coates. visits, subsequent In
room. S.M. disclosed evidence, the close of the trial court At private Mr. Hoeber touched her on two counts of first instructed with his hand on'more than occa- area one degree statutory sodomy. Hoeber’s Mr. describing touchings, sion. object did not to either ver- counsel therapist they had occurred in the told jury. dict director submitted kitchen,, bathroom, and jury guilty, on both found Mr. Hoeber room. counts, the trial Mr. sentenced court offender, Hoeber, years prior then as a to 40 Coates read Mr. Hoe- Detective consecutively. into ber’s evidence. The state- each count to run statement Trial Mr. provided: presented counsel no witnesses on ment jail August present 3. Mr. Hoeber’s arrest and time in 2007 were to the case. unrelated sentencing different had Mr. hearing. Hoeber’s behalf been Hoeber’s trial Dr. to testify.' Hoeber’s was affirmed counsel hired Geis Mr. conviction Hoeber, State v. appeal. direct appealed. Hoeber Mr. After a decision (Mo.App.2011). appeals, court of granted this Court Const, art, V, transfer. Mo. sec. 10. 24, 2010, March Mr. On Hoeber filed his post-conviction motion for pro se relief Standard Review Rqle 29.15. amended In his pursuant This Court’s review of a motion motion, 29.15 Rule claimed Hoeber overruling of a post- court’s motion for trial counsel was ineffective conviction relief is to a limited determina failing to of whether findings tion the motion court’s alleged which he his constitutional violated of fact and conclusions of are clearly law to a unanimous verdict. jury; 29.15(k). erroneous. Rule A motion his trial claimed that coun- further findings and court’s conclusions are “clear provided sel ineffective at the assistance ly only if erroneous this Court is left with sentencing hearing by failing to hire an and firm impression definite that á mis expert present regarding take has been Mallow made.” mitigating effect of Mr. mental 2014). conditions. The Verdict Directors Failed Ensure 3, 2013, May On con- Jury Unanimous Verdicts evidentiary hearing. ducted Trial testified he did not consider In his first point, Mr. Hoeber objecting on the basis that the verdict di- that trial claims counsel was ineffective for rectors failed inci- specify to the verdict directors place touchings dent which the oc- on the two counts of statutory submitted n curred. He further testified that' he had sodomy degree. first Mr. Hoeber *6 strategy no failing the in asserts verdict- directors this verdict directors. Dr. William Geis also his right case violated constitutional to a regard- testified at the evidentiary hearing jury unanimous verdict in that the verdict ing Mr. Hoeber’s mental condition and to specify particular failed a inci likely whether Mr. Hoeber was be a or hand-to-genital dent act of contact de n . repeat offender. of spite multiple evidence acts of hand-to- genital being contact introduced at trial. 25,2013, September On the motion court fact, findings its entered conclusions of The Missouri Constitution provides law, judgment in right which it the of trial as jury overruled hereto “[t]hat post-conviction Mr. Hoeber’s motion for enjoyed shall fore remain Mo. inviolate[.]” Const, so, I, In doing 22(a). the relief con- art. sec. This Court has I, 22(a) cluded that Mr. did not protects Hoeber establish held that article section prejudiced by right that he was trial coun- jury to a unanimous defendant’s ver object' sel’s failure to Hadley, to the verdict di- dict. State v. S.W.2d 1991). rectors because there was risk that “For the verdict jury jurors unanimous, jurors would be misled about inci- in the must be substan acts, applied dents of abuse to a agreement tial the defendant’s step count. The motion court also preliminary determining concluded as ,344 Celis-Gareia, guilt.” Mr. Hoeber failed establish that at 155 (internal of the sentencing quotation the outcome would have Celis-Garcia, offenses, it ported charged ad “im- In Court the possible right jury a unanimous in the dressed the determine whether multiple unanimously agreed any Id. at one the context of a acts case.4 these separate According- in Id. at 158. The defendant Celis-Garcia 155-58. incidents.” statutory ly, this charged two counts of Court that “the with concluded trial, sodomy. defendant’s] Id. at At the two directors violated' consti- [the jury incidents tutional 'to ver- victims testified about a unanimous