                                                     In the
                                Missouri Court of Appeals
                                           Western District

                                                          
DAVID N. BRIGGS,                                          
                                                             WD76056
                     Appellant,                              OPINION FILED:
v.                                                        
                                                             August 12, 2014
STATE OF MISSOURI,                                        
                                                          
                    Respondent.                           
                                                          
                                                          


                     Appeal from the Circuit Court of Jackson County, Missouri
                             The Honorable James Dale Youngs, Judge

Before Division Two: Victor C. Howard, P.J., James Edward Welsh, and Anthony Rex Gabbert, JJ.


       David Briggs appeals the circuit court's denial of his Rule 29.15 motion for post-

conviction relief in which he alleged ineffective assistance of trial counsel. We affirm.

                                                   Background

       Briggs was arrested and charged with one count of first-degree murder (§ 565.020,

RSMo1), one count of first-degree robbery (§ 569.020), and two counts of armed criminal action

(§ 571.015), in connection with the January 24, 2008, robbery and murder of a fifty-one year old

man.




       1
           Statutory references are to the Revised Statutes of Missouri (RSMo) 2000, unless otherwise noted.
          Briggs testified at his trial that he was eighteen years old and had been living with the

victim since November 2007. He stated that the victim took him in when he did not have a place

to stay. Briggs said that he initially regarded the victim as a father figure. Eventually, Briggs

testified the victim let Briggs know that he wanted a sexual relationship with him, a situation

with which Briggs was "not comfortable."

          Briggs stated that on the morning of January 24, 2008, he woke up to find the victim on

top of him trying to pull his pants down. Briggs pushed him away, grabbed his school clothes,

and drove the victim's vehicle to school. During the day, the victim left multiple messages on

Briggs's cell phone indicating that he was upset with Briggs for driving the victim's vehicle to

school.

          That evening, Briggs drove to the victim's apartment, accompanied by Derrick Wooten

and Joyce Livingston. Briggs said that he went there to approach the victim about "the

homosexual thing" and that he wanted Wooten to come along in case of a fight. Briggs also

planned to retrieve his own belongings and to steal another of the victim's cars. When they

arrived, Briggs went up to the apartment, and Wooten and Livingston stayed in the car. Briggs

carried Wooten's .38 caliber handgun with him. Briggs knocked on the door, and the victim

opened the door and started arguing with Briggs. Briggs then began throwing punches, and the

two men got into a fight. At one point, the victim kicked Briggs's chest, separating the two.

Briggs then ran to the closet and grabbed a .45 caliber handgun.

          Briggs then walked downstairs where the victim was knocking on a neighbor's door for

help. Briggs fired the .45 caliber handgun at the victim until the gun would not fire anymore.

Briggs said that he "freaked out" and ran around the apartment building. He then ran back to the

victim's apartment to grab the keys to the victim's other vehicle. He saw the victim and shot him

                                                    2
several more times with Wooten's .38 caliber handgun. He stated: "Everything was just

happening fast. Nothing clear was going through my mind."

       Briggs's statement to the police (a videotape of which was played at trial) was consistent

with his trial testimony. Briggs told the police that he intended to confront the victim and that he

planned to fight with the victim and to steal his cars. After first shooting the victim with the .45

caliber handgun, and then running around the apartment building, Briggs said that he returned

and found the victim moving around, so he shot him with the .38 caliber handgun. He told the

police that something in the back of his head told him: "You got to finish it off. You started it

and got to finish it." Briggs said that he then ran back to the apartment to retrieve the victim's car

keys and wallet. Briggs, Livingston, and Wooten drove off with the two cars, which they later

abandoned in a parking lot. Briggs said that he threw both guns into the river.

       The medical examiner testified that the victim had been shot ten times and that those

gunshot wounds were the cause of death. When police found the victim's two vehicles, they

retrieved Briggs's book bag from the trunk of one of them. The bag contained the car titles to the

victim's two cars. At Livingston's home, the police found credit cards, a driver's license, and a

wallet belonging to the victim. At Wooten's home, they found the .38 caliber handgun Briggs

had utilized. A police firearms examiner verified that it was the gun that had fired bullets

recovered from the crime scene and from the morgue. The .45 caliber handgun was not found.

