 

In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
JEFFREY A. CHANDLER, ) No. ED103 583
)
Appellant, ) Appeal from the Circuit Court of
) Lincoln County
vs. ) l4L6-CC()0097
)
STATE OF MISSOURI, ) Honorable J ames D. Beek
)
Respondent. ) Filed: October 18, 2016

OPINION

Jeffrey A. Chandler Was convicted, after a bench trial, of the felony charges of two counts
of second-degree Statutory sodomy, one count of second-degree statutory rape, and one count of
incest. The trial court sentenced Chandler to three consecutive seven-year prison terms for the two
counts of second»degree statutory sodomy and the count of second-degree statutory rape, and to a
concurrent four-year prison term for the count of incest. Chandler appealed the judgment of
conviction in State v. Chcmdler", 429 S.W.3d 503 (Mo.App.E.D. 2014), and this Court affirmedl
Chandler then filed a Rule 29.15 motion for post-conviction relief. The motion court denied it
after an evidentiary hearing We now consider Chandler’s appeal of the motion court’s ruling.

Arguing that the motion court clearly erred in denying his Rule 29.15 motion, Chandler
raises one point on appeal: that trial counsel rendered ineffective assistance by failing to object
under Missouri v. Sez'berf, 542 U.S. 600 (2004) to a police detective’s trial testimony that he did

not believe Chandler’s denials of committing the charged offenses because his c‘rnicro-gestlu'es”

 

during interrogation indicated that he was not telling the truth. Because the motion court did not
clearly err in determining that Seibert does not support Chandler’s ineffective assistance claim,
and thus that he is not entitled to any relief, We affirm.
Standart} of Review

We review the denial of a Rule 29.15 motion for post-conviction relief only to determine
whether the motion court’s findings and conclusions are clearly erroneous Rule 29.15(1<)1;
Mallow v. Smfe, 439 S.W.3d 764, 768 (Mo.banc 2014). Findings and conclusions are clearly
erroneous only if, after reviewing the entire record, we are left with the definite and firm
impression that a mistake has been made. Id. We presume that the motion court’s findings are
correct. Id.

Discussion
The Strz'cklcmd Test

We apply the two-part St)'ick]and test to ineffective-assistance-of-counsel claims for post-
conviction relief under Rule 29.15. See Sfr'i`cklrmd v. Washi'ngton, 466 U.S. 668, 687 (1984);
Johnson, 406 S.W.3d at 898. To be entitled to relief, the movant must show by a preponderance
of the evidence that (l) his counsel failed to exercise the level of skill and diligence that a
reasonably competent counsel would in a similar situation, and (2) he was prejudiced by that
failure. Jolmsor?, 406 S.W.3d at 898-99. To overcome the strong presumption that counsel’s
conduct was reasonable and effective, the movant must identify specific acts or omissions of
counsel that, in light of all the circumstances, fell outside the Wide range of professionally

competent assistancel ld. To show prejudice, the movant must demonstrate that there is a

 

l All rules references are to the Missouri Supreme Court Rules (2016).

2

 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different Id.
Failure to Obiect under Ser`bert to Detective’s Testimonv about Chandler’s “Micro-gestures”

In his sole point on appeal, Chandler claims that the motion court clearly erred in denying
his Rule 29.15 motion because trial counsel rendered ineffective assistance by failing to object
under Mz`ssour'i v. Seiberf, 542 U.S. 600 (2004) to a police detective’s trial testimony that he did
not believe Chandler’s denials of committing the charged offenses because his “micro-gestures”
during interrogation indicated that he Was not telling the truth. We disagree because the motion
court did not clearly err in determining that Seibcrf does not support Chandler’s ineffective
assistance claim, and thus that he is not entitled to any relief.

ln Ser'bert, the Supreme Court of the United States held that a defendant’s statement is not
properly admitted, absent specific curative measures, where it has resulted from a particular two-
step interrogation technique-min Which police twice question the defendant, first without and then
With the Mi)'cma'a warningsz, each time eliciting the same statement~and the technique has been
used in a calculated way to undermine the thndc: warnings. Sce Seiberf, 524 U.S. at 621
(Kennedy, J., concurring) (controlling opinion) (“When an interrogator uses [the above-described]
deliberate, two-step strategy, predicated upon violating Mircmda during an extended interview,
postwarning statements that are related to the substance of prewarning statements must be
excluded absent specific, curative steps.”). F or several reasons, Seibert’s holding does not support

Chandler’s claim here.

 

2 See anda v. Arizo)m, 384 U.S. 436 (1966) (holding that “unless other fully effective means
are devised to inform accused persons of their right of silence and to assure a continuous
opportunity to exercise it, . . . [p]rior to any [custodial interrogation], the person must be warned
that he has a right to remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either retained or appointed”).

3

 

Most important, in this case Chandler admits that there is no evidence that the police
detective who interrogated him used the two-step interrogation technique condemned in Seibert.
Chandler simply argues that the interrogation techniques the detective did use had the same effect
on his understanding of his Mimnda rights. But not even that much is true. Unlike the two-step
interrogation in Seibert, the detective’s questioning in this case did not deprive Chandler of a free
and rational choice whether to exercise his Miranda rights, see Seibert, 542 U.S. at 611 (plurality
opinion) (“Mr`)‘anda addressed ‘interrogation practices . . . likely . . . to disable [an individual] from
making a free and rational choice’ about speaking, and held that a suspect must be ‘adequately and
effectively’ advised of the choice the Constitution guarantees.” (quoting Mr`randa, 384 U.S. at
464-65, 467) (emphasis added)), and thus no unconstitutional coercion resulted here.

ln this case, Chandler was arrested for committing sexually deviant acts against his 16-
year-old daughter, and he was questioned by a police detective both before and after receiving the
Mii'anda warnings However, prior to giving the warnings the detective did not ask any questions
regarding the allegations of Chandler’s criminal offenses lnstead, for approximately 20 minutes
the detective discussed only Chandler’s background, his employment, and his family dynamicsl
When the detective finally gave Chandler the Mimnc]a warnings, Chandier signed an “advice of
rights” form stating that he understood all of his Mt`rcmda rights and had elected to waive them.
Only then did the detective begin to question Chandler regarding the allegations against him.

