Dominique Lindsey (“Lindsey”) brings this appeal from the Jackson County Circuit Court (“motion court”) challenging the motion courts denial, following an evidentiary hearing, of his Rule 29.15
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motion alleging ineffective assistance of counsel. Lindsey argues the motion court erred in denying his Rule 29.15 motion because his trial counsel (“trial counsel”) was ineffective in failing to adequately investigate a potential alibi witness and then call that witness to testify during trial. We affirm the decision of the motion court.
Statement of Facts
At all relevant times, Lindsey lived with his mother, Stephanie Wright, and her husband, Ewon Wright, who was Lindseys step-father, at the Wrights house in Kansas City. Mr. Wright had an ongoing frustration with Lindsey because Lindsey did not work or support himself. The Wrights provided for Lindsey and frequently tried to persuade him to find a job and take care of himself.
On July 14, 2015, Mr. and Ms. Wright were preparing to take a trip to visit Mr. Wrights family. They informed Lindsey he would have to stay somewhere else during their trip because he had previously caused a fire in the house, and they did not trust him to be alone in the home. Lindsey became upset they were leaving to visit Mr. Wrights family, and he began arguing with his mother in front of Mr. Wright. Mr. Wright ordered Lindsey to stop arguing with his mother, which then led to a verbal altercation between Lindsey and Mr. Wright. Mr. Wright told Lindsey to “grow up” and “get up off of your mothers tit.” This statement angered Lindsey, and he left Mr. and Ms. Wrights bedroom for a moment. Lindsey returned to the bedroom with his hand behind his back, and Ms. Wright could see he was holding a weapon. She asked Lindsey what he was doing, and she reached toward him to try to retrieve the weapon. Lindsey pushed her out of the way and shot Mr. Wright three times.
After shooting Mr. Wright, Lindsey ran out of the house and down the street. Ms. Wright called 9-1-1 and told the dispatcher that Lindsey had shot her husband, and she followed their advice to hold pressure on Mr. Wrights wounds. After police and medical personnel had arrived, Mr. Wright was transported to the hospital, and after multiple surgeries, he died as a result of complications from the gunshot wounds.
Lindsey was arrested on January 21, 2016. Lindsey was charged with second-degree murder, Section 565.021,
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and armed criminal action, Section 571.015. The case proceeded to a bench trial, and trial counsel argued the State never investigated Ms. Wright as a potential suspect, never connected the physical evidence found at the scene to Lindsey, and relied solely on the testimony of a single eyewitness.
The trial court found Lindsey guilty of murder in the second degree and armed criminal action and sentenced Lindsey to twenty years’ imprisonment for murder in the second degree and a concurrent term of three years for armed criminal action. Lindsey appealed, and this Court affirmed the judgment in a per curiam order in State v. Lindsey, 575 S.W.3d 789 (Mo. App. W.D. 2019).
Lindsey filed a timely pro se Rule 29.15 motion arguing ineffective assistance of counsel which was later timely amended by appointed counsel. In Lindseys Amended Motion, he argued his trial counsel was ineffective for failing to investigate a potential alibi witness, Damon Williams (“Williams”), and then call Williams as a witness during trial. The motion court held an evidentiary hearing. Williams testified at the evidentiary hearing that he was Lindseys father and had informed trial counsel on two separate occasions of his availability to be an alibi witness if needed. Although he never provided trial counsel with the details of the alibi, Williams testified at the evidentiary hearing that on the day of the shooting, Lindsey was with him cleaning mold at one of Williamss rental properties in Raytown. Williams testified that he was available and willing to testify at trial that Lindsey was with him on the day of the shooting.
