CURTIS SHORE v. STATE OF MISSOURI , 2014 Mo. App. LEXIS 1169 ( 2014 )

CURTIS SHORE, )
)
Appellant, )
)
vs. ) No. SD33021
) Filed: October 17, 2014
STATE OF MISSOURI, )
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY
Honorable Kenneth M. Hayden, Circuit Judge
AFFIRMED
Curtis Shore (“Shore”) appeals the motion court’s denial of his Rule 29.151 motion,
following an evidentiary hearing, on the basis the motion court clearly erred in denying his claim
of ineffective assistance of trial counsel. We affirm the judgment of the motion court.
1
Unless otherwise specified, all rule references are to Missouri Court Rules (2013).
Factual and Procedural Background
We set forth only those facts necessary to complete our review. In doing so, we view the
evidence in the light most favorable to the motion court’s judgment. McCauley v. State, 380
S.W.3d 657, 659 (Mo.App. S.D. 2012).
Shore was tried before a jury on September 14 through 17, 2009, and was found guilty of
the class A felony of murder in the first degree (Count I), pursuant to section 565.020, and the
class A felony of armed criminal action (Count II), pursuant to section 571.015.2 Shore was
sentenced to life without parole on Count I, and to 30 years’ imprisonment on Count II, to run
consecutive to Count I. This Court affirmed Shore’s conviction and sentence on direct appeal in
State v. Shore, 344 S.W.3d 292, 294 (Mo.App. S.D. 2011). Additional facts detailing Shore’s
offenses are recited there.
On November 14, 2011, with the assistance of counsel, Shore filed a post-conviction
motion. Among the claims asserted in the motion, Shore alleged that his trial counsel, Daniel
Hunt (“attorney Hunt”) and attorney Darrell Deputy (“attorney Deputy”),3 were ineffective for
“failing to hire a mental health expert to examine [Shore] for the defense of not guilty by reason
of mental disease or defect” (Ground 5), and “failing to produce evidence of [Shore]’s weakened
condition and state of mind due to his September 2005 stroke[,]” as this evidence would have
been useful “to negate the elements of murder or demonstrate the required fear element for self-
defense” (Ground 7).
On January 8 and July 2, 2013, the motion court held an evidentiary hearing. Shore’s
attorney advised the motion court that Shore intended to abandon all but two of his claims, and
2
All references to statutes are to RSMo 2000, unless otherwise indicated.
3
Referred to collectively as “trial counsel.”
2
that he intended to proceed only “on grounds 5 and 7,” addressing Shore’s contentions he was
not “guilty by reason of insanity and diminished capacity and the general allegations of self-
defense as they may relate to his diminished capacity only[.]”
At the hearing, Daniel Mizell (“attorney Mizell”) testified that he practiced law with
attorney Deputy at the time attorney Deputy’s firm was defending Shore. Attorney Mizell, upon
direction of attorney Deputy, obtained and reviewed Shore’s Social Security disability file and
medical records for the purpose of investigating a possible diminished capacity defense.
Attorney Mizell contacted Dr. Dale Halfaker (“Dr. Halfaker”),4 a neuropsychologist who had
examined Shore in the past, to determine if he would serve as an expert witness.
At attorney Mizell’s request, Dr. Halfaker reviewed Shore’s medical records and then had
a telephone conference with attorney Mizell. Attorney Mizell discovered that Dr. Halfaker’s
associate, Dr. Steven Akeson (“Dr. Akeson”), performed cognitive testing of Shore for Shore’s
Social Security disability claim and wrote a consultative report approximately six months before
the murder. In his report, Dr. Akeson concluded that Shore appeared to have an
‘underlying personality disorder with narcissistic and possibly antisocial traits
present,’ that he did ‘appear to have a degree of depression,’ that . . . ‘his
cognitive skills appear[ed] generally intact,’ and that there did not appear to be
‘enough evidence of cognitive decline to warrant a vascular dementia diagnosis.’
Dr. Akeson did make a ‘provisional diagnosis of cognitive disorder’ not otherwise
specific ‘due to some problems with attention and mental control, relative to his
reported premorbid functioning.
Dr. Akeson’s diagnosis was that [Shore] was depressed, had a non-specific
cognitive disorder, abused alcohol and had a personality disorder with narcissistic
and antisocial traits.[5]
4
The record on appeal also refers to Dr. Halfaker as “Dr. Huffaker.”
5
Dr. Akeson’s report was not made part of the record on this appeal. We rely on the trial court’s recitation of the
report’s contents as set forth in the judgment, findings of fact, and conclusions of law.
3
Attorney Mizell found Dr. Akeson’s report to be relevant and used it in evaluating a
diminished capacity defense.
Although attorney Mizell requested both Drs. Halfaker and Akeson assist in Shore’s
defense, both indicated they could not be of assistance and declined to help.
