               In the Missouri Court of Appeals
                                   Western District

 JAMES R. THOMPSON,                       )
                               Appellant, )             WD82221
 v.                                       )
                                          )
 STATE OF MISSOURI,                       )             FILED: September 24, 2019
                             Respondent. )

       APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY
             THE HONORABLE CHRISTINE CARPENTER, JUDGE

       BEFORE DIVISION TWO: LISA WHITE HARDWICK, PRESIDING JUDGE,
            THOMAS H. NEWTON AND MARK D. PFEIFFER, JUDGES
       James Thompson appeals from the denial of his Rule 29.15 motion for post-

conviction relief after he was convicted of first-degree murder. He contends his trial

counsel was ineffective for failing to request that a venireperson be struck for cause.

For reasons explained herein, we find no error and affirm the motion court’s judgment.

                           FACTUAL AND PROCEDURAL HISTORY

       In April 10, 2013, Thompson and his accomplice, Casey Lewis, murdered Brian

Daniels by shooting him three times. Thompson was Daniels’s friend and caretaker.

Daniels had been badly burned in an apartment fire and was unable to maintain his

house due to his injuries. Daniels had received a settlement of approximately five

million dollars from a lawsuit stemming from the fire. Before Thompson and Lewis killed

Daniels, Thompson forged a document purporting to be Daniels’s will, which
bequeathed all of Daniels’s money and property to Thompson, and another document

purporting to be a power of attorney, which named Thompson as Daniels’s attorney-in-

fact. After the murder, Thompson confessed the details of the murder to another friend.

       The State charged Thompson with first-degree murder, and a jury trial was held.

During voir dire, defense counsel asked the venire panel whether any of them felt that

the defense should put on evidence. One venireperson responded that she believed

the defense would need to present evidence. After defense counsel explained that he

would be cross-examining the State’s witnesses and questioning the evidence that the

State introduced, he asked again if anyone was “going to require the defense to put on

evidence.” Another venireperson responded:

               He’s assumed innocent at this point, but the State is going to do
       their best to prove that he’s not that way, that he’s guilty. And you have to
       counter that. And I would believe that just cross-examining the witnesses
       is not – insufficient. I would think you would have to present further
       evidence beyond that.

Defense counsel asked if anyone else felt that way. Venireperson 38 replied, “Yes. I

think that if you don’t bring that out in your cross-examination of the witnesses, then

yes, you need to add a little bit more to that.” When defense counsel followed up by

asking venireperson 38 if she would require the defense to present evidence that

Thompson was not guilty, she responded affirmatively. Defense counsel received

similar responses from several other venirepersons.

       Almost all of the potential jurors who had indicated that they would require the

defense to present evidence were struck for cause, including two venirepersons whom

defense counsel specifically requested to strike for that reason alone. Defense counsel

did not move to strike venireperson 38 for cause, however, and she was not discussed


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during the jury selection conference. Following the strikes for cause and peremptory

strikes, the court read the list of venirepersons who would comprise the jury.

Venireperson 38 was included on the list. Defense counsel did not object and, instead,

acknowledged that the court’s list was correct. Defense counsel did not object to

venireperson 38’s service on the jury at any point during the trial and did not include her

service as a claim of error in his motion for new trial.

       The jury found Thompson guilty of first-degree murder, and the court sentenced

him to life in prison without the possibility of parole. We affirmed his conviction and

sentence on direct appeal in a per curiam order. State v. Thompson, 506 S.W.3d 355

(Mo. App. 2016). One of the claims raised in his direct appeal was that the circuit court

erred in failing to strike venireperson 38 sua sponte for cause. We found no basis for

plain error relief, noting that, because the circuit court has no duty to remove any

venireperson sua sponte, there was no evident, obvious, or clear error and, therefore,

no plain error. Having found no plain error, we declined to proceed to the second step

in the plain error analysis of determining whether the claimed error resulted in manifest

injustice or a miscarriage of justice.

       Thompson subsequently filed a pro se motion for post-conviction relief, which

was later amended by counsel. One of the claims in his amended motion was that

defense counsel was ineffective for failing to request that venireperson 38 be stricken

for cause after she “unequivocally” stated during voir dire that she would require the

defense to present evidence that Thompson was not guilty.