Trial counsel also testified at the evidentiary hearing and stated Williams had only informed her once about his availability to be an alibi witness, just weeks before trial. Trial counsel did not investigate Williamss purported alibi because she did not find it to be credible. Rather, she believed Williamss desire to be an alibi witness was “a desperate attempt of a father who cared very much for his child to make an effort to provide a defense that we otherwise may not have.” Trial counsel testified Williams never told her he had an alibi for Lindsey, rather “he suggested that in the event an alibi defense would be helpful to his son, that he would be willing to offer that.” Trial counsel stated, “It was simply posed to me in the form of a question regarding whether or not that would be something to potentially help [Lindsey] if an alibi was created.”
The motion court denied Lindseys Amended Motion for failing to “convince the Court trial counsels performance ‘fell below an objective standard of reasonableness’ under Strickland.” Lindsey appeals the decision of the motion court.
Standard of Review
“When reviewing a motion courts denial of a claim of ineffective assistance of counsel, the reviewing court is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Hays v. State, 360 S.W.3d 304, 309 (Mo. App. W.D. 2012) (internal quotation marks omitted); Rule 29.15(k). The judgment is clearly erroneous when “the court is left with a definite and firm impression that a mistake has been made.” Jindra v. State, 580 S.W.3d 635, 640 (Mo. App. W.D. 2019) (quoting Middleton v. State, 80 S.W.3d 799, 804 (Mo. banc 2002)). We defer to the motion courts determinations of credibility. Morgan v. State, 319 S.W.3d 514, 517 (Mo. App. S.D. 2010).
Analysis
Lindseys sole point on appeal argues “trial counsel failed to adequately investigate when [Lindseys] father told her that he could provide an alibi and then call [Lindseys] father as a witness to testify that [Lindsey] was with him, working at a home in Raytown, at the time of the shooting in Kansas City.”
To be entitled to post-conviction relief for ineffective assistance of counsel, the movant must satisfy the two-pronged Strickland test. Jindra, 580 S.W.3d at 641; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the movant must show counsel failed to perform to the degree of skill, care, and diligence that a reasonably competent attorney would under similar circumstances. Jindra, 580 S.W.3d at 641; Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This requires that the movant show that counsels representation “fell below an objective standard of reasonableness.” Jindra, 580 S.W.3d at 641; Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The movant must then show that he was prejudiced by this failure. Jindra, 580 S.W.3d at 641. “Prejudice occurs when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Johnson v. State, 406 S.W.3d 892, 899 (Mo. banc 2013)). “A movant must overcome the strong presumption that counsels conduct was reasonable and effective.” Id.
“The selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim.” Jindra, 580 S.W.3d at 641. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsels judgments.” Id. at 691, 104 S.Ct. 2052. “To succeed on a claim of ineffective assistance of counsel for failure to call a witness, [Lindsey] must show that: (1) counsel knew or should have known of the existence of the witness, (2) the witness could be located through a reasonable investigation, (3) the witness would testify, and (4) the testimony of the witness would have produced a viable defense.” Hays, 360 S.W.3d at 309-10.
Lindsey contends that after Williams told trial counsel he was available to be an alibi witness, trial counsel did not interview Williams and rule out the alibi after an investigation of the facts. “Without any follow up investigation or questions regarding the alibi,” Lindsey argues, “counsels determination regarding the alibi was not informed or reasonable.” Trial counsels failure to investigate Williamss alibi defense, according to Lindsey, falls below the objective standard of reasonableness.
Lindsey cites Perkins-Bey v. State, 735 S.W.2d 170, 172 (Mo. App. E.D. 1987), to support his contention that trial counsels failure to investigate Williamss alibi rendered Lindseys trial counsel ineffective. In Perkins-Bey,
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the defendant informed his trial counsel he was “at home with his mother at the time the crimes charged were committed.” Id. at 171. “[The defendants] testimony that he informed his appointed counsel of his alibi defense and the name of his mother as a witness is undisputed.” Id. The trial counsel never investigated defendants claims or elicited any information pertaining to the alibi from the supposed witness, defendants mother. Id. at 171 (“There is no testimony that [trial counsel] asked about the details of the alibi defense or that [trial counsel] obtained any information from defendants mother which would have confirmed or refuted the alibi.”). The court held trial counsels failure to investigate defendants alibi fell below the objective standard of reasonableness because “all reasonable steps to investigate and present favorable evidence were not taken for the failure of which there is a ‘probability’ the result of the proceeding would have been different.” Id. at 172.
