GARY L. MITCHELL, JR.,                     )
                                           )
                     Appellant,            )
                                           )
       vs.                                 ) No. SD36227
                                           )
STATE OF MISSOURI,                         ) FILED: March 23, 2020
                                           )
                     Respondent.           )

             APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY
                      Honorable David C. Dally, Senior Judge
(Before Scott, P.J., Bates, C.J., and Burrell, J.)
       PER CURIAM. Convicted of class A felony drug trafficking, Gary Mitchell
unsuccessfully sought Rule 29.15 post-conviction relief. He appeals, claiming
ineffectiveness of trial counsel in not requesting lesser-included-offense
instructions and not calling a particular witness (“B.F.”).
       Courts strongly presume counsel was effective. To prevail below, Mitchell
had to prove (1) objectively-unreasonable assistance, and (2) resulting prejudice.
Evans v. State, 575 S.W.3d 779, 782 (Mo.App. 2019). To win on appeal, Mitchell
must show the motion court clearly erred in denying his claims. Rule 29.15(k).
              Failure to Instruct Down/Nested Lesser Offenses
       In Points 1 and 2, Mitchell claims his lawyer (“Counsel”) was ineffective in
not seeking to instruct down to two allegedly “nested” lesser offenses per State v.
Pierce, 433 S.W.3d 424 (Mo. banc 2014), and its companion case, State v.
Jackson, 433 S.W.3d 390 (Mo. banc 2014), both decided after Mitchell’s trial.
          We disagree. Meiners v. State, 540 S.W.3d 832, 839-41 (Mo. banc 2018),
rejected a claim that counsel was ineffective in not appealing the trial court’s pre-
Jackson refusal to instruct down. Our supreme court reviewed prior law and
found that instructing-down principles emphasized in Jackson (and Pierce)
were not previously so clear and obvious that counsel’s performance was
objectively unreasonable. Id. at 839-41. To declare counsel ineffective “would be
to require the prediction of Jackson’s holding. As this Court has repeatedly held,
a failure to anticipate a change in the law does not constitute ineffective assistance
of counsel.” Id. at 841.
          The motion court here did not err in ruling similarly, 1 so we need not reach
Mitchell’s theory of prejudice or the state’s counter-arguments. Points denied.
                                Failure to Call Witness
          Counsel’s decision not to have B.F. testify, “as a matter of trial strategy, is
virtually unchallengeable.” Cusumano v. State, 495 S.W.3d 231, 236 (Mo.App.
2016). The motion court cited Counsel’s concern about B.F.’s criminal history, and
Counsel’s opinion that B.F.’s testimony “would only duplicate” that of Mitchell and
another witness, which would not “add a great deal” and B.F.’s prior record “might
have actually been damaging.” The motion court also stated that it had “read and
reread” B.F.’s scant PCR testimony and could “find no benefit to [Mitchell] if [B.F.]
had been available and had testified.” 2 Having read B.F.’s testimony ourselves, we
find no clear error in this claim’s denial. Point 3 fails. Judgment affirmed.




1   We quote the motion court in pertinent part:
       There was never any dispute over the nature of the drugs or the quantity of the
       drugs. It is important to note that this case went to trial long before the
       Missouri Supreme Court came down with their opinion in State v. Pierce, 433
       S.W.3d 424 (Mo Banc 2014). The Pierce opinion was a substantial change in
       the law as to when a lesser included instruction should be given in a criminal
       case.
2Relevant because Mitchell had to show, among other things, that B.F.’s testimony “would
have produced a viable defense.” Cusumano, 495 S.W.3d at 236.
                                              2
GARY L. MITCHELL, JR.,                      )
                                            )
                      Appellant,            )
                                            )
       vs.                                  ) No. SD36227
                                            )
STATE OF MISSOURI,                          ) FILED: March 23, 2020
                                            )
                      Respondent.           )

                            CONCURRING OPINION
       I concur, but wish to address the prejudice issue not reached by the court.
       Analysis of error for not instructing down differs from analysis for resulting
prejudice. State v. Jensen, 524 S.W.3d 33, 40 n.5 (Mo. banc 2017). State v.
Jackson and cases early thereafter tended to give prejudice short shrift, 1 which
our supreme court soon sought to remedy, predictably confirming that Jackson
error raises a presumption of prejudice the state must “clearly” rebut to avoid
reversal. Jensen 524 S.W.3d at 38 & n.3; Smith, 522 S.W.3d at 226. But still
unclear is the full range of ways to do so. 2