       An evidentiary hearing was held. Defense counsel testified on direct examination

that he was unable to remember venireperson 38 specifically and did not remember



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whether he requested that she be struck for cause or whether she served on the jury.

On cross-examination, defense counsel testified that he knew before the trial started

that Thompson was going to testify and that he was planning to call multiple witnesses

to testify on Thompson’s behalf. Defense counsel further testified that Thompson did, in

fact, testify for over six hours and that the defense called eight witnesses. Defense

counsel stated that, when he asked venirepersons during voir dire whether they would

require the defense to put on evidence, he already knew that he would put on evidence

and, essentially, was “asking a hypothetical question that [he] knew would never occur.”

He testified that, as a result, he was not “too concerned” if a panelist said that he or she

would require him to put on evidence.

       In denying this claim, the motion court found that defense counsel was not

ineffective because he provided an acceptable explanation for why he failed to move to

strike venireperson 38. Additionally, the court found that Thompson was not prejudiced

by venireperson 38’s service on the jury because defense counsel did, in fact, present

evidence. Thompson appeals.

                                   STANDARD OF REVIEW

       We review the denial of a post-conviction motion for clear error. Rule 29.15(k).

The motion court’s findings and conclusions are clearly erroneous only if a review of the

entire record leaves us with a definite and firm impression that a mistake was made.

Edwards v. State, 200 S.W.3d 500, 509 (Mo. banc 2006). We presume the motion

court’s findings and conclusions are correct. Id.

       To obtain post-conviction relief on an ineffective assistance of counsel claim,

Thompson had to establish, by a preponderance of the evidence, that his counsel failed



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to exercise the customary skill and diligence of a reasonably competent attorney under

the same or similar circumstances and that he was thereby prejudiced. Zink v. State,

278 S.W.3d 170, 175 (Mo. banc 2009) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)). To demonstrate prejudice, Thompson had to show that “‘there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. 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) (quoting Strickland, 466 U.S. at 694)).

                                         ANALYSIS

       In his sole point on appeal, Thompson contends the motion court clearly erred in

denying his claim that defense counsel was ineffective for failing to strike venireperson

38 for cause. Thompson argues that venireperson 38’s statement that defense counsel

would need to present evidence that he was not guilty showed a “clear inability” to

follow the court’s instructions regarding the proper burden of proof.

       Generally, the decision to strike a venireperson is a matter of trial strategy.

Collins v. State, 226 S.W.3d 906, 911 (Mo. App. 2007). “Reasonable decisions

regarding trial strategy cannot be the basis for an ineffective assistance of counsel

claim.” Id. (citation omitted). “However, the failure to challenge a venireperson who

admits to a prejudice to the defendant's detriment constitutes ineffective assistance

absent an acceptable explanation.” Id. (citation omitted).

       Here, the motion court found credible defense counsel’s explanation that he did

not move to strike venireperson 38 because he always knew that he would be

presenting evidence, including Thompson’s testimony; consequently, he was not “too



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concerned” about venireperson 38’s statement that, if defense counsel did not

adequately challenge the State’s case through cross-examination, she would expect

him to put on some evidence. The motion court also found credible defense counsel’s

testimony that his voir dire question regarding whether venirepersons would require the

defense to put on evidence was merely a hypothetical question for a situation that he

knew would never occur. Deferring to the motion court’s credibility determination, we

find that the motion court did not clearly err in finding that defense counsel had an

acceptable explanation for not moving to strike venireperson 38 and, therefore, his

failure to move to strike her did not constitute deficient performance.

       Moreover, Thompson failed to demonstrate that he was prejudiced by

venireperson 38’s service on the jury. Where a juror indicates an expectation during

voir dire that the defendant will present evidence and the defendant presents evidence,

“the possibility of prejudice disclosed by [the juror]’s voir dire examination evaporate[s].”

State v. Hadley, 815 S.W.2d 422, 424 (Mo. banc 1991) (emphasis added); State v.

Ebeirus, 184 S.W.3d 582, 586 (Mo. App. 2006). The motion court did not clearly err in

finding that Thompson suffered no prejudice by defense counsel’s failure to move to

strike venireperson 38. Point denied.

                                        CONCLUSION

       The judgment is affirmed.



                                           _____________________________
                                           LISA WHITE HARDWICK, JUDGE
ALL CONCUR.




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