                          In the Missouri Court of Appeals
                                  Eastern District
                                                 DIVISION TWO

FRED HUDSON,                                                     )   No. ED102907
                                                                 )
          Movant/Appellant,                                      )   Appeal from the Circuit Court of
                                                                 )   St. Louis County
vs.                                                              )
                                                                 )   Honorable Steven H. Goldman
STATE OF MISSOURI,                                               )
                                                                 )   Filed: March 15, 2016
          Respondent.                                            )


                                                   Introduction

           Fred Hudson (Movant) appeals the denial of his Rule 29.151 motion for post-conviction

relief without an evidentiary hearing. In two points on appeal, Movant contends that the motion

court clearly erred by denying his motion because (1) trial counsel was ineffective, and (2)

appellate counsel was ineffective. Specifically, in Point I, Movant contends that trial counsel

was ineffective for failing to elicit evidence (a) of a similar shooting at a neighboring house and

(b) that another person was implicated in the shooting. In Point II, Movant contends that

appellate counsel was ineffective for failing to raise, on appeal, preserved error in the trial

court’s refusal to quash the venire panel after a juror had an “emotional outburst” during the

beginning of voir dire. We affirm.



1
    Unless otherwise noted, all references to Rules are to Missouri Supreme Court Rules (2014).
                                                 Facts

        Movant was convicted of first-degree murder, first-degree assault, and two counts of

armed criminal action. The court sentenced Movant to life in prison without parole for first-

degree murder, life in prison for assault, and 30 years in prison for each of the two counts of

armed criminal action. The two life sentences run consecutively to the two concurrent 30-year

sentences, for an aggregate of two life sentences plus 30 years.

        During Movant’s trial, at the beginning of voir dire, a juror informed the court that she

was unable to follow the court’s instructions because she was related to the victims. The

transcript from voir dire, in relevant part, reads:

        [The Court]:      Is there any of you who if selected as a juror could not for any
                          reason follow that instruction? If so, please raise you[r] hand. I
                          don’t see any hands, so I assume -- what’s your name, ma’am?

                                                 ***

        [The Court]:      Let me find you on here. Okay, you’re number 45. Did you
                          have a problem with the instruction?

        [Juror 45]:       Yeah.

        [The Court]:      Why don’t you come on up here and we can talk to you, [Juror
                          45]. Did the attorneys want to come up?

        (The following proceedings took place at sidebar with Panelist No. 45, […]:)

        [The Court]:      Take your time. You’re not in any trouble or anything. Let me -
                          - this is a mic that goes to the court reporter so we have to all
                          speak in this so she can -- it saves space up here; okay?

        [Juror 45]:       [J.H.] and [S.H.] are my cousins.

        [The Court]:      Okay.

        [Juror 45]:       Can I please leave?

        [The Court]:      Yeah. We’ll go ahead -- there’s no objection to excusing her is
                          there?



                                                      2
       [Trial Counsel]: No, Your Honor.

       [The Court]:     You’ve got to go back up to the sixth floor.

       [Juror 45]:      I’m sorry.

       [The Court]:     Harvey, do you want to help this lady out?

       [The State]:     Let the record reflect that was the victims’ relative.

       [Trial Counsel]: Your Honor, at this time I would move to quash the entire jury
                        panel because of the victim being so visibly upset in front of the
                        panel. I think she tainted the panel. I don’t think they can remain
                        fair and impartial. She is a cousin of J.H., one of the alleged
                        victims in this offense. Her emotional outburst was overheard by
                        the jury. You can still hear her crying in the hallway. I could
                        only imagine if she had said anything within earshot of the other
                        jurors where she was seated. Therefore, at this time I move to
                        quash the entire jury panel because I feel that they have been
                        tainted by this particular Juror No. 45. I don’t have her name in
                        front of me.

                                               ***

       [The Court]:     What’s the State’s position?

       [The State]:     I don’t think she ever stated in front of the jury how she was
                        related to the case. I thought she may have been a victim or a
                        family member been killed. The only time she ever said it was
                        up here at the bench out of earshot. So all we have really is a
                        woman crying. They have no idea what it’s for. I don’t think -- I
                        think you’re going to hear some emotional testimony today, and
                        you might have someone on the stand cry. I don’t know how
                        that is prejudicial.