then occurring locations. Id. Court dict[.]” abuse different Id. This determined plainly that the trial court erred at 153. Two verdict directors —one properly'instruct jury if it each because the victim—instructed had th,e defendant committed the “verdict'directors in a believed misdirected verdict, way constituting sodomy thereby act between affected re- dates, it charged sulting injustice.” must the defen Id. find manifest at statutory sodomy. Id. at guilty dant Celis-Garcia, Similar situation in dates, charged 154-55. Besides the evidence of acts of hand-to-genital particu specify verdict directors did contact, each of which would constitute the identify lar or inci location otherwise of statutory commission of the sod- offense statutory sodomy dent the defendant omy, was presented Mr. Hoeber’s trial. allegedly committed. at 154. S.M. testified that Mr. Hoeber touched her private with his area and butt hand more convictions, vacating the defendant’s .than one in the kitchen. She time further explained: this Court testified that Mr. did not touch her Despite multiple, separate bedroom, inappropriately bathroom, in the statutory sodomy, incidents the ver- mother, however, or room.. S.M.’s dict directors failed be- to differentiate testified touching that S.M. told way tween various occurred bedroom and the kitchen jury unanimously ensured the convicted therapist more than one time. offered act [the defendant] same testimony regarding inci- additional broad language* acts.... This allowed S.M, of hand-to-genital dents contact dis- juror to each individual determine which during therapy closed sessions. The their incident he would consider she therapist reported testified that S.M. had finding guilty statutor [the defendant] being kitchen, touched instructions, ry sodomy. Under living room, than and bathroom more jurors convict [the defendant] could one occasion. Hoeber’s statement *7 they engaged or found she assisted he touching which geni- admitted hand-to-genital chil- contact with the tals twice in the was bathroom also read during dren an incident into evidence. Hoeber then testified shed, porch, the enclosed in the he that his touched S.M. and or in the bathroom. statement was coerced. Id. (emphasis original). at 156 This that, Despite present- Court then found conflicting because there evidence multiple, separate at of of evidence of incidents ed trial acts hand-to- contact, statutory against genital committed sodomy both neither verdict director any sup- specified victims and them room or would have incident. charge, charged "A is acts case arises when there is criminal but the defendant acts, multiple, single evidence of distinct criminal with acts in a count.” those Celis- Garcia, each of could serve as for the basis 344 15S-56. S.W.3d at
655 Instead, sodomy two counts of Trial Counsel Was Ineffective for Object Failing submitted —Instruction Directors Verdict 10. Instruction No. 8 and Instruction No.
No. 8 reads: This Court must now determine to object whether counsel’s failure I, you
As to find Count and believe the erronbous verdict directors constituted from the evidence ineffective assistance of To counsel. es First, 1, July between 2007 and counsel, tablish ineffective assistance of 2007, 29, August County in the of Bu- prove “by movant must preponderance chanan, Missouri, State [Mr. Hoeber] (1) counsel failed to knowingly genitals of touched .the diligence exercise the level of skill and hands, with his reasonably competent counsel would exer (2) in a cise similar situation and the mov- prejudiced by ant was that failure.” Dor Second, that such. conduct constituted State; 276, (Mo. sey v. 448 S.W.3d 286-87 intercourse, deviate sexual 2014) (citing banc Washing Strickland v. ton, 668, 687, 466 U.S. S.Ct. (1984)). If a L.Ed.2d movant fails Third, the time S.M. a child test, satisfy either prong the Strickland old, you less than twelve then will years he post-conviction or she is entitled guilty I [Mr. Hoeber] find under Count Simmons, relief. State v. 955 S.W.2d statutory sodomy degree. in the first (Mo. 1997). banc satisfy performance To No. 10 contained the identical Instruction prong, strong movants “must overcome the language except references to Count presumption that counsel’s conduct was II. reasonable effective.” Johnson v. 2013). Because the verdict directors failed presumption is This overcome when a identify any specific