                                                    In the
                               Missouri Court of Appeals
                                           Western District
 FRANK JINDRA,                                            )
                                                          )
                     Appellant,                           )    WD81689
                                                          )
 v.                                                       )    OPINION FILED: July 30, 2019
                                                          )
 STATE OF MISSOURI,                                       )
                                                          )
                    Respondent.                           )

                 Appeal from the Circuit Court of Howard County, Missouri
                            The Honorable Scott A. Hayes, Judge

 Before Division One: Victor C. Howard, Presiding Judge, Lisa White Hardwick, Judge
                              and Gary D. Witt, Judge

       Frank Jindra ("Jindra") brings this appeal from Howard County Circuit Court

challenging the motion court's denial of his Rule 29.151 motion alleging ineffective

assistance of counsel following an evidentiary hearing. Jindra argues that the motion court

erred in denying his Rule 29.15 motion because his trial counsel ("Trial Counsel") was

ineffective in failing to call a witness that he believes would have corroborated his defense.

Jindra further argues that the motion court erred in denying his Rule 29.15 motion because

Trial Counsel was ineffective in failing to thoroughly investigate a note in the discovery



       1
           All rule references are to Missouri Supreme Court Rules (2018), unless otherwise indicated.
handwritten by Officer Alexandria Leiva ("Officer Leiva") which provided more clarity as

to the target of his threatening statements. We affirm.

                                    Statement of Facts

       On February 23, 2015, Jindra filed in Boone County Circuit Court adult abuse

petitions pursuant to Section 455.007 et. seq., requesting ex parte orders of protection

against two of his tenants. He filed the petitions in person and deputy court clerk Latoya

Gatewood ("Gatewood") received the filings. Judge Leslie Schneider ("Judge Schneider")

denied the requests for ex parte relief in the petitions the following day but set the matters

for hearing on the request for full orders of protection. Jindra called the courthouse to

check the status of his petitions and Gatewood informed him that they had been denied but

that a hearing had been set. Jindra expressed concern about his relationship with his tenants

and Gatewood advised him to contact law enforcement. Jindra asked Gatewood which

judge had denied his petitions and she told him that it had been Judge Schneider. Jindra,

appeared very frustrated and angry and told Gatewood that, "[Judge Schneider] would be

on the NBC 17 news," and that he was "going to get his gun." Gatewood, believing the

statements to be threats toward Judge Schneider, then ended the conversation and called

Judge Schneider who told her to contact the court Marshals.

       The Boone County Sheriff's Department and court marshals were contacted. Judge

Schneider did a casenet search to see what she could learn about Jindra and determined

that an attorney in her husband's law firm had previously represented him in a prior order

of protection case. She contacted her husband, Tom Schneider ("Mr. Schneider") regarding

Jindra's statements to Gatewood and he advised her to take the threat seriously. Jindra had

                                              2
previously been represented by Curt Branson ("Branson") of Jones, Schneider, & Stevens

law firm where Mr. Schneider was a senior partner.

       Beginning early the same day, Jindra called the Jones, Schneider, & Stevens law

firm multiple times requesting to speak with Branson.         After his conversation with

Gatewood, he called the firm requesting to speak with Mr. Schneider. The receptionist,

Dena McMasters ("McMasters") told Jindra that Mr. Schneider was not available and he

continued to hang up and call back repeatedly. McMasters asked Jindra why he needed to

speak with Mr. Schneider and Jindra responded that it was because he was married to Judge

Schneider. During the course of the many phone calls, Jindra became increasingly angry,

upset, loud and belligerent. Jindra told McMasters that the firm had, "a really nice private

parking lot, and that … maybe [they] would like to have happen to [them] what had

happened to him in his parking lot in [their] nice parking lot" and then hung up. When

McMasters relayed the statement Jindra made about the parking lot to Branson, he advised

her that based on other knowledge he had of Jindra that the statement should be considered

a threat. Approximately 20-30 minutes after Judge Schneider informed Mr. Schneider

about the threats, Jindra's phone call was put through to Mr. Schneider. As soon as Mr.

Schneider learned that it was Jindra on the phone, he informed Jindra "I can't talk to you"

and hung up.

       Law enforcement officers were dispatched to Jindra's residence.          When they

knocked, Jindra opened the door while holding a rifle. The officers drew their weapons

and Jindra was ordered to drop his rifle. Instead he passed the rifle back and forth between



                                             3
his hands before finally surrendering it to an officer. He was read his Miranda2 rights and

agreed to speak with the officers. He told the officers that he had called the courthouse

and spoken with a woman who informed him Judge Schneider had denied his petitions. He

admitted to making the statements to Gatewood and he admitted to calling Mr. Schneider,

"to get him to talk to his wife and see reason." Jindra acknowledged he told the court clerk

that he owned a rifle and that Judge Schneider would end up on the news. He also said that

he did not make threats what he made were promises. He stated that he promised he "would

shoot them in the legs and not kill them." He did not clarify who he was referring to when

he said he would shoot someone in the legs.