Attorneys Mizell and Deputy discussed Shore’s medical records and the possibility of
presenting a defense of self-defense and diminished capacity at trial. Attorneys Mizell and
Deputy involved Shore in the trial strategy decision-making process by meeting with him in jail
and discussing the diminished capacity defense. “Shore was adamant that [trial counsel] would
pursue a castle doctrine defense6 in this case,” and it was clear “that’s the defense that he wanted
to pursue.” Further, in attorney Mizell’s view, the two defenses were inconsistent because “to
form the belief -- a reasonable belief that someone is threatening your home, you’d need to
understand that and appreciate it. . . . [I]f you’re arguing that your capacity to understand and
believe is diminished [that] would seem to be inconsistent.”
In a letter dated May 13, 2008, attorney Mizell formally advised Shore that he had
contacted Drs. Akeson and Halfaker and that neither were willing to participate as an expert
witness in Shore’s defense, and both indicated they had scheduling conflicts. Attorney Mizell
further wrote that if Shore and attorney Deputy “intend to pursue diminished capacity, we will
need to retain another physician to examine you and testify as to your mental state.”
6
Section 563.036, known as the “castle doctrine” provided:
A person may use deadly force . . . [w]hen entry into the premises is made or attempted in a
violent and tumultuous manner, surreptitiously, or by stealth, and he reasonably believes that the
entry is attempted or made for the purpose of assaulting or offering physical violence to any
person or being in the premises and he reasonably believes that force is necessary to prevent the
commission of a felony.
§ 563.036.2(3), RSMo (2000). We note that section 563.036 was repealed in 2007 and renumbered 563.041.
Shore’s offense occurred in January 2007, therefore section 563.036 is the applicable version of the statute.
4
Shore then became dissatisfied with attorney Mizell’s involvement in his case and
attorney Hunt was hired as substitute counsel. On May 29, 2008, sixteen days after attorney
Mizell’s letter to Shore, attorney Deputy sought a continuance for the purpose of seeking
“additional psychological testing to determine [Shore’s] competence to proceed.” On June 2,
2008, the trial court granted the request for continuance.
On June 27, 2008, Shore wrote a letter to attorney Hunt. In that letter, Shore wrote: “a
neurologist would be more able to discuss the eight principals of temporal lobe damage with a
jury than a psychologist. Any luck finding a doctor to testify?” The record is silent as to any
response to this inquiry.
Shore’s sole witness at the evidentiary hearing was Dr. William Logan (“Dr. Logan”), a
licensed medical doctor and psychiatrist. Dr. Logan’s testimony and written opinion was that
Shore suffered from a mental disease or defect and that such disease or defect would have
diminished Shore’s capacity to appreciate the wrongfulness of his behavior and caused
judgmental errors.
On October 2, 2013, the motion court denied Shore’s post-conviction motion. The
motion court concluded that:
● [T]here was no evidence presented by [Shore] as required by Section
552.020.3 that [Shore] ‘did not know or appreciate the nature, quality or
wrongfulness of such accused’s conduct or as a result of mental disease or
defect was incapable of conforming such accused’s conduct to the
requirements of the law at the time of the offense.’
● There is insufficient evidence presented by [Shore] to establish a
reasonable probability that the result of the proceeding would have been
different had [Shore]’s attorneys hired a mental health expert to examine
[Shore] for the purpose of pursuing a defense of not guilty by reason of
mental disease or defect.
5
● Attorney Mizell did obtain medical records and a previous
neuropsychological consultation with a diagnosis done 6 months BEFORE
[Shore] shot and killed [victim] and much closer in time to the stroke
mentioned as a cause for [Shore]’s mental defect.
● Attorney Mizell did communicate with Dr. Halfaker[, and learned] . . . that
[Shore] had issues with alcohol and antisocial behaviors but neither Dr.
Halfaker or Dr. Akeson would testify that [those behaviors] rose to the
level of mental disease or defect sufficient to provide for mitigation or a
defense of not guilty but [sic] reason of a mental disease or defect.
● [T]here is ample evidence to show that given what [a]ttorneys Mizell and
Deputy had gleaned from Dr. Akeson’s findings, knowing the
requirements for making a self-defense claim and considering the
difficulty of asserting a self-defense claim and a mitigation claim and
considering the ultimate ramifications of a mitigation defense and a not
guilty by reason of mental disease or defect, the failure to continue to
pursue such other defenses did not amount to a failure to exercise the
customary skill and diligence that a reasonably competent attorney would
exercise under similar circumstances.
● There is insufficient evidence presented by [Shore] to establish a
reasonable probability that the result of the proceeding would have been
different. . . . Dr. Logan’s opinion relied heavily on a narrative provided
by [Shore] that was substantially different from [Shore]’s testimony at trial
and inherently unreliable. Dr. Logan’s conclusions are therefore
unreliable.
