David R. Hosier v. State of Missouri

SUPREME COURT OF MISSOURI
en banc
DAVID R. HOSIER, ) Opinion issued December 10, 2019
)
Appellant, )
)
v. ) No. SC97231
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STATE OF MISSOURI, )
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
The Honorable Patricia S. Joyce, Judge
David Hosier (“Hosier”) was found guilty of murder in the first degree, armed
criminal action, burglary in the first degree, and unlawful possession of a firearm by a
felon. After the jury unanimously recommended a death sentence on the murder charge,
the trial court sentenced Hosier to death and imposed two additional 15-year sentences
and a seven-year sentence on the armed criminal action, burglary, and unlawful
possession charges, respectively. This Court affirmed Hosier’s convictions on direct
appeal. State v. Hosier, 454 S.W.3d 883, 900 (Mo. banc 2015).
Hosier timely moved for postconviction relief under Rule 29.15. Following an
evidentiary hearing, the motion court denied relief. Hosier appeals, and this Court has
jurisdiction. Mo. Const. art. V, sec. 10; see also Standing Order, June 16, 1988 (effective
July 1, 1988). The judgment of the motion court is affirmed.
Background
Hosier had an affair with Angela Gilpin (“Victim”) while Victim was married to
her husband, Rodney Gilpin. The affair ended, and Victim reconciled with her husband
in August 2009. In September 2009, Hosier broke into Victim’s apartment and shot and
killed Victim and her husband. At the time Victim was killed, her purse contained an
application for a protective order against Hosier, service information indicating she knew
Hosier had a prior criminal record and possessed several firearms, and a third document
stating she was afraid Hosier might shoot her and her husband.
After killing Victim and her husband, Hosier fled to Oklahoma, where he was
taken into custody by local law enforcement. Police recovered from Hosier’s vehicle
15 firearms, numerous forms of ammunition, a bulletproof vest, a crowbar, latex gloves, a
homemade police baton, and a knife. All of the firearms found inside the vehicle were
loaded except for a STEN submachine gun, which was determined to be the murder
weapon. Upon his arrest, Hosier said something to the effect of “shoot me, and get it
over with” or “end it” to police numerous times. In the front seat of Hosier’s vehicle was
a note stating, “If you are going with someone do not lie to them .... Be honest with them
if there is something wrong. If you do not this could happen to you. People do not like
being f* * * * * with, and after so much s* * * they can go off the deep end.” Police also
found a notepad containing a written description of Victim’s vehicle and its license plate.
In the hours leading up to the killings, Hosier called and left several voicemail messages
2
for a woman who knew both him and Victim. In one of these inculpatory messages,
Hosier threatened Victim and stated, “I’m gonna ... finish it .... You don’t believe me.
I’m tired of the s * * *.”
Hosier was indicted in the Cole County circuit court. In the guilt phase, the jury
found Hosier guilty of murder in the first degree, armed criminal action, burglary in the
first degree, and unlawful possession of a firearm by a felon. In the penalty phase, the
state presented evidence of two statutory aggravating circumstances: (1) Hosier had a
serious assaultive conviction in that he was convicted of a battery in Indiana during
which he beat a former girlfriend about the face while she was handcuffed; and (2) the
murder was committed while Hosier engaged in the commission of another unlawful
homicide, i.e., killing Victim’s husband. § 565.032.2(1)-(2). 1 Hosier presented evidence
of three statutory mitigating circumstances: (1) the murder was committed while Hosier
was under the influence of extreme mental or emotional disturbance; (2) the capacity of
Hosier to appreciate the criminality of his conduct or conform his conduct to the
requirements of the law was substantially impaired; and (3) the age of Hosier at the time
of the offense. § 565.032.3(2), (6)-(7). The jury unanimously found the existence of
both statutory aggravating circumstances and unanimously recommended the death
penalty. The court sentenced Hosier to death for murder and imposed two
15-year sentences and a seven-year sentence for the armed criminal action, burglary, and
unlawful possession charges.
1
All statutory references are to RSMo 2000 unless otherwise indicated.
3
After this Court affirmed Hosier’s conviction and sentence on direct appeal,
Hosier, 454 S.W.3d at 900, Hosier timely filed for postconviction relief under Rule
29.15. An evidentiary hearing was held in the Cole County circuit court. The Honorable
Patricia Joyce, who presided over Hosier’s trial, was the motion court judge. The motion
court denied Hosier relief.
Analysis
“This Court reviews a post-conviction relief motion for whether 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); accord Rule 29.15(k). “A judgment is clearly
erroneous when there is a definite and firm impression that a mistake has been made after
reviewing the entire record.” Forrest, 290 S.W.3d at 708 (quotation marks omitted).
“This Court defers to the motion court’s superior opportunity to judge the credibility of
witnesses.” Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016) (quotation marks
omitted).
I. Ineffective Assistance of Counsel
Hosier asserts eight points of error relating to his claims that both trial and
appellate counsel were ineffective. To be entitled to postconviction relief on a claim of
ineffective assistance of counsel, a movant must show by a preponderance of the
evidence that: “(1) his trial counsel failed to exercise the level of skill and diligence that a
reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced
by that failure.” Id. at 905 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
4
If either requirement is not met, a claim of ineffective assistance of counsel must fail.
State v. Clay, 975 S.W.2d 121, 135 (Mo. banc 1998).
A “[m]ovant must overcome the strong presumption that trial counsel’s conduct
was reasonable and effective.” Davis, 486 S.W.3d at 906. “To overcome this
presumption, a movant must identify specific acts or omissions of counsel that, in light of
all the circumstances, fell outside the wide range of professional competent assistance.”