       At the close of the evidence, the circuit court submitted three verdict directors related to

the murder charge, for first-degree murder, second-degree murder, and second-degree felony

murder. The jury convicted Briggs of first-degree murder, first-degree robbery, and two counts

of armed criminal action. The court sentenced Briggs to consecutive prison terms of life without



                                                  3
parole, ten years, three years, and three years, respectively. This court affirmed Briggs's

convictions and sentences on direct appeal in State v. Briggs, 318 S.W.3d 203 (Mo. App. 2010).

       Briggs timely filed a pro se Rule 29.15 motion for post-conviction relief on December 7,

2010. On March 15, 2011, the motion court appointed the public defender to represent him, and

appointed counsel filed an amended motion on June 14, 2011. The motion alleged, inter alia,

that trial counsel was ineffective for "[f]ailing to request verdict-directing instructions that

modified the verdict director for murder in the second degree and instructed the jury on

voluntary manslaughter." The motion alleged eight other claims of ineffective assistance.

       At the evidentiary hearing, Briggs's trial counsel testified regarding his trial strategy that

"[i]t was pretty obvious to us we'd be going to trial arguing Murder II" if the defense could not

negotiate a guilty plea to second-degree murder. Counsel stated that he did not ask for a

voluntary manslaughter instruction because he did not believe it would be allowed given that

"voluntary manslaughter is not a lesser included offense of felony murder." Counsel agreed that

voluntary manslaughter is a lesser-included offense of both first-degree and second-degree

murder. He stated: "If it had been just charged as traditional first-degree murder, I would've

requested voluntary manslaughter. I believe that the evidence of a fight would've been sufficient

to ask for a voluntary manslaughter instruction." On cross-examination, counsel stated that he

did not believe that there was evidence to acquit of felony murder and, in light of that, he did not

believe that the circuit court would have submitted a voluntary manslaughter instruction.

       The circuit court denied Briggs's post-conviction motion. With regard to his claim that

counsel was ineffective for failing to request an instruction on voluntary manslaughter, the court

concluded that Briggs "failed to present evidence that a lesser offense could have been properly

submitted or that there was a basis for the jury to return a verdict on the lesser offense."

                                                   4
                                        Standard of Review

       Our review of the circuit court's ruling on a Rule 29.15 motion is limited to determining

whether its findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k).

Findings and conclusions are clearly erroneous if we are "left with a definite and firm impression

that a mistake has been made." Johnson v. State, 406 S.W.3d 892, 898 (Mo. banc 2013).

                                             Discussion

       In his first point on appeal, Briggs contends that the circuit court erred in denying his

post-conviction motion because his trial counsel rendered ineffective assistance by failing to

request that the court instruct the jury on the lesser-included offense of voluntary manslaughter.

Briggs claims that there is a reasonable likelihood that the outcome of the trial would have been

different if the jury had been instructed on voluntary manslaughter.

       To prevail on an ineffective assistance of counsel claim, the movant must show, by a

preponderance of the evidence, that counsel failed to satisfy the test set forth in Strickland v.

Washington, 466 U.S. 668, 687 (1984). Johnson, 406 S.W.3d at 898. That test requires the

movant to establish both (1) that his attorney's performance "did not conform to the degree of

skill, care, and diligence of a reasonably competent attorney," and (2) that his attorney's failures

prejudiced his case. Tisius v. State, 183 S.W.3d 207, 211-12 (Mo. banc 2006) (citing Strickland,

466 U.S. at 687). To satisfy the performance prong of Strickland, the movant must overcome the

strong presumption that counsel acted professionally and that any challenged action was based

on sound trial strategy. Id. at 211. To prove prejudice, he must show that, "but for counsel's poor

performance, there is a reasonable probability that the outcome of the court proceeding would

have been different." Id. at 212.



                                                  5
         The crimes at issue in this case are defined in Chapter 565. A person commits first-

degree murder, "if he knowingly causes the death of another person after deliberation upon the

matter." § 565.020.1, RSMo (emphasis added). A person commits conventional second-degree

murder, if he "[k]nowingly causes the death of another person or, with the purpose of causing

serious physical injury to another person, causes the death of another person." § 565.021.1(1).