       Jindra was charged with two counts of the Class C Felony of tampering with a

Judicial Officer; Count I regarding the statements he made to Gatewood towards Judge

Schneider and Count II for his statements to McMasters while attempting to contact Mr.

Schneider. The jury found Jindra guilty and he was sentenced to one year for Count I and

six months in county jail for Count II, with the sentences to run consecutively. The Court

suspended execution of the sentence on Count II and placed Jindra on a five-year term of

probation.

       Jindra's convictions were affirmed on direct appeal to this Court. State v. Jindra,

504 S.W.3d 187, 192 (Mo. App. W.D. 2016). In his amended Rule 29.15 motion Jindra

argues, in pertinent part, that Trial Counsel erred in failing to thoroughly investigate and

call Branson as a witness and Trial Counsel failed to thoroughly investigate and determine



       2
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                                      4
the author of a handwritten note that was included in discovery. The note stated, "said had

rifle, said wasn't going to kill tenants, but shoot in legs."

         The motion court held an evidentiary hearing on February 26, 2018 ("Motion

Hearing"). Branson testified at the Motion Hearing that he was called the day after "the

incident" and during that phone call, Jindra told Branson that if "[Branson] didn't protect

him and the court didn't protect him, he'd get a gun and protect himself."3 Branson testified

that it was likely the tenants that Jindra was afraid of and wanted protection from but

Branson couldn't say for sure. Trial Counsel also testified at the hearing. Trial Counsel

testified that the decision not to call Branson as a witness was trial strategy because it may

have had a "more negative impact than a positive impact." Trial Counsel also testified that

he did not know who wrote the handwritten note in the file but he did ask opposing counsel

at trial and counsel said she did not know. Trial Counsel testified that he believed he also

asked Gatewood if she was the author of the note but could not recall for sure. He also

testified that he was not sure if he asked Officer Leiva if she was the author and that while

he believed the note would have been useful, he also thought that the other deputies he

called at trial put the testimony of Officer Leiva in a negative light and her credibility was

diminished.

         Officer Leiva was also questioned at the Motion Hearing regarding a handwritten

note contained in the discovery. The note stated, "said had rifle, said wasn't going to kill

tenants, but shoot in legs." Officer Leiva testified at the Motion Hearing that she was the


         3
          It is unclear from the transcript which "incident" this was referring to. Branson testified that he had
previously represented Jindra on a prior petition for an order of protection that was denied following an evidentiary
hearing.

                                                          5
author of the handwritten note and it was in her handwriting. Officer Leiva could not recall

who she was speaking to at the time or who provided her with the information and it could

have been the court marshal, Judge Schneider, or the court clerk. At the hearing, Officer

Leiva testified that when she spoke to Jindra on the day of the incident he "promised to

shoot them in the legs, and not kill them," but that she did not know who he was referring

to when he stated "them." Jindra argues that Trial Counsel could have used the note to

argue that the threats he made were directed at the tenants and not Judge Schneider.

        The motion court entered its judgment on March 21, 2018, denying Jindra's

amended Rule 29.15 Motion. The motion court found that it was trial strategy to not call

Jindra's former attorney and this did not fall below an objective standard of reasonableness.

The motion court further found that even if Trial Counsel was ineffective in failing to call

Jindra's former attorney, Jindra had not been prejudiced because, considering the totality

and strength of the other evidence of guilt, there is no reasonable probability that, absent

the alleged error, the fact finder would have had reasonable doubt as to guilt.

        Trial Counsel was aware of the handwritten note but was under the impression it

was the words of the Clerk or Judge and it contained hearsay contents that would not have

been admissible at trial. The motion court found that Trial Counsel's strategy to focus on

a particular defense and not the note did not fall below an objective standard of

reasonableness. Further, even if Trial Counsel was ineffective for failing to pursue the

author of the note, Jindra had not established prejudice because there is no reasonable

probability that, absent the alleged error, the fact finder would have a reasonable doubt as

to guilt.

                                             6
      This appeal followed.

                                  Standard of Review

      In reviewing a motion court's denial of a claim for ineffective assistance of counsel

the motion court's ruling is presumed correct. Zink v. State, 278 S.W.3d 170, 175 (Mo.

banc 2009). The court is limited to "a determination of whether the findings of fact and

conclusions of law are clearly erroneous." Patterson v. State, 110 S.W.3d 896, 900 (Mo.

App. W.D. 2003). The judgment is clearly erroneous when, "the court is left with the

definite and firm impression that a mistake has been made." Middleton v. State, 80 S.W.3d

799, 804 (Mo. banc 2002). The facts are interpreted, "in the light most favorable to the

verdict[,]" and the movant must show that the motion court clearly erred by a

preponderance of the evidence. State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996); see

Harrison v. State, 531 S.W.3d 611, 616 (Mo. App. W.D. 2017).

      To be entitled to post-conviction relief for ineffective assistance of counsel, the

movant must satisfy the two-pronged Strickland test. Strickland v. Washington, 466 U.S.