or room in incident “specific movant identifies or omis occurred, which the conduct the verdict sions of light all the juror directors allowed each individual circumstances, range fell outside wide determine which incident he or she would professional competent assistance.” finding consider in guilty (internal quotation of statutory sodomy. count each Under To establish prejudice, Strickland director, juror each each could proba “a movant must show reasonable Mr. Hoeber guilty have found engaging errors, bility but in hand-to-genital during contact with S.M. outcome would have been Dor different.” or in kitchen the bath- incident sey, 448 at 287. “A reasonable room or in the room or in the bed- probabil is a probability exists when there therefore, room. The verdict *8 to ity sufficient undermine confidence a jurors created real risk that the did not (internal quotation the outcome.” unanimously agree on the of specific acts statutory sodomy they for which Mr. found guilty. Accordingly, Hoeber the verdict The motion court concluded that counsel’s, jury directors to a unanimous failed ensure to verdict failure the prejudice verdict. directors did Mr. Hoeber. so, of in justifying In motion court acts occurred doing the reasoned abuse had ‘ Celis-Gareia, fact, In conflicting the the risk that the statements. closing argument by jury misdirected oc- state its verdict the concluded directors emphasized stating: touched' on Hoeber] the mul- “[Mr. [S.M.] curred because state at least tiple July bad acts. occasions in 2007 between uncharged The motion two no August...(Empha- that 1st and the court risk the end there found added). jurors about sis the evidence misled incident Given were , Mr. acts of at trial particular to. count in abuse and the applied abuse introduced Hoebpr’s emphasis about state’s on evidence in case because S.M. such its testified closing non-specific any argument, particular two incidents5 and un- the , by charged jurors committed directors created a real risk the Hoeber acts as to unanimously agree focus the did the emphasis, were not the or. ., finding for which they state’s Hoeber case. Therefore, guilty. probabili- a reasonable however, explained, As the previously ty exists in this that the verdict case di- conflicting evidence at trial presented state rectors or the jury misled misdirected S.M. had disclosed incidents hand- this way such that undermines Court’s kitchen, to-genital occurring contact the confidence the verdicts. room, living the and the closing argument, In its' though bathroom. The state asserts even mul- conflicting-.state- tiple sodomy state statutory S.M’s acts of were intro- addressed' ' n evidence, prejudice ments: into duced resulted from trial counsel’s failure child, talking- to a you’re when When non-specific verdict directors because Mr. you question, they’re going them ask “unitary employed defense” at jogs. memory answer whatever trial. In argument, of its the state support something happens to them mul- And LeSieur, on relies State v. tiple times, they might one time remem- (Mo.App.2012), proposition for the that the they kitchen. The next ber the time type employs defense deter- defendant remember bedroom. might time, jurors mines risk exists whether-a they might liv- next remember the not unanimously agree they on the did act ing room. guilty committing. found defendant spit They’re going out whatever you to them makes think what said them LeSieur, the defendant convicted that’s what’s happened about. And second-degree of two counts happened this And this more child. rape. appeal, Id. at On defendant than time. Even said one defendant argued that the trial court violated hap- it happened [S.M.] twice. said to a unanimous constitutional pened than -one time a lot. more the verdict failed because closing require agree As on argument, specific reflected him guilty state’s not limited to focused act he ease was committed find count; any particular rape appeals incidents of abuse. each Id. The court two Instead, argued in failing the state found that trial court erred conclusions, findings In its more than one the kitchen. the- time in When questioned incorrectly states that about other rooms which the S.M. "testified occurred, thát to two incidents: one in the bed- abuse testified no abuse S.M. bathroom, room', room:' in the'kitchen." testified and one occurred at1 that Mr.- Hoeber touched bedroom.