A person commits second-degree felony murder if he "[c]ommits or attempts to commit any

felony, and, in the perpetration . . . of such felony . . . , another person is killed as a result of the

perpetration . . . of such felony." § 565.021.1(2). Voluntary manslaughter is committed when a

person "[c]auses the death of another person under circumstances that would constitute murder in

the second degree under [section 565.021.1(1)], except that he caused the death under the

influence of sudden passion arising from adequate cause."2 § 565.023.1(1) (emphasis added).

         Voluntary manslaughter is a lesser-included offense of both first-degree and second-

degree murder. § 565.025.2. Pursuant to section 556.046, a trial court is required to give an

instruction for a lesser-included offense "when the evidence provides a basis both for the

acquittal of the greater offense and the conviction of the lesser offense." See State v. Johnson,

284 S.W.3d 561, 575 (Mo. banc 2009); § 556.046.3, RSMo 2007 Cum. Supp. In two recent

direct criminal appeals, State v. Jackson, ---S.W.3d---, No. SC93108 (Mo. banc June 24, 2014),

and State v. Pierce, ---S.W.3d---, No. SC93321 (Mo. banc June 24, 2014), the Missouri Supreme




         2
         "Sudden passion" is defined as "passion directly caused by and arising out of provocation by the victim . . .
which passion arises at the time of the offense and is not solely the result of former provocation." § 565.002(7),
RSMo. "Adequate cause" means "cause that would reasonably produce a degree of passion in a person of ordinary
temperament sufficient to substantially impair an ordinary person's capacity for self-control." § 565.002(1), RSMo.


                                                          6
Court held that when the defense requests an instruction on certain3 lesser-included offenses, the

trial court must submit it. This case differs from Jackson and Pierce, however, in that the jurors

in those cases apparently were not given any lesser-included offense instructions, leaving them

with an "all-or-nothing" choice.4 In contrast, the jury in this case was instructed on first-degree

murder, conventional second-degree murder, and second-degree felony murder and chose to

convict Briggs of first-degree murder. Additionally, while Jackson and Pierce clearly control the

issue of when a requested instruction ought to be given by the court, in the case at bar, the issues

are the ineffectiveness of counsel for failure to request a lesser-included instruction and the

prejudice, if any, as a result of that failure.5

         As noted, to prevail on a claim of ineffective assistance of counsel, the movant must

satisfy both the performance prong and the prejudice prong of Strickland. Sanders v. State, 738

         3
          These certain cases are referred to as nested offenses. A "nested" lesser-included offense is one that
consists of a "subset" of the elements of the charged offense, where the "differential element" (i.e., the element
required for the charged offense but not for the lesser offense) is one on which the State bears the burden of proof.
Jackson, No. SC93108, slip op. at 1-2. We need not and do not determine whether voluntary manslaughter is a
nested offense of conventional second-degree murder.
         4
           See also McNeal v. State, 412 S.W.3d 886, 888-89 (Mo. banc 2013), where the 29.15 movant claimed that
counsel was ineffective for not submitting a trespass instruction, leaving the jury with an all-or-nothing choice
between a conviction for burglary or acquittal, and the jury chose conviction. There, the circuit court denied the
29.15 motion without an evidentiary hearing, and the Supreme Court reversed and remanded for an evidentiary
hearing on that claim. Id. at 893. The Court opined that "the failure to provide the jury with the option of a lesser-
included offense deprives the defendant of a fair trial, even if the jury ultimately convicts the defendant of the
greater offense." Id. at 892. That conclusion was based primarily on the theory that, where the evidence shows that
"the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Id.
As noted by the dissent in McNeal, this runs contrary to the presumption that juries follow the instructions explicitly.
See id. at 895-96 (Wilson, J., dissenting) (noting that the majority opinion fails to adhere to the presumption that the
"jury acted according to law" and "fails to exclude [and in fact, relies on] the possibility of arbitrariness, whimsy,
caprice, 'nullification,' and the like") (citing Strickland, 466 U.S. at 694-95)). In any event, the type of prejudice that
might have existed in McNeal did not exist here where the jury was presented with two lesser-included offense
instructions, not an all-or-nothing choice. Moreover, unlike this case, the issue in McNeal was whether or not the
movant was entitled to an evidentiary hearing on his claim.
         5
          In a 29.15 proceeding, both we and the motion court have the benefit of hindsight when assessing
prejudice, but a trial court when instructing a jury must account for the proposition that the State may fail to carry
the burden of persuasion placed upon it by law. Further, in a post-conviction proceeding, the movant bears the
burden of proving that he was prejudiced by counsel's alleged failure, but on direct appeal, when a trial court fails to
give a required instruction, prejudice may be presumed.