       [The Court]:     Yeah. I think the only -- that I noticed, the only time she ever
                        said anything about why she was crying was when she got up
                        here, so those were her first words, and the jury couldn’t have
                        heard that. She said it very softly up here. So I don’t see how it
                        really would have prejudiced the jury, so I’ll deny the request for
                        a mistrial.

       The evidence at trial showed that just after midnight on January 22, 2012, Movant fired

eight shots through the bedroom window of his girlfriend’s parent’s house. The shots killed his



                                                 3
girlfriend’s mother, J.H., and injured her father, S.H. S.H. testified that his daughter came into

their room after hearing the shots. S.H. turned to look at his wife, who said, “Honey, I’ve been

shot.” J.H. was pronounced dead at the scene. S.H. was shot multiple times and sustained

significant injuries.

        S.H. also testified that his daughter and Movant started dating around 2004. S.H. recalled

that Movant was abusive towards his daughter and that he warned her about being in a

relationship with Movant. S.H. testified that around 2008, Movant snuck into S.H.’s house. J.H.

was the complaining witness against Movant in a criminal case involving first-degree burglary

regarding that incident. Movant pleaded guilty in that case and was sentenced to five years in

prison, although Movant was paroled before his sentence had run its full course.

        S.H. testified that Movant sometimes parked his car in the carport of a neighboring

vacant house and that just after the shooting he observed someone running in the direction of that

vacant house. The detectives that arrived at the scene observed fresh tire tracks and oil on the

carport driveway. Subsequently, Movant was arrested in a vehicle that appeared to be leaking

oil. The detectives also obtained Movant’s cell phone records and learned that, at the time of the

shooting, Movant’s phone was using signals from a cell tower near the victims’ house. This cell

tower information is consistent with Movant being at or near the scene of the murder.

        Movant’s cousin testified that Movant left her sister’s house on the night of the murder,

and when he returned early the next morning, Movant asked her for permission to put something

in the trunk of her vehicle. Movant’s cousin agreed and later discovered a gun and bullets in her

trunk. On January 28, 2012, Movant’s cousin informed the police about the gun and bullets she

found in her car. Testing later revealed that all of the eight casings found at the murder scene

had been fired from the gun Movant’s cousin found in the trunk of her vehicle.




                                                4
       Movant’s friend also testified that, about a week before the murder, he saw Movant in

possession of a gun that was the same make and model as the gun recovered in Movant’s

cousin’s trunk. Furthermore, the motion court noted the record indicated that Movant alluded to

his involvement in the shooting in a recorded telephone conversation with his mother while

Movant was in jail following his arrest for the murder of J.H.

       Movant was convicted and sentenced on all counts. Movant appealed his convictions and

sentences. This Court issued its per curiam order and memorandum in State v. Hudson, 433

S.W.3d 492 (Mo. App. E.D. 2014), affirming Movant’s convictions and sentences, and issued its

mandate on July 3, 2014. Movant then filed a timely pro se Rule 29.15 motion on July 16, 2014.

Post-conviction counsel was appointed on August 12, 2014 and entered an appearance on

September 23, 2014. Post-conviction counsel was granted an additional 30 days to file an

amended motion. Post-conviction counsel filed an untimely amended motion on November 26,

2014, sixteen days late. On the same day, post-conviction counsel also filed a motion to consider

the late motion as timely, which the court sustained. On January 23, 2015, the motion court

entered an order finding that the record refuted the amended motion. On March 16, 2015, the

motion court issued Findings of Fact, Conclusions of Law, and an Order of Judgment denying

relief without an evidentiary hearing. Movant appeals.

                                      Standard of Review

       Review of the denial of a motion for post-conviction relief is limited to a determination

of whether the findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k);

Nichols v. State, 409 S.W.3d 566, 568 (Mo. App. E.D. 2013). Findings and conclusions are

clearly erroneous if, after reviewing the entire record, this Court is left with the “definite and




                                                5
firm impression that a mistake has been made.” McIntosh v. State, 413 S.W.3d 320, 323 (Mo.

banc 2013). A motion court’s findings are presumed correct. Id.

       When a movant claims ineffective assistance of trial counsel, the movant must allege

unrefuted facts establishing that (1) counsel’s performance did not conform to the degree of skill,

care and diligence of a reasonably competent attorney and (2) he was thereby prejudiced.

Matthews v. State, 175 S.W.3d 110, 113 (Mo. banc 2005).            An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment. Strickland v. Washington, 466 U.S. 668,

691 (1984).    In order to show that counsel’s performance was deficient, the movant must

overcome a strong presumption that counsel’s performance was reasonable and effective.