Id. (quotation marks omitted). “Reasonable choices of trial strategy, no matter how ill-
fated they appear in hindsight, cannot serve as a basis for a claim of ineffective
assistance.” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). “Strategic choices
made after a thorough investigation of the law and the facts relevant to plausible opinions
are virtually unchallengeable.” Id. (quotation marks and alterations omitted). “It is not
ineffective assistance of counsel to pursue one reasonable trial strategy to the exclusion
of another reasonable trial strategy.” Id.
“Prejudice occurs when there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Davis,
486 S.W.3d at 906 (quotation marks omitted). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Deck v. State, 68 S.W.3d 418, 426
(Mo. banc 2002) (quotation marks omitted). In the penalty phase of a capital murder
case, prejudice is “a reasonable probability that, but for counsel’s deficient performance,
the jury would have concluded the balance of aggravating and mitigating circumstances
did not warrant death.” Davis, 486 S.W.3d at 906 (quotation marks omitted).
5
A. Unlawful Possession of a Firearm by a Felon Count
Hosier asserts three points of error relating to his conviction on the charge of
unlawful possession of a firearm by a felon. This charge was predicated on Hosier’s
1993 felony conviction in Indiana for battery. There, Hosier’s former girlfriend, Nancy
Marshall, had asked Hosier to move out of her house and had obtained an order of
protection against Hosier. This order was rescinded, however, and Marshall allowed
Hosier to continue to stay in her home. Subsequently, Hosier grabbed Marshall, took her
to the basement, handcuffed her, and beat her until she lost consciousness. Marshall was
taken to the hospital with a concussion and bruises on her face. Hosier was charged with,
and pleaded guilty to, the felony of battery and was sentenced to eight years’
imprisonment. The court’s judgment stated, “[Hosier] is remanded to the custody of the
sheriff. [Hosier] is given 36 days jail time-good time credit. Court recommends [Hosier]
be given psychiatric treatment.”
Before trial in his Missouri case, Marshall was listed on the witness list and she
testified during the penalty phase. She did not testify, however, during the guilt phase.
Because defense counsel chose not to stipulate to the fact that Hosier had been convicted
of felony battery in Indiana in 1993, a copy of the judgment and related documents were
received in evidence and shown to the jury. These documents showed the circumstances
surrounding the conviction, as well as the court’s recommendation that Hosier receive
psychiatric treatment.
6
1. Failure to Stipulate to the Prior Felony Conviction
Hosier argues trial counsel was ineffective for failing to stipulate to the prior
felony conviction, which – under Old Chief v. United States, 519 U.S. 172 (1997) –
would have prevented the jury from hearing the name and surrounding circumstances of
the conviction underlying the felon-in-possession charge during the guilt phase of the
trial. The state was willing to stipulate to the 1993 Indiana felony, but defense counsel
declined to do so. As a result, the state was allowed to introduce during the guilt phase
documents showing both the fact of the 1993 conviction and the circumstances
surrounding that conviction. Hosier argues this evidence was highly prejudicial because
the facts underlying that conviction involved a violent assault of a former romantic
partner and Hosier was on trial for murdering another former romantic partner. Hosier
asserts there was no strategic reason for counsel not to stipulate to the 1993 felony
conviction and every reason to do so in order to keep this information from the jury
during the guilt phase as required by Old Chief.
At trial, Hosier was represented by Counsel Don Catlett, who previously had tried
nine capital cases as a criminal defense attorney, and Counsel Janice Zembles, who had
worked as the District Defender in the capital trial office of the Missouri Public Defender
for 13 years. At the evidentiary hearing, Counsel Zembles testified that, although the
prosecutor was willing to stipulate to the prior felony conviction, she did not enter into a
stipulation because she did not want the jury to be surprised about the facts of the 1993
conviction when it inevitably learned of them during the penalty phase. Counsel Zembles
testified that, in her experience, jurors in death penalty cases responded negatively to
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information introduced during the penalty phase that they believe had been withheld from
them during the guilt phase. Counsel Zembles believed Marshall would testify at the
penalty phase because her name was on the witness list and was in a position to offer
relevant and admissible evidence concerning the 1993 conviction. On balance, Counsel
Zembles believed the mitigating nature of the language in the 1993 judgment
recommending psychiatric treatment outweighed any prejudice that would ensue from the
state offering that judgment into evidence.
The motion court found defense counsel’s decision not to stipulate to the fact of
the 1993 Indiana conviction in the guilt phase to preclude angering the jury in the penalty
phase when it inevitably learned of the circumstances surrounding that conviction was a
reasonable trial strategy. This finding is not clearly erroneous. 2
2
The motion court did make the erroneous finding that counsel’s strategy not to stipulate was
reasonable so counsel could argue the conviction only resulted in a suspended imposition of
sentence. This finding is clearly erroneous because the record is devoid of any support for it.
Instead, it is clear the Indiana conviction did not result in a suspended imposition of sentence. It
appears this finding was first suggested to the motion court in the state’s proposed findings,
which the motion court adopted wholesale. This Court has held the process by which a court
adopts a party’s proposed findings of fact raises no constitutional problems so long as the court
actually makes the findings proposed after independent review. Skillicorn v. State, 22 S.W.3d
678, 690 (Mo. banc 2000). Of course, like any other findings, these findings of facts must also
be supported by the evidence to be affirmed on appeal. Id. Accordingly, adopting a proposed
finding that is not supported (and, in fact, is contradicted by) the evidence wastes judicial
resources and strongly demonstrates why the practice of wholesale adoption of a party’s
proposed findings is discouraged. See, e.g., Neal v. Neal, 281 S.W.3d 330, 337-38 (Mo. App.
2009). Nevertheless, “[a] trial court judgment will be affirmed if cognizable under any theory,
regardless of whether the reasons advanced by the trial court are wrong or not sufficient.” Am.
Eagle Waste Indus., LLC v. St. Louis Cnty., 379 S.W.3d 813, 829 (Mo. banc 2012). Here,
because the motion court’s other, independent finding that counsel had a strategic reason for not
stipulating to the 1993 Indiana conviction was not clearly erroneous, this Court must affirm the
motion court’s decision to deny postconviction relief on this first claim.