                                                            7
S.W.2d 856, 857 (Mo. banc 1987). In assessing whether the movant has satisfied the prejudice

prong of Strickland, "the question is whether there is a reasonable probability that, absent the

errors, the factfinder would have had a reasonable doubt respecting guilt." 466 U.S. at 695. "A

reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at

694. "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." Id. at 691. As

explained in Strickland, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, . . . that course should be followed." Id. at 697. Such is the case

here.

         Briggs contends that he was prejudiced because, if the voluntary manslaughter instruction

had been given, there is a reasonable likelihood (based on the evidence of his confusion and

anger over the unwanted sexual advance, the repeated phone calls from the victim, and the fight

preceding the shooting)6 that the jury would have found that he acted "under the influence of

sudden passion arising from adequate cause" and convicted him on that lesser offense. Briggs

also claims that if the jury had had "three levels of homicide to consider, there was a reasonable

probability that the jury might have compromised and found [him] guilty of second degree

murder."

         First, Briggs does not persuade us that the mere addition of a voluntary manslaughter

instruction would have caused the jury to "compromise" on a second-degree murder conviction

(as opposed to following the instructions and the law, as we must presume all juries do, see


         6
            The State contends that these facts would not support a finding of sudden passion arising from adequate
cause, in that Briggs went to the victim's house armed intending to confront the victim and steal his cars, Briggs was
the initial aggressor in the physical altercation and the victim was unarmed, and the shooting occurred several hours
after the unwelcome sexual advance.

                                                          8
Strickland, 466 U.S. at 694-95). But, in any event, Briggs's theories of prejudice are negated by

the fact that the jury had three versions of homicide to choose from (i.e., first-degree murder and

two variations of second-degree murder), and chose to convict on the highest offense submitted.

As the circuit court noted,7

         [the] movant was not prejudiced because the issue of whether movant deliberately
         killed the victim was adequately presented to the jury in the form of the verdict
         directing instruction for second degree murder--a proposition [that] the jury
         rejected by convicting movant of murder in the first degree.

         We agree. In State v. Petary, 781 S.W.2d 534, 544 (Mo. banc 1989),8 where the jury was

instructed on first-degree and conventional second-degree murder and convicted the defendant of

first-degree murder, our Supreme Court held that the defendant was not harmed by the absence

of an instruction on second-degree felony murder, in that such an instruction "would have been

superfluous." The Court further held that "[b]ecause the instruction would have been

superfluous, there is also no ineffective assistance of counsel with respect to his claim." Id.9

Here, the jury could have convicted Briggs of second-degree murder or second-degree felony


         7
          The court reached this conclusion in response to Briggs's related claim, in Point #2 of his amended 29.15
motion, that trial counsel was ineffective for failing to question potential jurors about their ability to consider
voluntary manslaughter as an alternative to first-degree murder. The finding is equally applicable to this claim.
         8
          Vacated and remanded on other grounds, 494 U.S. 1075 (1990), reaffirmed, 790 S.W.2d 243 (Mo. banc),
cert. denied, 498 U.S. 973 (1990).
         9
           We note that our Supreme Court has previously held that the failure to give an additional lesser-included
offense instruction is neither erroneous nor prejudicial when instructions for the greater offense and one lesser-
included offense are given, and the defendant is found guilty of the greater offense. See, e.g., State v. Johnson, 284
S.W.3d 561, 575-76 (Mo. banc 2009); State v. Glass, 136 S.W.3d 496, 515 (Mo. banc 2004); State v. Jones, 979
S.W.2d 171, 185 (Mo. banc 1998). As we explained in State v. Nutt, the rule applied in Johnson, Glass, and Jones is
subject to an exception where the lesser offense that was actually submitted at trial did not "test" the same element
of the greater offense that the omitted lesser offense would have challenged. 432 S.W.3d 221, 224-25 (Mo. App.
2014) (citing State v. Frost, 49 S.W.3d 212 (Mo. App. 2001)). But that exception is not applicable here: the
conventional second-degree murder instruction that was given at trial already "tested" the element of deliberation
required for a first-degree murder conviction. The omitted voluntary manslaughter instruction did not challenge a
different element of first-degree murder. Instead, a voluntary manslaughter instruction would have required the jury
to find all of the elements of conventional second-degree murder, but to also find that Briggs acted under the
influence of sudden passion.