657 vic- jury instruct the because the. cific verdict properly directors were prejudicial to defendant, multiple statutory acts of- required tim testified to Court riot defense; to find prejudice in- rape but the did not based on her verdict directors analysis This Court’s holding in Celis- any distinguishing clude characteristics. Nevertheless, Garcia was not that a Id at the court conclud- defendant like Mr. prejudice could suffer from ed that the erroneous verdict directors did specific insufficiently just in plain not result error. Id. at 465. The n , employed general because unitary he a ... reasoned: defense. To the extent LeSieur and .its Celis-Garcia makes clear to estab- progeny otherwise, suggest they no should injustice on lish manifest based an insuf- longer be followed. ficiently specific director a case, multiple acts the defendant must Rather, previously explained, to incident-specific have mounted de- an prejudice, establish “a movant must show a fense, given jury have a would probability reasonable but for coun that} to distinguish among basis the various errors, sel’s the outcome have been would incidents mentioned the evidence. Dorsey, different.” 448- S.W.3d at where, suggests Celis-Garcia the Moreover, in reviewing post-conviction a unitary defendant instead mounts a de- case, relief appropriate “the standard actions, attacking to all alleged fense prejudice should somewhat lower” than credibility generally, victim’s manifest plain needed to establish error. Deck injustice not exist. does 418, v. 427-28 n 2002) (internal. omitted).. (internal.'quotation quotation Since Le- Sieur, have, likewise, post-conviction ultimate determination in multiple cases held relief case incident-spe- that the failure to is “whether-defendant mount has suf genuine deprivation cific precludes finding defense non- fered n counsel, specific effective verdict directors resulted mani- assistance such that this injustice. fest King, See State v. 453 confidence Court’s fairness proceeding is (Mo.App.2015); S.W.3d 376-77 State Id. at 428. undermined.” Payne, (Mo.App. S.W.3d 56-57 Trial counsel’s failure‘to- 2013); Rose, State v. S.W.3d insufficiently specific verdict directors sub- (Mo.App.2013). to -the mitted undermines Court’s Celis-Garcia, however, point At no confidence in reliability the verdicts. trial, did this Court that a conclude At conflicting defendant heard state- asserting general defense could never be ments about incidents hand-to- genital prejudiced non-specific verdict di- contact. The state’s case-was not Instead, rectors. this Court to.any focused on or specific limited .found Rather, the fact that the defendant Celis-Garcia or incidents of sexual abuse. evidentiary “relied on argued inconsistencies state that Mr. Hoeber had abused improbabilities respecting factual al- each times and at least two legation hand-to-genital of- makes contact occasions. Because there n likely it more jurors multiple, con- separate individual incidents of victed her different sodomy, ..any sup- basis acts.” of which would have Celis-Garcia, offenses, (emphasis ported charged and neither added). words, specified while the act- -.In other verdict director act incident, specific helped requirement defense Celis-Garcia there was insufficiently jurors agree this Court find spe- on the same act to find *10 Nevertheless, at the occurred. Id. on either count of offense guilty Hoeber trial, directors, therefore, the notes verdict time Mr. Hoeber’s sodomy. The that, warning in jury express a risk that the verdicts created real use contained Despite this in commit- not sub- which the defendant has unanimous. cases jury acts, unanimity distinguishing of the multiple separate stantial threat ted verdicts, impor- trial counsel failed Mr. Hoeber’s the offenses of crucial between is insufficiently specific ver- object tance and that the verdict directors should Accordingly, accordingly. trial counsel’s this ex- modified Given directors. be dict object reasonably competent at- press warning, failure to the erroneous verdict a to, objected request- Mr. Hoeber. prejudiced torney would have of, the the modification verdict directors ed the motion conclud Because right to a unani- protect a defendant’s prejudiced by Hoeber was not ed that Mr. multiple in a acts case. jury mous object, it not trial failure to did perform acknowledges that the whether trial counsel’s The state notes determine range of professional, on use at the time of trial-addressed modi ance fell outside multiple in argues competent Mr. Hoeber fication verdict directors assistance. Nevertheless, failure it asserts trial counsel’s cases. trial, professional in time of at the time prevailing unreasonable at the norms require on use to MAI-CR3d 304.02 of Mr. not the notes did modify need-to verdict di counsel to because Celis-Garcia had warned of a non-unani yet rectors to the risk been The state contends avoid decided. found in jury a acts case. that trial counsel should be mous verdict- “place change provided competent failing predict on use that the notes may from of the offense become ‘decisive in-the this Court’s law resulted may importance’ opinion ... where the defendant Celis-Garcia. separate several offenses have committed In trial counsel’s evaluating gener against the same victim the same performance, “counsel’s-conduct is meas of time.” space al location within short is at the time of ured law what 304.02, “In on Use 6. MAI-CR3d Notes State, 170, 190 trial.” Zink 278 S.W.3d situation, upon request of.the such a defen 2009). It trial coun follows that motion, or on the dant own Court’s “not typically sel will be held ineffective more, identified,
place
definitely
should be
change
anticipate
on the
such
‘the front
second
bedroom
(internal quotation
law.”
floor,’
corner of the base
‘the southeast
Celis-Garcia,
opinion
This Court’s
how
ment,’ etc.” Id.
ever,
not constitute
substantive
did
Celis-Garcia,
this Court determined
change
the law.
suggested by
the modification
explained
As
in Barmettler v.
protect
“insufficient to
use was
*11
as to
crime of
definite and certain
the
would have been'convicted.7
'
guilty.”6
the
is found
accused
State
is
presumption
There
“a
401,
Washington,
v.