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Counsel Zembles reasonably believed that there would likely be a penalty phase of
the trial – i.e., she believed Hosier likely would be found guilty of first-degree murder –
and that Marshall would testify about the circumstances surrounding the 1993 Indiana
conviction during that penalty phase. Her experience with juries learning in a penalty
phase facts that they believed had been withheld from them in the guilt phase informed
her strategic decision to get the facts surrounding the 1993 Indiana conviction out sooner
rather than later. This was a reasonable trial strategy for defense counsel to make in light
of the facts and circumstances as they appeared to her at the time this decision was made.
Hosier contends Old Chief stands for the proposition that defense counsel must
stipulate to a prior conviction whenever possible; therefore, the motion court erred as a
matter of law. This is incorrect. Old Chief held a trial court abuses its discretion by not
accepting a defendant’s offer to stipulate to the fact of a prior conviction when the name
and nature of the conviction raises the risk of unfair prejudice. Old Chief, 519 U.S. at
174. But nowhere does this case, or any other, impose a duty on a criminal defendant’s
counsel to stipulate to a past felony notwithstanding defense counsel’s reasonable trial
strategy to the contrary. Similarly, nothing in MAI-CR 3d 331.28, which adopted the
reasoning of Old Chief, imposes such a duty. Instead, MAI-CR 3d 331.28 states, in the
context of a charge for felon in possession of a firearm: “If the defense is willing to
stipulate that the defendant has a prior felony conviction, the conviction should not be
named.” [Emphasis added.] Accordingly, under Old Chief and MAI-CR 3d 331.28,
whether defense counsel stipulates to a prior conviction is a matter of trial strategy.
9
Even if Hosier had been able to show that defense counsel’s performance was
constitutionally defective for failing to stipulate to the 1993 Indiana felony, his
ineffective assistance claim would fail, nevertheless, because Hosier failed to show any
prejudice resulted. Hosier argues the evidence relating to the prior felony conviction
allowed the jury to make an improper inference that he had a propensity for violence such
as that which resulted in Victim’s death. He argues allowing the jury to hear this
evidence was especially damaging because the case against him rested entirely on
circumstantial evidence. These arguments fail for two reasons. First, the Court is not
convinced – based on nothing other than Hosier’s speculation – that the jury made an
improper use of evidence concerning the 1993 conviction (i.e., propensity) rather than a
proper use of that evidence. Second, the Court is not convinced the trial record supports
a reasonable likelihood that the jury would not have found Hosier guilty of first-degree
murder if they had heard only that Hosier had been convicted previously of an
unspecified and unexplained felony. Instead, the record shows the jury’s guilty verdict
was supported by a wide range of inculpatory evidence, including evidence regarding
Hosier’s past relationship with Victim, Victim’s fear that Hosier might kill or harm her
and her husband, Victim’s application for an order of protection against Hosier based on
those fears, Hosier’s flight shortly after the killings, Hosier’s many inculpatory
statements (including a note explaining his motive found in his vehicle), and the arsenal
of weapons (including one determined to be the murder weapon) found in his possession
at the time he was arrested. Extracting from this considerable array of evidence the
circumstances surrounding Hosier’s 1993 Indiana conviction falls well short of creating a
10
reasonable probability that he would not have been found guilty on the first-degree
murder charge.
2. Failure to File a Written Motion to Sever the Unlawful Possession of a
Firearm by a Felon Count
Hosier argues trial counsel was ineffective for failing to make a proper motion to
sever the felon-in-possession charge prior to trial. Trial counsel made an oral motion to
sever but failed to file a written motion as required by Rule 24.07(a). The trial court
overruled the oral motion to sever.
At the evidentiary hearing on Hosier’s motion for postconviction relief, Counsel
Catlett testified he was unaware he was required to file a written motion for severance,
and both he and and Counsel Zembles testified they had no strategic reason for failing to
file a written motion to sever. Nevertheless, Counsel Catlett admitted he knew Hosier –
as a prior offender – was not entitled to severance under section 565.004.3, which allows
for a prior offender in a first-degree murder case to be tried for multiple offenses that are
lawfully joined.
The motion court found counsel was not ineffective for failing to file a written
motion on the ground that there was no prejudice because, sitting as the trial court judge,
she would have overruled a written motion had such a motion been filed. This finding is
not clearly erroneous.
There is no question motions to sever must be made in writing. Rule 24.07
provides:
When a defendant is charged with more than one offense in the same
indictment or information, the offenses shall be tried jointly unless the court
11
orders an offense to be tried separately. An offense shall be ordered to be
tried separately only if: (a) A party files a written motion requesting a
separate trial of the offense; (b) A party makes a particularized showing of
substantial prejudice if the offense is not tried separately; and (c) The court
finds the existence of a bias or discrimination against the party that requires
a separate trial of the offense.
Even a written motion to sever is not a matter of right in all cases. Instead, severance is a
matter committed to the sound discretion of the trial court. State v. McKinney, 314
S.W.3d 339, 342 (Mo. banc 2010). In addition, when a defendant faces trial on multiple
charges including a first-degree murder charge, section 565.004.3 provides in relevant
part:
When a defendant has been charged and proven before trial to be a prior
offender pursuant to chapter 558 so that the judge shall assess punishment
and not a jury for an offense other than murder in the first degree, that
offense may be tried and submitted to the trier together with any murder in
the first degree charge with which it is lawfully joined.
Because Hosier was found to be a prior offender as a result of his Indiana felony
conviction, joinder of the felon-in-possession charge with the first-degree murder charge
was permissible under section 565.004.3. As a result, Rule 24.07 requires the written
motion to sever to make “a particularized showing of substantial prejudice if the offense
is not tried separately” and the trial court must make a finding that a bias or
discrimination against a party exists that requires the severance and a separate trial.