● A thorough review of the trial transcript containing [Shore’s] testimony
shows that [Shore] was lucid and detailed. . . . [Shore] described events
with particularity[, and that h]is description of the shooting shows his
actions were rational and deliberate, not impulsive or reactionary.
● [Shore’s] letter he wrote to attorney [Mizell] . . . show[ed Shore] to be
calculating and in command of the issues involved in his case.
● [Shore] clearly chose to pursue a defense of self-defense. It is clear from
the record [Shore] felt he was justified in shooting and killing [victim].
● Evidence of [Shore]’s deficits were introduced at trial[, and Shore]
testified about the effects [of] his stroke. The clear strategy at trial as
revealed by the trial transcript was a unified theory of defense based upon
self-defense – which was the only defense that would completely absolve
[Shore] of guilt without a consequence of commitment or incarceration. A
6
review of all the evidence in the case shows this to be consistent with
[a]ttorney Mizell’s testimony that Shore ‘was adamant that we would
pursue a castle doctrine defense in this case’ and that ‘all of the case from
that point was focused upon the castle doctrine defense.’
The motion court concluded that Shore had failed to prove either that trial counsel’s
performance was deficient, or that he was prejudiced in that
[i]nsufficient evidence was presented that would persuade the [c]ourt that actions
of [Shore’s] attorneys, Darrell Deputy, Daniel Mizell or Daniel Hunt failed to rise
to a level of a reasonable competent attorney. There was no evidence presented to
cause this court to overturn [Shore]’s finding of guilt and his sentence and remand
the case for a new trial.
This appeal followed. In his two points relied on,7 Shore alleges the motion court clearly
erred in denying his Rule 29.15 motion for post-conviction relief. As grounds, he asserts the
motion court erred in finding that his trial counsel was not ineffective in failing to adequately
investigate and present an effective defense of diminished capacity, and in concluding that Shore
failed to demonstrate prejudice from the alleged deficient representation.
The issue for our determination is whether the motion court clearly erred in finding that
Shore presented insufficient evidence to show that Shore’s trial counsel was ineffective for
failing to adequately investigate and present the defense of diminished capacity.8
7
We note that Shore’s points relied on do not meet the requirements of Rule 84.04. Compliance with Rule 84.04 is
mandatory, and “[l]ack of compliance with requirements of Rule 84.04 amounts to failure to preserve issues for
appellate review.” State v. Gray, 230 S.W.3d 613, 620 (Mo.App. S.D. 2007) (internal quotation and citation
omitted). We grant review ex gratia, but caution appellate counsel to follow Rule 84.04.
8
We note that Shore’s first point relied on also contends ineffective assistance of counsel on the basis that trial
counsel did not request a jury instruction on the basis of the defense of diminished capacity. At the motion hearing,
Shore abandoned all claims except those enunciated in grounds 5 and 7 in his post-conviction relief motion. Neither
ground asserts failure to request an instruction as a basis for ineffective assistance of counsel. As a result, it is not
preserved for review. Logan v. State, 377 S.W.3d 623, 626 (Mo.App. W.D. 2012).
7
Standard of Review
Our review of the denial of a Rule 29.15 motion is limited to a determination of whether
or not the motion court’s findings of fact and conclusions of law are clearly erroneous. Forrest
v. State, 290 S.W.3d 704, 708 (Mo. banc 2009); Rule 29.15(k). Findings and conclusions are
clearly erroneous if, after a review of the entire record, the court is left with the definite and firm
impression that a mistake has been made. Id. The motion court’s findings are presumptively
correct. Id.; Rule 29.15(i). We defer to the motion court’s credibility determinations. Wilhite v.
State, 339 S.W.3d 573, 576 (Mo.App. W.D. 2011).
Analysis
We combine Shore’s points here for ease of analysis. A convicted defendant must show
two elements to present an ineffective assistance of counsel claim: (1) his counsel’s performance
was so deficient as to fall below an objective standard of reasonableness; and (2) his counsel’s
deficient performance was so serious as to deprive him of a fair trial in that there is a reasonable
probability that without counsel’s errors, the finder of fact would have found a reasonable doubt
with respect to defendant’s guilt. Strickland v. Washington, 466 U.S. 668, 687-89, 695 (1984).
“We may address the Strickland prongs in either order and if one is dispositive, we need not
consider the other.” Cothran v. State, 436 S.W.3d 247, 251 (Mo.App. W.D. 2014). Here, we
find that the motion court’s findings as to trial counsel’s performance are not clearly erroneous in
concluding that counsel’s performance was not so deficient as to fall below an objective standard
of reasonableness, and therefore need not address the prejudice prong under Strickland.