242 Mo.
146 S.W.
alleged
counsel’s
omissions
tri
were sound
1164,
(1912);
1166
see
State
Jack-
also
v.
strategy.” Storey
al
v.
175 S.W.3d
son,
410,
1166,
242 Mo.
146 S.W.
1169
116,
(Mo.
(internal
2005)
125
quota
Pruitt,
(1912);
49,
v.
202 Mo.
100
State
eyidentiary hearing,
tion
At the
431,432 (1907);
Mitchell,
S.W.
v.
State
704
however, trial counsel
testified
he did
280,
(Mo.App.1986);
5.W.2d
287
State
object
not fail to
to the verdict directors on
811,
Pope,
(Mo.App.1987).
Moreover,
strategy.8
the basis of trial
the
opinion in
This Court’s
Celis-Garcia mere-
trial strategy argument
premisód
state’s
is
.
ly
principle
reiterated this
context of
the
oh
assumption
modifying
the
the
ver
Celis-Garcia,
statutory sodomy
case.
dict directors
have
it
would
made more
therefore,
not
did
a substantive
constitute
likely that Mr.
Hoeber
convicted.
change
the law
cannot
trial
excuse
This argument
contrary
is
to
purpose
object
counsel’s failure
requiring juror unanimity
of
directors.
cases.
acts
The state further claims that trial coun-
Again,
specificity
the lack of
in the ver-
performance
in-
sel’s
cannot be deemed
possible
dict directors
it
made
for each
competent because trial counsel’s failure to
juror to
individual
determine which inci-
object could
viewed as reasonable trial
he
finding
dent
she
consider in
would
strategy
circumstances of
under the
Mr.
guilty
Mr.
Hoeber
each count of statu-
particular,
case.
Hoeber’s
the state
Therefore,
tory sodomy.
one juror could
relies on the fact that Mr. Hoeber’s de-
guilty
have
Hoeber
act
found
fense at trial
not
he did
commit
kitchen,
while
occurred
another
thus,
any
of statutory sodomy;
acts
trial
juror
guilty
could have
him
of an act
found
counsel
rio
would have had
reason to focus
that occurred in the bathroom. The ver-
jury’s
attention on the
acts
dict directors
allowed
convict
by including specific
evidenced
trial
ref-
at
two counts of statutory
erences to
those
alternative verdict
that,
sodomy
requiring
jurors
directors. The state
trial
without
all
asserts
had
objected,
agree on
specific,
have
would
resulted
conduct that consti-
directors,
eight possible
jurors
alternative verdict
tuted each
offense. Because
did
brief,
6.
In its
relies on several
non-specific
state
cases
suited from the
verdict directors
proposition
insufficiently specific
for the
not mean that
at the time Mr.
does
ver-
trial,
prevailing
practice
acceptable
norms
dict
were an
did not
at
directors,
require
object
him to
the time of Mr.
the verdict
Hoeber’s trial.
however,
state,
by
The cases relied on
did
approvingly
non-specif-
uphold
Although
argues
objection
any
use
state
directors;
rather,
ic
by
the courts
trial
found
counsel would have resulted in multi-
case,
ple
under the
each
alternative verdict
the state also
circumstances
insufficiently specific
specific
could
one
verdict directors
have elected
submit
inci-
did
prejudice
statutory sodomy
See
dent
act of
for each
defendant.
State v
.
Smith,
count.
(Mo.App.2000);
32 S.W.3d
Staples,
State v.
908 S.W.2d
190-91
Burch,
App.1995);
credibility
State v.