At the evidentiary hearing on Hosier’s postconviction relief motion, Hosier failed
to show that – even in the improper oral motion – defense counsel made (or even could
have made) a “particularized showing of substantial prejudice[.]” More important,
Hosier failed to show that the trial court would have made a finding sufficient to grant a
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proper severance motion (assuming one had been made) because Judge Joyce, the motion
court judge, found she considered the oral motion to sever while sitting as the trial court
and overruled it. Accordingly, even if defense counsel had filed a written motion to
sever, it would have been overruled just as the oral motion to sever was.
Finally, even if a constitutionally competent defense counsel could have gotten the
felon-in-possession charge severed, Hosier did not show that counsel’s failure to do so
undermines the Court’s confidence in the outcome of the guilt phase by showing there is
a reasonable probability that the outcome of his trial would have been different. See
Deck, 68 S.W.3d at 426. Hosier’s theory is that he was unfairly prejudiced when the
evidence of all 15 weapons and related ammunition was admitted in his trial, because – if
counsel would have gotten the trial court to sever the felon-in-possession charge – at
most only the murder weapon would have been admitted. This argument fails because
this Court already has held otherwise.
In his direct appeal, this Court rejected Hosier’s argument it was error to admit all
of the weapons evidence. Hosier, 454 S.W.3d at 895-96. In doing so, this Court did not
hold that evidence of those weapons other than the murder weapon were properly
admitted because it was relevant to the felon-in-possession charge. Instead, this Court
held that all of the weapons evidence (i.e., relating to the murder weapon as well as the
14 other weapons) was properly admitted to prove the murder charge because evidence of
his flight from Oklahoma to Missouri, including the circumstances surrounding his arrest
in Oklahoma (which includes all the weapons found in his car), was relevant to show
consciousness of guilt on that murder charge. Id. at 896.
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In this case, the 14 guns and ammunition that were not alleged to have been
used to commit the murder were logically relevant because they were found
in Defendant’s car during his flight from Jefferson City directly after the
murders. Evidence of flight is admissible to show consciousness of guilt.
See State v. Johns, 34 S.W.3d 93, 112 (Mo. banc 2000). Moreover, “the
methodology of ... flight is probative as to the quality and depth of this
consciousness.” Id. (finding evidence that defendant held someone
hostage when confronted by police was admissible in a murder trial in
which the victim was not also the hostage). The fact that Defendant left
Jefferson City right after the murders occurred and did so armed with 14
other guns and ammunition was probative of his guilt.
Defendant argues that the evidence was inadmissible because its prejudicial
effect outweighed its probative value. He relies on a line of cases that stand
for the principle that “weapons unconnected with either the accused or the
offense for which he is standing trial lack any probative value and their
admission into evidence is inherently prejudicial.” See, e.g., State v. Grant,
810 S.W.2d 591, 592 (Mo. App. 1991).
These cases, however, are distinguishable from the instant case because the
weapons and ammunition were directly connected to Defendant and the
first-degree murder charge. They were found in his possession shortly after
the murders took place. Cf. State v. Krebs, 341 Mo. 58, 106 S.W.2d 428,
429 (1937) (a gun found on defendant that was unlike the weapon involved
in the crime was inadmissible when defendant was arrested two months
after the incident). Defendant was the only passenger in the car and did not
claim they belonged to someone else. Cf. State v. Perry, 689 S.W.2d 123,
124-25 (Mo. App. 1985) (gun was inadmissible when it was unlike the one
used in the crime and it was found in a car that defendant borrowed from
his mother and was riding in as a passenger). Additionally, the weapons
and ammunition were related to the crime charged because they were part
of his direct flight from the crime scene and tended to show a
consciousness of guilt. Cf. State v. Holbert, 416 S.W.2d 129, 132-33
(Mo.1967) (when defendant was charged with carrying a concealed
weapon, evidence of two other guns unrelated to the charge were
inadmissible).
The 14 other weapons and ammunition were highly probative to show
consciousness of guilt. Further, any prejudicial effect they would have had
was minimized by admitting only photographs of the evidence, not the guns
and ammunition themselves. Additionally, numerous other weapons that
were found in Defendant’s apartment and storage shed were introduced at
trial, eliminating any prejudicial value of the weapons from his car. Any
prejudicial effect the photographs may have had did not outweigh the
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probative value of the evidence. It was not an abuse of discretion to admit
them.
Hosier, 454 S.W.3d at 895-96 (footnote omitted).
Accordingly, even if defense counsel had persuaded the trial court to sever the
felon-in-possession charge, the evidence of these firearms could – and likely would –
have been admitted anyway. For this additional reason, the motion court did not clearly
err in denying Hosier’s claim.
3. Appellate Counsel’s Failure to Appeal Trial Court’s Denial of Severance
Hosier concedes trial counsel failed to preserve for appeal the trial court’s failure
to sever the felon-in-possession charge. Hosier claims, however, that appellate counsel
was ineffective for failing to raise the denial of severance as a plain error claim. Hosier
was represented on appeal by an appellate counsel who testified at the evidentiary
hearing he had been a public defender for more than 30 years.
“The standard for reviewing a claim of ineffective appellate counsel is essentially
the same as that employed with trial counsel; movant is expected to show both a breach
of duty and resulting prejudice.” Storey v. State, 175 S.W.3d 116, 148 (Mo. banc 2005)
(quotation marks omitted). “There is no duty to raise every possible issue asserted in the
motion for new trial on appeal, and no duty to present non-frivolous issues where
appellate counsel strategically decides to winnow out arguments in favor of other
arguments.” Id. (quotation marks and alteration omitted). “Relief from appellate
ineffectiveness requires that the error not raised be so substantial as to amount to a
manifest injustice or a miscarriage of justice.” Id. (quotation marks omitted).