Lindseys reliance on Perkins-Bey is misplaced. Here, Lindsey never informed trial counsel he had an alibi. Trial counsel only learned of a potential alibi from Lindseys father, Williams. Williams retained trial counsel on his sons behalf. Williamss statements to trial counsel did not in any way set forth what the nature of the alibi testimony would be, only that he could be available to provide an alibi if it were helpful to Lindseys case. Trial counsel understood this proposition as a “desperate father trying to help his son,” rather than a viable defense worth investigating, and the motion court found trial counsels testimony credible. Trial counsel cited her 19-year career as a criminal defense attorney during the evidentiary hearing as part of her basis for not further exploring Williamss supposed alibi defense because she believed it did not exist or would not have been supported by evidence that she was comfortable moving forward with in trial.
Further, the motion court heard the testimony of Williams at the motion hearing. While Williams testified at the motion hearing that he was sure Lindsey was with him working at a rental house on the day of the murder, he could not provide any documentation or other support for this assertion merely stating “I could have possibly found something. I could have looked for receipts for the work that we did at my property.”
The motion court found trial counsels testimony credible when she stated that Williams merely asked her if he provided an alibi for his son if it would be something that would potentially help, but failed to state that he could in fact provide an alibi for Lindsey and failed to provide any details as to what that alibi might be and she did not find his suggestion to be legitimate.
Instead of pursuing this defense, trial counsel chose to argue the States failure to connect the physical evidence to Lindsey, the States failure to rule out Ms. Wright as a potential suspect, and the States limited evidence of only one eyewitness to the shooting (who may have in fact been the shooter). This defense strategy was reasonable under the circumstances and does not fall below the objective standard of reasonableness under Strickland.
Lindsey was also not prejudiced by trial counsels decision to not call Williams as a witness during trial. “Failure to call a witness to testify does not amount to ineffective assistance of counsel unless that witnesss testimony would unqualifiedly support the movant.” Hays, 360 S.W.3d at 310 (internal quotation marks omitted). Failure to call a witness to testify is sound trial strategy when the testimony may have hurt the defendant more than it would have helped. See State v. Kelly, 885 S.W.2d 730, 735 (Mo. App. W.D. 1994).
Here, trial counsel determined Williams was desperately attempting to help his son and would not have been a credible witness. Williams is Lindseys father and Ms. Wrights ex-partner. Ms. Wright identified Lindsey as the man who shot Mr. Wright, her new husband. Trial counsel considered the tenor of Williamss offer to be an alibi witness and the potential risks associated with calling Ms. Wrights ex-partner to the stand when deciding not to have Williams testify. It was reasonable for trial counsel to conclude that calling Williams may have hurt Lindseys case more than it would have helped. And as a matter of trial strategy, trial counsel argued other theories during closing argument rather than pursuing an alibi defense. Williamss alibi testimony would not have unqualifiedly supported Lindsey; therefore, Lindsey was not prejudiced. Accordingly, the motion courts decision to deny Lindseys Amended Motion was not clearly erroneous.
Appellants point is denied.
Conclusion
For all of the above-stated reasons, we affirm the judgment of the motion court.
FOOTNOTES
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. All rule references are to Missouri Supreme Court Rules (2018), unless otherwise indicated.
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. All references are to R.S.Mo. 2016, as currently updated by supplement, unless otherwise noted.
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. Perkins-Bey involved a claim of ineffective assistance of counsel under Rule 27.26, which was the 1987 analogue to Rule 29.15. The appellate court standard of review for both rules is identical.
Gary D. Witt, Judge
All concur