8. The motion
made no
find-
(Mo.App.1987) abrogation recognized
ings regarding
295-96.
testimony
n,
Mallow,
Simply
hearing
evidentiary
tory sodomy. Fischer, JJ., concur; J. dissents'in failing to strategy existed for able trial J., filed; Wilson, separate opinion concurs non-specific verdict directors. j. Fischer, opinion *12 .trial of reasonable strate- In absence Fischer, dissenting. Judge, Zel M. object to to the failure trial counsel’s gy, did specific verdict directors insufficiently respectfully principal I dissent. skill, care, degree of to the not conform holding that the motion court opinion, reasonably competent a diligence of and erroneous, concluding that clearly was therefore, Hoeber, has attorney. Mr. not ineffective trial counsel was of under circumstances shown non-specific verdict di- object to the to case, performance fell trial counsel’s this rectors, consideration to give fails to due range professional, of outside wide then the defense the circumstances before competent assistance. of presumption to a reason- apply and fails established Accordingly, Mr. has Because ableness to counsel’s conduct. by failing object the insufficient- fur- strategy overall trial defense’s directors, trial counsel’s ly specific verdict verdict di- by non-specific thered Mr. Hoeber deficient and performance was rectors, of non-unani- the risk and because Trial counsel prejudiced. thereby from the mous was low defense’s verdicts assistance when he provided ineffective object failure to perspective, trial counsel’s erroneous verdict failed non-specific verdict directors was clearly motion court and the strategy.1 trial reasonable motion overruling Mr. Hoeber’s erred post-conviction “To relief be entitled post-conviction relief. counsel, óf mov-
for ineffective assistance
Conclusion
of the
by
preponderance
ant must show a
failed
that his or her
counsel
assis-
Mr.
effective
Hoeber was denied
to meet
test
order
the Strickland
when his trial counsel
tance
counsel
v.
prove his or her claims.” Johnson
non-specific
use of
failed
2018).
State,
892,
(Mo.
406
898
banc
S.W.3d
case.
verdict directors
prong
the first
the Strickland
clearly
the motion court
Under
Consequently,
test,
“his or her
overruling
the movant
show
Hoeber’s
must
erred
prejudice prong
point,
only the
ineffective
second
Mr. Hoeber asserts that
his
claim,
clearly
overruling
erred in
issues
”[a]ll
the motion
assistance of counsel
fact
court
post-conviction relief because
.findings
his motion for
upon
specific
are made
provided
at
ineffective
counsel
assistance
having
as
been found in
shall be considered
sentencing hearing by failing
present
Rule
with the result reached.”
accordance
ex-
mitigating evidence from a mental health
73.01(c);
see
v.
also Johnson
pert.
point
Mr. Hoeber’s first
is
Because
2012)
(applying
appeal,
dispositive
this Court need not
motion,
78.07(c)
requir-
Rule
Rule
to a
29.15
point,
second
decide
required
ing
movant to raise the omission
judgment).
findings in
to amend the
a motion
recognized
principal opinion,
even
As
though
expressly
'motion
addressed
court
skill
not defend a
client
counsel failed
exercise
level
n
reasonably compe-
way.
same
diligence that a
would in
situa-
tent
similar
(internal
689,104
Id. at
S.Ct.
citations
added).
(emphasis
at
898-99
tion.”
omitted)
added).
(emphasis
Accordingly,
is,
deciding
That
“a court
ineffec-
actual
reviewing
it is the rare
that’ a
case
judge
must
tiveness claim
reasonable-
presumption
find the
should
reasonable-
challenged
of counsel’s
conduct on
ness
has been
This
ness
overcome.
is
one of
particular case,
facts of the
viewed
cases.
those
of the time of counsel’s conduct.”
Here,
categories
there were
two
evi-
Washington,
Strickland
U.S.
(1)
against
dence
Hoeber:
state-
S.M’s
(1984)
690, 104 S.Ct.