15
Here, the motion court found the appellate counsel made a reasoned strategic
decision not to seek plain error review of the failure to sever claim. The motion court
further found there was no prejudice to Hosier. These findings are not clearly erroneous.
In fashioning Hosier’s appellate strategy, his appellate counsel made a decision to
focus on the admissibility of certain pieces of evidence, especially the admissibility of all
the firearms in Hosier’s possession when he was arrested, see Hosier, 454 S.W.3d at 891-
96, rather than seek plain error review of the trial court’s decision to overrule an oral
motion to sever. Appellate counsel is not ineffective for making a reasoned strategic
decision to favor one appellate claim over another related to the same issue. As
explained above, there could have been no prejudice from the failure to sever the felon-
in-possession charge if all of the firearm evidence would have been admissible
nevertheless to prove the first-degree murder charge. Accordingly, the decision by
Hosier’s appellate counsel to challenge the admissibility of the firearms evidence as he
did was not unreasonable.
Moreover, Hosier wholly failed to show any prejudice from his appellate counsel’s
decision not to seek plain error review of the trial court’s denial of defense counsel’s oral
motion to sever. “Whether to grant severance is a decision left to the trial court’s sound
discretion.” McKinney, 314 S.W.3d at 342. “The trial court’s decision overruling [a
defendant’s] motion to sever will be reversed if the trial court abused its discretion in
overruling the motion and if there was a clear showing of prejudice.” Id. In this case,
appealing the trial court’s failure to sever the charge of unlawful possession of a firearm
by a felon on plain error review would not have been meritorious because the charges
16
were properly joined under section 565.004.3 and counsel did not properly request they
be severed pursuant to Rule 24.07. Failing to raise a nonmeritorious claim on appeal
does not constitute ineffective assistance. Glover v. State, 225 S.W.3d 425, 429 (Mo.
banc 2007). Because Hosier cannot demonstrate a reasonable probability the outcome of
his direct appeal would have been different had this issue been appealed on plain error
review, Hosier’s ineffective assistance of appellate counsel claim must fail.
B. Counsel’s Failure to Call a Medical Expert in the Penalty Phase
Hosier claims defense counsel were ineffective for introducing medical records
regarding his mental health history into evidence in the penalty phase without calling an
expert witness to interpret those records for the jury. One record was the result of
Hosier’s 96-hour involuntary commitment in Fulton State Hospital in 1986 after he struck
his ex-wife in the face in front of his young children. This record indicated Hosier had
been diagnosed with recurrent depression. The other record was from Audrain Medical
Center in 2007 and showed Hosier recently had suffered a transient ischemic attack. 3 At
the evidentiary hearing, Hosier presented the testimony of Dr. Bruce Harry, the former
clinical director at Fulton State Hospital, who had been retained to perform a general
psychiatric evaluation on Hosier.
3
Dr. Bruce Harry testified at the evidentiary hearing that a transient ischemic attack is a
temporary decrease in blood flow and consequent loss of oxygen and glucose to part of the brain,
with the resulting symptoms resembling those of a stroke.
17
1. Failure to Call a Psychiatrist in the Penalty Phase
Hosier claims defense counsel were constitutionally ineffective because their
decision not to call an expert to interpret the 1986 Fulton State Hospital records and the
2007 Audrain Medical Center records for the jury accounts for the failure of the statutory
mitigating circumstances he submitted, i.e., that the murder was committed while Hosier
was under the influence of extreme mental or emotional disturbance and that Hosier’s
capacity to appreciate the criminality of his conduct or conform his conduct to the
requirements of the law was substantially impaired. See § 565.032.3(2), (6). The motion
court rejected this ineffective assistance claim because there is no reasonable likelihood
that an expert would have altered the outcome of the penalty phase. This finding is not
clearly erroneous.
“Counsel’s decision not to call a witness is presumptively a matter of trial strategy
and will not support a claim of ineffective assistance of counsel unless the defendant
clearly establishes otherwise.” Deck v. State, 381 S.W.3d 339, 346 (Mo. banc 2012).
“As a matter of trial strategy, the determination to not call a witness is virtually
unchallengeable.” Worthington v. State, 166 S.W.3d 566, 577 (Mo. banc 2005). “If a
potential witness’s testimony would not unqualifiedly support a defendant, the failure to
call such a witness does not constitute ineffective assistance.” Id. (quotation marks
omitted). Instead, to prevail on a claim of ineffective assistance of counsel for failure to
call a witness, a movant must show: “(1) counsel knew or should have known of the
existence of the witness; (2) the witness could be located through reasonable
investigation; (3) the witness would testify; and (4) the witness’s testimony would have
18
produced a viable defense.” Deck, 381 S.W.3d at 346. In the penalty phase of a capital
case, a viable defense “is one in which there is a reasonable probability that the additional
mitigating evidence th[e] witness[] would have provided would have outweighed the
aggravating evidence presented by the prosecutor resulting in the jury voting against the
death penalty.” Id. (footnote omitted).
Here, the motion court found there was no reason to believe that calling an expert
to explain these medical records would have resulted in a “viable defense” otherwise
unavailable to Hosier, and this finding is amply supported by the record. First, defense
counsel were able to present Hosier’s mental health defense at the penalty stage without a
medical expert. Hosier’s mother testified via video deposition regarding Hosier’s father
being killed in the line of duty when Hosier was a teenager and Hosier’s subsequent
troubles. A retired Jefferson City police officer, among others, testified regarding the
1986 incident that resulted in the 96-hour involuntary commitment to Fulton State
Hospital. And, significantly, defense counsel used the state’s own evidence (i.e., the
Indiana conviction in which the judge recommended Hosier receive psychiatric
treatment) to present their mitigation theory to the jury. With no showing that any
helpful parts of the 1986 and 2007 medical records were beyond the understanding of the
jury without an expert to explain them, defense counsel’s decision to present their mental
health mitigation theories without an expert was reasonable trial strategy.