Framing the Strickland test specifically to a defendant’s claim that his counsel was
ineffective because of counsel’s failure to investigate, our Supreme Court has stated that such a
claim “will be successful only if the movant can show: (1) that counsel’s failure to investigate
8
was unreasonable and (2) that the movant was prejudiced as a result of counsel’s unreasonable
failure to investigate.” Barton v. State, 432 S.W.3d 741, 759 (Mo. banc 2014).
As to Shore’s first point—that his counsel was ineffective for failing to investigate and
present a defense based on diminished capacity—the motion court concluded:
[T]here is ample evidence to show that given what [a]ttorneys Mizell and Deputy
had gleaned from Dr. Akeson’s findings, knowing the requirement for making a
self-defense claim and in considering the difficulty of asserting a self-defense and
a mitigation claim and considering the ultimate ramifications of a mitigation
defense and a not guilty by reason of mental disease or defect [defense], the
failure to continue to pursue such other defenses did not amount to a failure to
exercise the customary skill and diligence that a reasonably competent attorney
would exercise under similar circumstances.
“Strategic [decisions] made after a thorough investigation of the law and the facts
relevant to plausible [options] are virtually unchallengeable[.]” Johnson v. State, 406 S.W.3d
892, 900 (Mo. banc 2013) (internal quotation and citation omitted).
The motion court concluded that attorneys Mizell and Deputy performed a thorough
investigation of the law and facts at issue before coming to the strategic decision to present
evidence supporting a defense of self-defense rather than diminished capacity. Attorney Mizell
obtained and reviewed Shore’s Social Security disability file and medical records for the purpose
of investigating a possible diminished capacity defense. He contacted two psychologists, one of
whom had performed cognitive testing and wrote a consultative report regarding Shore’s mental
condition six months before the murder.
Attorney Mizell asked both psychologists to assist in Shore’s case as expert witnesses,
but both refused explaining that they could not assist. As the motion court concluded,
[t]he clear import of [attorney Mizell’s] testimony was that [Shore] had issues
with alcohol and antisocial behaviors but neither Dr. Halfaker or Dr. Akeson
would testify that rose to the level of a mental disease or defect sufficient to
provide for mitigation or a defense of not guilty but [sic] reason of a mental
disease or defect.
9
Attorneys Mizell and Deputy discussed Shore’s medical records and the possibility of
presenting both self-defense and diminished capacity at trial. In attorney Mizell’s opinion, the
two defenses were inconsistent because “to form the belief -- a reasonable belief that someone is
threatening your home, you’d need to understand that and appreciate it.” He continued, “if
you’re arguing that your capacity to understand and believe is diminished [that] would seem to
be inconsistent.” The attorneys consulted with Shore who was adamant they pursue a self-
defense claim to the exclusion of the diminished capacity defense.
Under these circumstances, the motion court could find that reasonable professional
judgment supported the strategic decision to cease further investigation into the diminished
capacity defense. See Strickland, 466 U.S. at 690-91. The motion court did not clearly err in
concluding that trial counsel’s performance in investigating Shore’s diminished capacity defense
did not fall below an objective standard of reasonableness.
Shore also argues that trial counsel was ineffective because they did not introduce
medical records or expert testimony in support of a diminished capacity defense. However, the
motion court specifically found that “the defense of diminished capacity was abandoned in favor
of a defense of self-defense.” “The motion court’s findings of fact and conclusions of law are
presumed correct and deemed clearly erroneous only if, after reviewing the entire record, we are
left with a firm impression that a mistake has been made.” Haidul v. State, 425 S.W.3d 148, 150
(Mo.App. E.D. 2014).
10
We discern no evidence in the record on appeal9 that supports Shore’s argument that the
defense of diminished capacity was presented ineffectively, and not abandoned as the motion
court found. Shore does not “overcome the strong presumption that counsel rendered adequate
assistance, exercising reasonable professional judgment.” Johnson, 406 S.W.3d at 900.
The motion court did not clearly err in failing to conclude that Shore’s trial counsel was
ineffective for failing to present medical records or expert testimony in support of a diminished
capacity defense.
The judgment of the motion court is affirmed.
WILLIAM W. FRANCIS, JR., C.J./P.J. - OPINION AUTHOR
JEFFREY W. BATES, J. - Concurs
DANIEL E. SCOTT, J. - Concurs
9
Shore’s argument relies on Exhibits I, J, and K, which he suggests show trial counsel’s efforts to put at issue
Shore’s mental state at trial. These exhibits and the underlying trial transcript, were not made part of the record on
this appeal, and we must therefore assume the contents of these exhibits are favorable to the motion court’s ruling
and unfavorable to Shore. See State v. Erickson, 404 S.W.3d 394, 396 n.2 (Mo.App. S.D. 2013) (citing Rule
30.04(c)).
11