Bradley v. State, 292 S.W.3d 561, 564 (Mo. App. E.D. 2009). In order to determine prejudice,

Movant must show “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. The

standard of review for a claim of ineffective assistance of appellate counsel is essentially the

same as that used in a claim against trial counsel. Tate v. State, 461 S.W.3d 15, 22 (Mo. App.

E.D. 2015). A movant must show by a preponderance of the evidence that (1) appellate counsel

failed to exercise the customary skill and diligence that a reasonably competent attorney would

perform under similar circumstances, and (2) he was thereby prejudiced. Id. at 21.

       To be entitled to an evidentiary hearing, the movant must satisfy a three-prong test: (1) he

must allege facts not conclusions which, if true, would warrant relief; (2) the facts must not be

refuted by the record; and (3) the matters complained of must have prejudiced the movant.

Nichols, 409 S.W.3d at 569.




                                                6
                                                 Discussion

                             Point I: Ineffective Assistance of Trial Counsel

        In his first point on appeal, Movant argues that he was denied his right to due process, a

fair trial, and effective assistance of counsel. Specifically, Movant argues that trial counsel was

ineffective for her failure to elicit evidence (a) of a similar shooting at a neighboring house and

(b) that another person had been implicated in the shooting. The State argues that Movant

pleaded only conclusions and not facts which would warrant relief, any facts Movant did plead

were inadmissible, and Movant failed to overcome the presumption of reasonable trial strategy.2

        Movant argues that trial counsel was ineffective for her failure to elicit evidence of a

similar shooting at a neighboring house. The record indicates that trial counsel obtained a letter

the victims wrote to their bank two months before the murder indicating they felt unsafe in their

neighborhood. Movant maintains that trial counsel acted unreasonably by not questioning S.H.

about the letter. Although this letter indicates that there was another home in the victims’

neighborhood that had been shot at, the letter gives little detail about the incident. There is no

description of the event or when it occurred, and there is no other evidence in the record that

further addresses these incidents. Furthermore, the letter indicates that the victims also felt

unsafe in their home because Movant was stalking their daughter.

        Movant also argues that trial counsel was ineffective for her failure to elicit evidence that

another person was implicated in the shooting of J.H and S.H. The record indicates that trial

counsel obtained a police report documenting a call received by Officer Neal regarding the


2
  In their response brief, the State contends this Court should not address Movant’s Point I because it groups
multiple allegations of error in a single point relied on in violation of Rule 84.04(d) and preserves nothing for
review. However, we were able to identify each of Movant’s arguments and will exercise our discretion and review
Movant’s allegations despite his point being multifarious. See Castor v. State, 245 S.W.3d 909, 914 n.6 (Mo. App.
E.D. 2008).



                                                       7
shooting at the victims’ home. The call was from Mr. S., who informed Officer Neal that S.H.’s

co-worker had informed him that S.H. was selling drugs and purchasing them from Mr. K.

Movant alleges that trial counsel acted unreasonably for not cross-examining S.H. or calling

Officer Neal as a witness about S.H.’s relationship to Mr. K. The motion court concluded that

no information from any police report, witness or evidence implicated Mr. K. in the shooting of

S.H. and J.H.

       Generally, choices regarding the introduction of evidence are virtually unchallengeable

because these choices made in the course of representation are easy to scrutinize with the

convenience of hindsight. Matthews, 175 S.W.3d at 115. It is not the job of this Court to

second-guess every decision of trial counsel. Id. Rarely will trial counsel be deemed ineffective

for failing to go far enough in cross-examining a witness. State v. Parker, 972 S.W.2d 508, 511

(Mo. App. W.D. 1998). Additionally, trial counsel’s decision not to call a witness to testify is a

matter of trial strategy that is virtually unchallengeable. State v. Loggins, 778 S.W.2d 783, 790

(Mo. App. E.D. 1989).

       The information contained in the victims’ letter to their bank regarding the other shooting

in their neighborhood was not supported by any additional evidence. Moreover, the letter

contained information about Movant stalking the victims’ daughter that would have bolstered the

prosecution’s case and been detrimental to Movant. Therefore, since the information contained

in the letter was unsupported by other evidence and contained information that would have been

damaging to Movant, we cannot conclude that trial counsel’s strategy was unreasonable.