19
C. Counsel’s Failure to Strike Jurors
Hosier claims defense counsel were constitutionally ineffective for failing to move
to strike two jurors from the venire panel. 4 In voire dire, defense counsel utilized juror
questionnaires that asked venirepersons to rank their opinion of the death penalty from
“one” (strongly opposed) to “seven” (strongly in favor). The questionnaire also asked the
venirepersons to describe in detail their opinions and beliefs about the death penalty for a
person found to have committed two deliberate first-degree murders. Defense counsel
employed a jury consultant to help interpret these surveys and assign individual rankings
to the venirepersons based on their desirability for the defense. At the evidentiary
hearing, Counsel Zembles testified the defense was looking for those venirepersons who
answered the question regarding the death penalty with a “four” or a “five” because she
believed those who answered with a “one” would never make it on the jury and those
who answered with a “two” or “three” likely would not make it on the jury.
1. Failure to Strike Juror R.M.
First, Hosier argues defense counsel was ineffective for failing to move to strike
Juror R.M. because he was realistically unable to consider a punishment other than death.
The motion court denied this claim, and its findings were not clearly erroneous.
4
On appeal, Hosier’s points relied on fail to state expressly whether he is claiming defense
counsel were ineffective for failing to move to strike Juror R.M. and Juror M.O. for cause or for
failing to use the defense’s peremptory strikes to remove them from the venire. Nevertheless,
the gravamen of these points suggest it is the former because Hosier argues Juror R.M. and Juror
M.O. were unfit to serve in that they “could not realistically consider life.” This seems to focus
on Juror R.M.’s and Juror M.O.’s fitness to serve rather than on the virtually unassailable
strategic decision as to which otherwise proper members of the venire the defense should
exercise its peremptory strikes. Accordingly, the Court will review Hosier’s claims as asserting
the former argument and not the latter.
20
Juror R.M. indicated a numerical bias toward the death penalty of “seven,”
meaning he was strongly in favor of the death penalty. In explaining his belief about the
death penalty, however, Juror R.M. was more equivocal. He wrote: “I believe in the
death penalty for a person who commits murder but I feel you would have to know the
circumstances that drove them to this.” Concerning life without parole, Juror R.M.
wrote: “[L]ife in prison doesn’t seem like a fair sentence to me but again you would have
to know the circumstances of the case.” Finally, Juror R.M. testified that his nephew had
committed an armed robbery.
After evaluating Juror R.M.’s responses to the questionnaire and voire dire,
defense counsel decided not to challenge him because they categorized Juror R.M. as a
“wagon joiner,” meaning he would likely go along with the rest of the jury. Weighing in
his favor (in the defense’s eyes), Juror R.M. testified he could meaningfully consider a
sentence of life without parole, he would not hold it against Hosier if Hosier did not
testify, and he knew the burden was entirely on the state.
Unless a juror is unqualified to serve such that allowing him or her to serve
constitutes structural error (which Hosier does not claim), the decision whether to
challenge a juror is ordinarily a matter of trial strategy, which need only be reasonable.
See Anderson, 196 S.W.3d at 40. “The qualifications for a prospective juror are not
determined from a single response, but rather from the entire examination.” State v.
Deck, 303 S.W.3d 527, 535 (Mo. banc 2010). “The trial judge evaluates the venire’s
responses and determines whether their views would prevent or substantially impair their
21
performance as jurors (including the ability to follow instructions on the burden of
proof).” Id. (quotation marks and alteration omitted).
The motion court found the decision not to move to strike Juror R.M. was a
reasonable trial strategy. This finding is not clearly erroneous. Juror R.M. demonstrated
he could serve with an open mind, that he would follow the court’s instructions, and that
he could give meaningful consideration to both a sentence of death and a sentence of life
without parole (including that he would be able to sign either verdict if chosen as the
foreperson). Juror R.M. was asked on several occasions whether he could consider life
without parole as a meaningful sentence, and consistently responded that he could. If
Hosier chose not to testify, Juror R.M. testified that he would not “put that on the scales”
for the state and against Hosier. He also said the fact that there was evidence of a second
homicide would not change his mind on whether life without parole could be a
meaningful punishment. Finally, he expressed the opinion that he would have to know
the circumstances of the case before assessing punishment. For these reasons, a motion
to strike Juror R.M. likely would not have succeeded, and defense counsel’s decision not
to challenge him was a reasonable strategy. Anderson, 196 S.W.3d at 40.
Nor does it appear there was any prejudice to Hosier’s decision not to move to
strike Juror R.M. “[A] movant is entitled to a presumption of prejudice resulting from
counsel’s ineffective assistance during the jury selection process only if the movant can
show that a biased venireperson ultimately served on the jury[.]” Strong v. State, 263
S.W.3d 636, 648 (Mo. banc 2008) (quotation marks omitted). For the reasons already
explained, defense counsel lacked a sufficient basis to move to strike Juror R.M. from the
22
venire. With no presumption of prejudice to aid him, Hosier wholly failed to show a
reasonable probability that either the guilt or penalty phases of his trial would have been
different had Juror R.M. not served. Id. at 648-49.
2. Failure to Strike Juror M.O.
Hosier similarly claims defense counsel were ineffective for failing to move to
strike Juror M.O. The motion court denied this claim, and its findings were not clearly
erroneous.