Although specific opinion’s assumption, it un- does not follow scenarios, der both would have en- better “that reasonable trial strategy existed circumstances, prongs Given these it is also under- if the movant failed to make a has skip standable that court- chose to showing sufficient If on one. the ineffective- prong to the of the Strickland test and second disposed can be of ness claim because of lack prejudice. Taylor specifically address See v. prejudice, of sufficient should be course (cid:127) State, (Mo. 2012) 81 382 S.W.3d banc followed.”) (internal citation ("The may not need address both 664 state’s not non-specific decision failing to
for a matter placed in Celis-Gareia was Any importance instructions verdict directors.” general though is not strategy of trial subse- verdicts even on unanimous provided quent case shows such dispositive history whether par- assistance this effective been unreason- reasonably strategy would not have circum- case, Celis-Gareia, able.”). under these ticular v. a direct State Love, See, 503 e.g., case, stances. and re- Court reversed appeal that counsel was argument (rejecting the plain trial on error for a new manded omission failing to raise the charged ineffective broadly review after the State in a motion new of an instruction of first- only two counts defendant with was re- “instruction simply because presented ev- degree sodomy but and, law” applicable quired by then that could have idence numerous ,a at- instead, “that concluding reasonable for each criminal served as basis [the] instruction torney have decided could 150, 154-56 charge. 344 S.W.3d detrimental have been would 2011).' originally con- The defendant was client”). opinion to ad- fails principal first-degree statu- both counts victed of anal- tenets here to basic ineffectiveness tory to two concur- sodomy sentenced of reason- presumption ysis, that there is a at 154. On sentences. Id. 25-year rent are countless “[t]here ableness and however, remand, added new State any assistance ways provide effective acts that charges to match the numerous Strickland, 466 U.S. at given case.” alleged specifical- at trial but had been way pro- Although one S.Ct. on, ly instructed the defendant may in this case assistance effective vide counts subsequently convicted any of non- risk have been eliminate (each sodomy carry- first-degree statutory verdicts, in my another —and unanimous sentence), ing counts of a life six first- as- way provide effective view better — (each degree carrying a child molestation circumstances was sistance under sentence), 15-year count of and one' first- directors, so specific insist on (also á degree statutory rape carrying life Hoe- to not focus deliberations Celis-Garcia, sentence). State damning confession. While ber’s own (Mo.App.2014). These strategy may principal opinion endorse convictions, into account the taking after ver- protection unanimous puts 'the or consecutive nature concurrent foremost, unduly narrows first and dicts sentences, in three con- individual resulted likely original of the consideration plus years. life secutive sentences ' on remand. outcome and outcome Likewise, precluded is not here State noting principal that the also worth It is adding charges Under from after remand.' shoehorning of Celis-Gareia’s opinion’s *16 result, opinion’s analysis and principal relief principles postconviction into the is to amend the State incentivized further opens the door even context charges versions to include all remand considerably prisoners to- matters make record, facts contained ,the pursuit. for. worse themselves knew, knows, is undoubtedly counsel relief, entirely fore- postconviction result not Hoeber’s best interest. the ultimate resolution of based on seeable aside, Ess, this Court repercussions These v. itself. See State Celis-Gareia (Wil- acknowledge the 2015) merely' Su- should not n.6 son, preme Court’s directives ineffectiveness J., concurring part.and dissenting them and find (“[I]t analysis actually but follow part) will never be known whether have been effective all but the reviewing of cases. rarest A court’s mere
disagreement strategy- with counsel's trial
does not render counsel’s inef- assistance
fective; only is a presumption there
reasonableness, but due deference and due
consideration the circumstances of the given, also should be
case and wide of what “reasonable”
latitude constitutes. view, applied. my
should after re-
viewing transcript the trial and motion
hearing transcript, Hoeber has not over- presumption
come the trial counsel reasonably
acted because counsel’s conduct range
“falls within the wide of reasonable assistance;
professional is ...
challenged ‘might action be considered Strickland,
sound trial strategy.’” (emphasis
U.S. at
ed). Í, therefore, dissent, I and would
subject Hoeber to risk of additional
charges.
PROTECT CONSUMERS’ TO ACCESS
QUALITY COALITION, HOME CARE Pellham, Appellants,
LLC and Elisa Secretary KANDER,
Jason State Galloway,
Missouri Nicole R. Missouri, Respon Auditor
State
dents.
WD 79100 of Appeals,
Missouri Court
Western District.
OPINION FILED: November Rehearing
Motion for Transfer and/or Supreme Court Denie d
December notes (Mo.App.2013), right constitutional a unani- 399 S.W.3d defendant’s “Celis-Garcia not establish acts case.-” did mous so, doing Court criminal a unanimous at 158. In defendants verdict, judicial deci should have and was not the first found that the modification recognize imprecisely drafted mandatory multiple acts cases and sion to been violate this consti could be distin- verdict directors could separate offenses right.” At the time of Mr. Hoe- of time or other char- tutional guished 'on the basis . trial, it law place in ber’s was well-established acteristics besides making that “the verdict must likely the Missouri that Mr. more'