       Furthermore, evidence which has no other effect than to cast bare suspicion on another is

not admissible. Helmig v. State, 42 S.W.3d 658, 671 (Mo. App. E.D. 2001). A defendant may

not introduce evidence that another person had the motive or opportunity to commit the crime




                                                8
with which the defendant is charged unless the defendant introduces evidence that the other

person committed some act directly connecting him with the crime.              Id. The information

contained in the police report provides no evidence, other than bare suspicion, that connects Mr.

K. to this case.     Trial counsel is not ineffective for failing to present evidence that is

inadmissible. McLaughlin v. State, 378 S.W.3d 328, 346 (Mo. banc 2012). As this evidence

would be inadmissible at trial, we cannot conclude that trial counsel’s strategy was unreasonable.

       However, even if the evidence was admissible, the outcome of the trial would not have

changed. The record is replete with evidence connecting Movant to the murder, and trial

counsel’s failure to further cross-examine the victim and elicit this evidence would not have

changed the outcome of the trial. Therefore, Movant was not prejudiced by trial counsel’s

failure to elicit evidence of a similar shooting at a nearby house, or evidence that another person

was implicated in the crime.

       Because Movant has alleged no facts showing that trial counsel’s failure to introduce this

evidence was unreasonable and that Movant was thereby prejudiced, Movant has failed to meet

his burden. The motion court properly denied his request for an evidentiary hearing on this

issue. Point I is denied.

                       Point II: Ineffective Assistance of Appellate Counsel

       In his second point on appeal, Movant again argues that he was denied his right to due

process, a fair trial, and effective assistance of counsel. However, in Point II, Movant argues that

appellate counsel was ineffective for his failure to raise on direct appeal preserved error in the

trial court’s refusal to quash the venire panel following a venireperson’s “emotional outburst.”

The State argues that appellate counsel was not obligated to raise this point on appeal, exercised




                                                 9
his professional judgment, and did not have access to the alleged proof because it was not in the

transcript.

        Movant alleges that Juror 45’s emotional reaction at the beginning of voir dire

“reasonably may have [a]ffected many or all of the remaining venire persons.” At voir dire,

Juror 45 informed the Court that she was cousins with J.H. and S.H. The record indicates that

this exchange between Juror 45 and the Court happened out of earshot of the other potential jury

members. After the exchange between Juror 45 and the Court, Juror 45 was escorted from the

room. Movant’s trial counsel then moved to quash the entire jury panel because she believed the

jurors had been tainted by Juror 45. The trial judge declined to quash the entire jury panel

because although the jurors may have seen that Juror 45 was visibly upset, they did not hear that

she was related to the victims. Therefore, the Court concluded that Juror 45’s emotional reaction

did not prejudice Movant.

        The record clearly refutes Movant’s allegation, as it indicates that the only time Juror 45

said why she was crying was when she was at the bench and out of earshot of the rest of the

potential jurors. Furthermore, the trial court is given wide discretion on a motion to quash the

entire jury panel. State v. Hayes, 169 S.W.3d 613, 618 (Mo. App. S.D. 2005). However, that

discretion is not unfettered. Id. In making its determination, the court must consider the

movant’s right to a trial before a fair and impartial jury. Id. The movant bears the burden of

demonstrating that the trial court erred in denying his motion to quash the jury panel. Id. Here,

there is nothing in the record that supports Movant’s allegation, and Movant does not allege any

proof that anyone else on the panel heard Juror 45 tell the judge that she was related to the

victims.




                                                10
        Therefore, appellate counsel did not act unreasonably for his failure to raise on direct

appeal preserved error in the trial court’s refusal to quash venire panel following Juror 45’s

emotional reaction. Appellate counsel had no duty to raise every non-frivolous claim on appeal,

and since there is no proof, in the record or otherwise, that supports Movant’s claim, there is no

indication that appellate counsel’s actions were unreasonable.        Tate, 461 S.W.3d at 22.

Furthermore, since the record shows that the rest of the panel did not hear Juror 45 say she was

related to the victims, Movant was not prejudiced. Accordingly, Movant has failed to meet his

burden, and the motion court properly denied his request for an evidentiary hearing on this issue.

Point II is denied.

                                              Conclusion

        The judgment of the motion court is affirmed.




                                             _______________________________
                                             Philip M. Hess, Presiding Judge


Gary M. Gaertner, Jr., J. and
Angela T. Quigless, J. concur.




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