Juror M.O. indicated his opinion concerning the death penalty was a “five” on the
scale of “one” (strongly opposed) to “seven” (strongly in favor). In explaining his
answer, Juror M.O. wrote: “[I]f [Hosier] was convicted of two deliberate murders that, if
it can be proven beyond all reasonable doubt that an individual planned and committed
two murders, then the death penalty is a just and appropriate punishment.” Concerning
life without parole, he wrote: “Under the circumstances provided, I would say that a
sentence of life in prison would represent a humanitarian gift.” Juror M.O. wrote that,
although a willful disregard for human life was “not something that can be met with a
great deal of leniency,” “the punishment must fit the crime .... The death penalty should
not be considered lightly. ... A jury can be just as guilty of disregarding human life if they
arbitrarily condemn someone to death.” He further wrote, “Again, every circumstance is
different and requires different considerations.” Even though his father had been a
sheriff’s officer in Texas in the late 1980s, Juror M.O. testified that this fact would not
make him on the side of law enforcement generally, and he testified his brother had been
charged with and convicted of making “felony terroristic threats” to the brother’s
23
ex-wife. Finally, Juror M.O. said he tried “to be as unbiased as possible” in his
professional career. The motion court found the decision not to move to strike Juror
M.O. was reasonable trial strategy. This finding is not clearly erroneous.
As explained above, ‘[t]he qualifications for a prospective juror are not determined
from a single response, but rather from the entire examination.” Deck, 303 S.W.3d at
535. In ruling on a motion to strike, a “trial judge evaluates the venire’s responses and
determines whether their views would prevent or substantially impair their performance
as jurors (including the ability to follow instructions on the burden of proof).” Id.
(quotation marks omitted). In light of this standard and the evidence adduced during
voire dire, there is no reason to believe that a motion to strike Juror M.O. would have – or
should have – been sustained. Juror M.O. did not indicate a mind unalterably closed or
an unwillingness or inability to follow the court’s instructions. Id. Just the opposite. His
written response focused on his need to know the circumstances of a crime before
deciding on a just punishment and that he understood proof beyond a reasonable doubt
would be required.
Because Juror M.O. was qualified to serve, Hosier was required to show both that
defense counsel’s decision not to move to strike Juror M.O. for cause was unreasonable
and that he was prejudiced as a result. As with his claim regarding Juror R.M., Hosier
made neither showing. The motion court’s denial of this claim was not error.
D. Failure to Object to Victim Impact Testimony
Hosier claims defense counsel were ineffective for failing to object to certain
victim impact testimony. Dakota Gilpin (“Dakota”), a member of the United States
24
Navy, is the son of Victim and her husband. Wearing his uniform, he testified at the
penalty phase regarding the impact of Hosier’s crime. Dakota testified his mother and
father were present when he graduated basic training and bought him a new car. But,
because Hosier shot and killed them, his mother did not have a chance to finish teaching
him how to cook and his brother had to teach him how to drive a car with manual
transmission. Hosier claims defense counsel were ineffective for failing to object to
testimony concerning the impact of the death of Dakota’s father because he was only
charged with murdering Victim, Dakota’s mother. He argues the only relevance of the
death of Dakota’s father was the existence of one of the statutory aggravators, and victim
impact testimony regarding his murder was not proper.
Counsel Zembles testified she did not object to Dakota’s testimony on any
grounds because she wanted Dakota off the stand as quickly as possible. She believed
Dakota was extremely sympathetic and was stating the obvious, and Hosier’s interests
would not be served by raising objections and, thereby, prolonging the jury’s exposure to
Dakota. The motion court found it was reasonable trial strategy not to object so as not to
call attention to the emotional impact of the testimony or attack a victim in the eyes of the
jury. This finding is not clearly erroneous.
“The movant must prove that a failure to object was not strategic and that the
failure to object was prejudicial.” Clay, 975 S.W.2d at 135. “Counsel will not be
deemed ineffective for failing to make nonmeritorious objections.” Id. “In many
instances seasoned trial counsel do not object to otherwise improper questions or
arguments for strategic purposes.” Id. (quotation marks omitted). “It is feared that
25
frequent objections irritate the jury and highlight the statements complained of, resulting
in more harm than good.” Id. (quotation marks omitted).
Indulging the questionable assumption that a meritorious objection could have
been made to Dakota’s testimony regarding the impact of the loss of his parents, Counsel
Zemble made a reasonable strategic choice not to raise this objection during Dakota’s
testimony because any objection likely would have been perceived by the jury as callous
and would have served only to highlight Dakota’s testimony generally. Even if trial
counsel had objected to Dakota’s testimony and that objection had been sustained,
Dakota still would have been allowed to testify regarding the loss of Victim, his mother.
Hosier failed to demonstrate a reasonable probability that the outcome of his penalty
phase would have been different if Dakota’s testimony had been limited only to the
impact of losing his mother and not both of his parents. Accordingly, counsel was not
ineffective for failing to object under these circumstances, and the trial court did not err
in denying this claim.
E. Failure to Object to Prosecutor’s Penalty Phase Closing Argument
Hosier claims defense counsel were ineffective for failing to make a proper
objection to a statement made during the state’s closing argument. The relevant portion
of the transcript provides:
[PROSECUTOR]: [T]he [s]tate urges you to find beyond a reasonable
doubt those two aggravating circumstances and that this evidence in
aggravation outweighs any evidence of mitigation, and then consider the
death penalty as the just verdict in this case.
And in courts, jurors talk oftentimes – or people talk and then talk
about justice and doing one thing or the other and whether something
26
would actually get done or not. And for purposes of making that decision,
I’ve worked on death penalty cases as a prosecutor. And the last four to
five that I’ve worked on have been executed.
[DEFENSE COUNSEL]: Judge, I’m going to object to this.
[PROSECUTOR]: They’ve been executed.
[DEFENSE COUNSEL]: I’m going to object at this point. May I approach
if you think it’s necessary?
(Counsel approached the bench, and the following proceedings were had:)
[DEFENSE COUNSEL]: It’s inappropriate closing argument. If [the state]
is preparing to imply or explicitly state to this jury or even imply that he
has some special knowledge that hasn’t been evidence in this courtroom –
[PROSECUTOR]: The next sentence, Your Honor, is “And you will have
to accept that if you give him the death sentence he will be executed.”
THE COURT: Okay.
(Proceedings returned to open court.)