                                                          9
murder if the jurors had had any doubt about whether he knowingly caused the victim's death

after deliberation, but the jury found him guilty of first-degree murder.

       Given that the jury convicted Briggs of first-degree murder when it could have convicted

him of either of the two types of second-degree murder, and given the overwhelming evidence

that supports that conviction, even if trial counsel had requested an instruction on voluntary

manslaughter and the instruction had been given, there is no reasonable probability that the

outcome of the trial would have been different. Thus, Briggs has not proven prejudice, and the

circuit court did not clearly err in denying his motion for post-conviction relief. Point denied.

       In Point II, Briggs claims that the circuit court erred in failing to inquire into whether

Briggs's post-conviction counsel abandoned him by failing to timely file an amended motion and

by filing an amended motion that did not properly assert Briggs's post-conviction claims and was

so patently defective that it amounted to a nullity.

       Briggs did not present his claim of abandonment to the circuit court. Generally, a matter

not presented to the post-conviction court is not preserved and may not be presented for review

on appeal. Logan v. State, 377 S.W.3d 623, 626 (Mo. App. 2012); White v. State, 366 S.W.3d

103, 104 (Mo. App. 2012). Our review of the denial of post-conviction relief is limited to a

determination of whether the motion court's findings and conclusions are clearly erroneous. See

Linder v. State, 404 S.W.3d 926, 930 (Mo. App. 2013); Rule 29.15(k). Because the issue of

abandonment by post-conviction counsel was never raised before the circuit court, no findings or

conclusions were made on this issue, and, thus, there is nothing for us to review on appeal.

       Rule 84.13 authorizes plain error review of unpreserved errors in some instances, but

there is no plain error review from the denial of a post-conviction motion. White, 366 S.W.3d at

104 (citing Hoskins v. State, 329 S.W.3d 695, 696 (Mo. banc 2010)). In Hutton v. State, 345

                                                 10
S.W.3d 373, 377 (Mo. App. 2011), we explained that an abandonment claim is no exception to

that rule because, even though the movant would have no reason to raise abandonment in his pro

se motion (in that he would not be aware that post-conviction counsel would ultimately abandon

him), he could bring the issue of abandonment to the court's attention.10 This would give the

movant the opportunity to put his arguments before the circuit court, and, if granted, this court

would then have a clear record from which to review the motion court's ruling on the

abandonment issue. Id. at 377-78; see also Linder,11 404 S.W.3d at 929-30 (where appellant

failed to raise abandonment before the motion court, this court held that had appellant filed a

"motion to reopen,"12 it would have opened the door to appellate review).

         Here, because Briggs did not present his claim that he was abandoned by post-conviction

counsel to the circuit court, and the circuit court was not required to review the issue sua sponte,

there are no findings or conclusions for us to consider. Thus, we cannot possibly reverse under

the standard of review in Rule 29.15(k).

         Point II is denied.




         10
           Our Supreme Court recently clarified that a late filing may be accepted when a movant has been
abandoned by post-conviction counsel, but that a "motion to file an untimely post-conviction relief motion is not the
same as filing a motion to 're-open.'" Eastburn v. State, 400 S.W.3d 770, 774 (Mo. banc 2013). "While parties may
have referred to this motion as one to 're-open' the post-conviction proceedings based on abandonment, this
nomenclature does not exist in our rules and should not be used henceforth." Id.
         11
           This court opined in Linder that the movant could have filed a motion to amend the judgment under Rule
78.07(c) if she desired findings on the issue of abandonment. 404 S.W.3d at 930. Rule 78.07(c) provides: "In all
cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily
required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review."
Here, Briggs filed a Rule 78.07 motion, but it did not, at any point, raise a claim that Briggs had been abandoned by
post-conviction counsel; nor did it ask for findings and conclusions on that issue.
         12
              See fn. 10, supra.

                                                          11
                                          Conclusion

       We affirm the circuit court's judgment denying post-conviction relief.




                                                    /s/ JAMES EDWARD WELSH
                                                    James Edward Welsh, Judge

All concur.




                                               12