1 See Jackson, 433 S.W.3d at 395 & n.4, discussed in State v. Prine, 456 S.W.3d 876,
883-85 (Mo.App. 2015)(Scott, J., concurring). See also Jensen, 524 S.W.3d at 38
(Jackson expressed no framework to analyze prejudice); State v. Smith, 522 S.W.3d
221, 226 n.7 (Mo. banc 2017)(Jackson did not discuss ways to rebut presumed
prejudice).
2 “Jackson does not discuss the various ways the State may overcome the presumption

of prejudice.” Smith, 522 S.W.3d at 226-27 n.7. There may be multiple ways. Id. See
also Jensen, 524 S.W.3d at 38 (Jackson fails to express framework to analyze
prejudice).
       Judge Fischer has championed a view that strong proof of the differential
element, in light of the jury instructions given and our presumption that jurors
follow those instructions, can rebut this presumed prejudice in appropriate cases. 3
I write to show how Jackson, Pierce, and their stated logic support this view.
       Jackson requires instructions on nested-lesser offenses if requested, even
if differential-element proof is viewed as “airtight, inescapable, or even absolutely
certain.” 433 S.W.3d at 399-400. In justification, Jackson hypothesizes a case
where differential-element proof would convince every reasonable juror of the
greater offense. Id. at 402-03. A lesser-offense instruction in that situation, per
Jackson, will not affect a “reasonable” jury because “it will convict the defendant
of the greater offense whether the lesser included offense instruction is given or
not.” Id. at 403. Instructing down in that scenario affects only an “unreasonable”
jury that honestly but unreasonably mis-views the evidence. Id. The Jackson
court saw no harm, and some benefit, in an instruction that helped “unreasonable”
jurors reach a sub-optimal but permitted verdict in that situation. Id.
       Jackson’s cited scenario addresses the theoretical and theoretically-rare
unreasonable jury. Far more common are cases with equally-convincing proof and
reasonable juries. Failure to instruct down in those trials still is error, but what
prejudice results? None. To reprise Jackson, the reasonable jury’s verdict is the
same “whether the lesser included offense instruction is given or not.” Id.
       Likewise, take Pierce’s hypothetical of “undisputed – even undisputable –
proof” that a defendant possessed 2,000 grams of cocaine when just two grams
constituted trafficking. 433 S.W.3d at 432. Just as in Jackson, the logic that calls
for instructing down, even in that situation, equally indicates that no prejudice
results from failure to do so. See Jackson, 433 S.W.3d at 403.
       Pierce purposely posed an extreme example (2 grams vs. 2,000). Yet drug
cases frequently have such “undisputed – even undisputable – proof” of a banned

3 See Smith, 522 S.W.3d at 233 & nn.1, 3 (Fischer, C.J., concurring and dissenting);

Jensen, 524 S.W.3d at 44 (Fischer, C.J., concurring and dissenting). Cf. Meiners v.
State, 540 S.W.3d 832, 842 (Mo. banc 2018)(Fischer, C.J., concurring in result)(opining
that PCR counsel was ineffective, but no prejudice because record showed no reasonable
probability that jury would have “gone down” to involuntary manslaughter even with the
requested instruction).

                                          2
substance’s nature and quantity that the defense tacitly concedes those elements.
In fact, that was so at Mitchell’s trial, as Counsel testified at the PCR hearing:
              Q: And we’ve marked that as Exhibit Number 4, I won’t have
           you look at it but she [crime lab witness] testified there was 50.3
           grams of powder cocaine, which is cocaine, hydrochloride and
           45.7 grams of cocaine base, does that sound about right?
              A: That sounds right.
               Q: Okay. So, it was just your presumption that a trafficking
           - or those lesser included instructions would not be justified;
           correct?
              A: As I say, it doesn’t seem to be a close call, 45 is great deal
           more than 24 and I know of no ground for attacking her assertion
           that there were 45 grams of crack cocaine.
       Like Jackson’s hypothetical, Counsel’s testimony strongly suggests that a
reasonable jury would (and in fact did) convict Mitchell as charged, regardless of
lesser-offense instructions, so he suffered no prejudice by failure to instruct down.
This logic, drawn straight from Jackson and Pierce, could properly support
error-but-no-prejudice conclusions in many drug trials and other cases of strong
differential-element proof. 4
       To recap, strong proof is irrelevant to Jackson error, but may be highly
relevant to the equally-critical issue of prejudice. True, trial courts must instruct
on lesser-nested offenses, even where that seems preposterous, and failure to do
so is error. We also presume resulting prejudice, insist the state clearly show
otherwise, and give the defendant the benefit of the doubt on that issue.
       All that said, we should not put parties, witnesses, and citizen jurors to the
expense and hassle of a retrial when strong trial evidence, the instructions given,
our presumption that jurors followed those instructions, and the verdict rendered
show “no reasonable probability” that instructing down would have changed
anything. Jensen, 524 S.W.3d at 38 n.3; Jackson, 433 S.W.3d at 395 n.4.

DANIEL E. SCOTT – CONCURRING OPINION AUTHOR

4E.g., State v. Vanlue, 577 S.W.3d 834 (Mo.App. 2019), where we reversed a 16-minute
jury verdict although the state “persuasively” urged that the record rebutted any presumed
prejudice and this court said “[i]t seems a stretch to think that instructing down … would
have changed anything.” Id. at 838.

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