[PROSECUTOR]: As I was saying before the objection there, and you as
jurors will have to base your decision if you give death that he will
certainly be executed. In other words, have no doubt about that.
Hosier claims counsel should have objected on the grounds that the state was
arguing facts not in evidence and, if this objection had been made, it would have (or, at
least, should have) been sustained. The motion court denied relief on this claim, finding
there was no error by defense counsel or any prejudice to Hosier assuming there had been
error. These findings are not clearly erroneous.
Hosier’s argument fails in its premise. Any reasonable reading of the portion of
the transcript set forth above shows defense counsel made the objection Hosier now
claims they should have made, i.e., that the state was arguing facts not in evidence. The
trial court did not sustain this objection, but only after the state assured the court it was
heading toward safer (or, at least, less objectionable) ground. Whether the trial court
27
acted properly is not before this Court in this postconviction relief proceeding. Such
matters are for direct appeal, and Hosier did not raise this issue in his direct appeal. In
this postconviction proceeding, the Court is concerned only with whether Hosier received
constitutionally effective assistance of counsel, and defense counsel cannot be said to
have fallen short of this standard when they made the only objection Hosier asserts they
should have made. 5
II. Judge Disqualification
Hosier did not object to Judge Joyce presiding over his criminal trial, nor did he
claim on direct appeal that Judge Joyce should have recused herself sua sponte. He did,
however, move to disqualify Judge Joyce from presiding over his postconviction
proceeding, and this Court appointed Judge Gary Oxenhandler to hear that motion and
rule on it.
Hosier based both his motion to disqualify Judge Joyce from presiding over his
postconviction proceeding and his claim that she should have recused herself sua sponte
in his criminal case on the same facts. Before overruling Hosier’s motion to
disqualify Judge Joyce, Judge Oxenhandler held an evidentiary hearing and found the
following facts. Judge Joyce previously served as an assistant prosecuting attorney in
Cole County. In that capacity, she represented the state in numerous child support
enforcement cases. In one of those child support enforcement cases, decades ago, Judge
5
Defense counsel did not reassert their closing argument objection in the motion for new trial,
and Hosier does not claim their failure to do so (or to raise this issue on appeal) constituted
ineffective assistance of counsel.
28
Joyce was the attorney of record for Hosier’s ex-wife, who was then owed child support
from her previous husband. Judge Joyce had no memory of having any contact with
the ex-wife during that case. In fact, Judge Oxenhandler found the ex-wife was a party in
name only in the child support enforcement action and that Judge Joyce actually
represented the state as the real party in interest. Ultimately, Judge Oxenhandler
overruled the motion to disqualify Judge Joyce because her representation in the long-ago
child support enforcement action would have no impact on her ability to preside over
Hosier’s postconviction proceeding and because no reasonable person in possession of
the relevant facts would believe there was even an appearance of impropriety in her doing
so.
Hosier now claims – for the first time in his Rule 29.15 motion – that Judge Joyce
erred by not recusing herself sua sponte in his criminal case. Both points failed below,
and he pursues both of them in this appeal. The Court rejects both arguments.
A. Judge Oxenhandler’s Ruling on Hosier’s Motion to Disqualify Judge Joyce in
Postconviction Proceeding
The Court reviews a ruling on a motion to disqualify only for an abuse of
discretion. McLaughlin v. State, 378 S.W.3d 328, 338 (Mo. banc 2012). A motion to
disqualify should be granted if “a reasonable person would have factual grounds to find
an appearance of impropriety and doubt the impartiality of the court.” State v. Smulls,
935 S.W.2d 9, 17 (Mo. banc 1996). “[A] disqualifying bias or prejudice is one that has
an extrajudicial source and results in an opinion on the merits on some basis other than
29
what the judge learned from the judge’s participation in a case.” Anderson v. State, 402
S.W.3d 86, 91 (Mo. banc 2013) (quotation marks omitted).
Judge Oxenhandler did not abuse his discretion. Hosier’s motion rests entirely on
a 25-year-old child support enforcement matter of which Judge Joyce had no recollection
and in which she did not interact with Hosier’s ex-wife or anyone connected to Hosier’s
criminal case. Instead, it was merely one of thousands of such cases in which she
participated. No reasonable person with knowledge of these facts would find even an
appearance of impropriety in Judge Joyce’s ability to preside over Hosier’s
postconviction proceedings. Smulls, 935 S.W.2d at 17.
B. Judge Joyce’s Decision not to Recuse from Criminal Proceeding
Separate and apart from Hosier’s motion to disqualify Judge Joyce from presiding
over his postconviction proceedings, Hosier claims that he is entitled to postconviction
relief because Judge Joyce should have recused herself sua sponte in his criminal case.
To be clear, Hosier challenges only Judge Joyce’s actions and does not claim his defense
counsel were ineffective for failing to move to disqualify her in his criminal case.
Hosier has waived his challenge to Judge Joyce’s failure to recuse herself sua
sponte in his criminal case by failing to raise that claim at any time during his criminal
case, including on appeal. “Post-conviction relief under Rule 29.15 is not a substitute for
direct appeal or to obtain a second chance at appellate review.” McLaughlin, 378 S.W.3d
30
at 357. Accordingly, the motion court did not err in rejecting this claim in the current
postconviction relief context. 6
Conclusion
For the reasons set forth above, the judgment of the motion court is affirmed.
_____________________________
Paul C. Wilson, Judge
All concur.
6
Even if Hosier had asserted an ineffective assistance of counsel claim based on defense
counsel’s failure to move to disqualify Judge Joyce in his criminal case, that claim would have
failed because such a motion would have been meritless for the same reasons discussed above,
i.e., that nothing about Judge Joyce’s involvement in a decades-old child support enforcement
matter would give a reasonable person with knowledge of those facts even the appearance of an
impropriety in her presiding over Hosier’s criminal trial.
31