At trial, the prosecutor asked the detective to describe his interview with Chandler:

PROSECUTOR: How did your interview with the defendant begin?

DETECTIVE: Basically Mr. Chandler’s demeanor was very calm and just

nonchalant. In regards to that, basically denied allegations once We got into what

the allegations were. Every time I would bring a specific allegation up, he would

deny it. And then as l would follow up with it, he_Mr. Chandler would make
micro-gestures

 

Defense counsel objected to the detective’s testimony on the grounds that there was “no foundation
laid that [the detective] [was] an expert in any kind of micro-gestures or hidden body language or
anything of that nature.” The prosecutor responded that the detective was testifying merely “as to
what he personally observed,” and the trial court overruled defense counsel’s objection. The
prosecutor then continued with the detective:

PROSECUTOR: Sir, as part of your training, and particularly in the training that

you just referenced, do you learn about verbal and nonverbal cues?

DETECTIVE: Yes, sir.

PROSECUTOR: Can you explain the difference between the two?

DETECTIVE: Verbal and nonverbal, basically when you ask a question, basically

if someone that is deceptive would pause, repeat the question. Basically what that

tells us in our mind is that they’re trying to come up with an answer or trying to

come up with a different answer than what their brain already knows is the truth.
Nonverbal is basically movements of their body, how they position

themselves, how they adjust themselves, and that’s all part of the rapport building

What we’re establishing when we’re doing the nonchalant and nonstress questions

is we’re establishing What their baseline is, basically what their body mechanics

are, how they’re sitting, this, that, and the other. And then what we’re trained to do

is notice it when we ask a stress question, how their body changes when we ask that

hot question, basically what they do, basically it’s their tell.

PROSECUTOR: Okay. And how did Mr. Chandler react to a stress question_

generally?

DETECTIVE: Generally he would nod his head up and down.

PROSECUTOR: Can you indicate how_what you mean by that?

DETECTIVE: Basically he would say no, but he would nod his head up and down,

which is a micro-gesture telling us that, yes.

In light of this testimony, Chandler argues that the detective’s questioning deprived him of
a free and rational choice whether to waive his Mz'randa rights because the detective
unconstitutionally coerced him by “reusing what was learned during the pre-warning stage to get
[Chandler] to incriminate himself after the rl/{iranda warnings.” This argument is merely a
backhanded attempt to bring Chandler’s case within Sez'bert’s restrictions, and it fails. In
substance, Chandler contends that the detective’s questioning unduly pressured him to perform or

not perform physical movements_i.e., express body language¥while speaking that, both before

 

and after the Miranda warnings, corresponded to whether he was telling the truth. This theory
takes more than a moment to comprehend but does not hold up to the slightest examination

Basically, Chandler claims that the detective’s questioning coerced him into nodding his
head when he denied committing the criminal offenses perpetrated against his daughter. However,
we fail to see how the detective’s questioning placed any such pressure on Chandler. Chandler
had no reason to suspect that during the pre-warning questioning, the detective was drawing any
particular conclusions about Chandler’s body language while speaking, such as that Chandler
keeping his head still while answering a question meant that he was telling the truth; accordingly,
after the Miranda warnings, Chandler had no reason to feel pressured by the detective to express
any particular body language, whether by nodding or keeping his head still, when denying that he
committed the criminal offenses perpetrated against his daughter. Thus, we lack any indication
that the detective’s questioning was coercive, or that the Mirmidrz warnings the detective gave to
Chandler were unlikely to be effective in alerting him to his right not to incriminate himself with
respect to his offenses in this case.

Moreover, in Smte v. Hughes, 272 S.W.3d 246, 253-54, 256 (Mo.App.W.D. 2008), this
_ Court’s Western District established that where the defendant does not make any allegedly
incriminating statements prior to receiving the Mr`mnda Warnings, Seibert’s holding regarding the
two-part interrogation technique addressed in that decision is “inapplicable” and does not call for
the suppression of evidence obtained after giving the warnings Like the Hughes court, while
“[w]e are not blind to the fact that an evident purpose of the officers’ pre-waiver questioning of
[the defendant] (beyond acquiring background information, and gauging his intellectual capacity,
literacy, and lucidity) was to build a rapport to facilitate [his] further interrogation,” we note that

here, as in Hu hes, “nothin in the re-waiver discussion undermined rnisre resented, or
$

 

otherwise rendered ineffective the Mimnda warning [the defendant] was ultimately given, or the
waiver he ultimately executed (nor did the officers intend to achieve this effect, according to the
[motion] court’s findings).” Hughes, 272 S.W.3d at 255.

And last, as just noted, the police detective who interrogated Chandler did not use
interrogation teclmiques calculated to circumvent Chandler’s protections under Miranda. The
detective’s initial interrogation of Chandler was not conducted to obtain statements to be used
against Chandler, and the detective did not address anything but background information and other
topics not relating to the charged offenses until after giving Chandler the Miranda warnings
Accordingly, we cannot say that Seiberr required the suppression of the detective’s testimony
about any of Chandler’s body language or “micro-gestures” Point denied.

Conclusion

For the reasons stated above, we affirm the judgment of he mo `on court.

\\\

Jarnes d,l’\residi `Judge \

Kurt S. Odenwald, J., and
Gary M. Gaertner, Jr., J., concur'.

 