668 (1984) First, to prove counsel was ineffective, the movant must show that counsel

failed to perform to the degree of skill, care, and diligence that a reasonably competent

attorney would under similar circumstances. Id. 687. This requires that the movant show

that counsel's representation "fell below an objective standard of reasonableness." Id. at

688. Next the movant must also show that they were prejudiced by this failure. Id. at 687.

Prejudice occurs when "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Johnson v.

State, 406 S.W.3d 892, 899 (Mo. banc 2013). "If either the performance prong or the

                                            7
prejudice prong is not met, then [the court] need not consider the other, and the movant's

claim must fail." Butler v. State, 557 S.W.3d 427, 434 (Mo. App. W.D. 2018) (internal

quotation omitted). "A movant must overcome the strong presumption that counsel's

conduct was reasonable and effective." Johnson, 406 S.W.3d at 899. "To overcome this

presumption, a movant must identify 'specific acts or omissions of counsel that, in light of

all the circumstances, fell outside the wide range of professional competent assistance.'"

Id. (quoting Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009)). "Trial strategy decisions

may be a basis for ineffective counsel only if that decision was unreasonable." Id.

                                          Analysis

        Jindra raises two points on appeal. In Point One, Jindra argues that the motion court

erred in denying his amended Rule 29.15 motion because it violated his right to effective

assistance of counsel since Trial Counsel failed to investigate and call Branson as a witness.

In Point Two, Jindra argues that the motion court erred in denying his amended Rule 29.15

motion because it violated his right to effective assistance of counsel since Trial Counsel

failed to thoroughly investigate and introduce into evidence Officer Leiva's handwritten

note.

                                         Point One

        In his first point on appeal, Jindra argues that Trial Counsel was ineffective for

failing to thoroughly investigate and call Branson as a witness. Jindra contends that Trial

Counsel was ineffective because had he called Branson as a witness, his testimony would

have added credibility to his defense. Jindra argues that Trial Counsel did not thoroughly

investigate because he did not contact Branson to determine if his concerns regarding

                                              8
calling him at trial were well founded. Jindra argues that even if Trial Counsel is credited

with a reasonable investigation into Branson, his decision not to call him was unreasonable

because anything Branson would have testified to was already in evidence so Jindra could

not have been put in a more negative light.

       "The selection of witnesses and evidence are matters of trial strategy, virtually

unchallengeable in an ineffective assistance claim." Vaca v. State, 314 S.W.3d 331, 335

(Mo. banc 2010) (quoting Anderson v. State, 196 S.W.3d 28, 37 (Mo. banc 2006));

Williams v. State, 168 S.W.3d 433, 443 (Mo. banc 2005). "Reasonable choices of trial

strategy, no matter how ill-fated they appear in hindsight, cannot serve as a basis for a

claim of ineffective assistance." Vaca, 314 SW.3d at 335 (quoting State v. Johnston, 957

S.W.2d 734, 755 (Mo. banc 1997)). A witness may not be called if counsel believes their

testimony will be more damaging than it is helpful. Davis v. State, 761 S.W.2d 636, 637-

38 (Mo. App. E.D. 1988). The burden is on the movant to show that ""(1) counsel knew

or should have known of the existence of the witness, (2) the witness could be located

through a reasonable investigation, (3) the witness would testify, and (4) the testimony of

the witness would have produced a viable defense." Hays v. State, 360 S.W.3d 304, 309

(Mo. App. W.D. 2012).

       At the Motion Hearing, Trial Counsel testified that the decision not to call Branson

as a witness was part of his trial strategy. Counsel was aware of Branson and the

conversation Jindra had with him regarding shooting his tenants in the leg. Jindra and Trial

Counsel discussed the decision whether to call Branson as a witness. From the information

provided, Trial Counsel reasonably determined that there was no reason to investigate

                                              9
further by contacting Branson because he determined Branson's testimony would, in Trial

Counsel's opinion, have only put Jindra in a negative light as a violent person. Further, it

was only when McMasters discussed with Branson the comments Jindra made on the phone

regarding the law firm's parking lot, that he informed her this should be considered a

significant threat. Why Branson found this to be a threat was never presented to the jury

because of attorney/client privilege between Jindra and Branson. Had Trial Counsel placed

him on the stand in trial, the reasons for his concerns regarding this language may have

been placed before the jury. Trial Counsel had no obligation to call Branson as a witness

once he deemed that doing so would not help his client's case. Jindra's statements to

Branson implied a willingness to use violence and specifically gun violence against

someone.

       At the Motion Hearing, Branson's testimony was extremely limited.4 He testified

that he recalled giving a statement to the police at the time of the underlying events but had

little recollection of the specific facts. He testified that he had represented Jindra in a prior

order of protection matter and that the request for relief had been denied following an

evidentiary hearing. While Branson had no recollection of the exact conversation, he

agreed that the police report reflected that he told the officer that Jindra informed him at

some point after the hearing that if the courts were not going to protect him that he would

get a gun and protect himself. He testified that he didn't know for sure, but Jindra may

have been referring to the tenants when he said he would get a gun to protect himself. Even



       4
           Jindra signed a waiver of attorney client privilege to allow Branson to testify about their conversation.

                                                          10
had Branson been called at trial he would not be testifying about the charged conduct but

solely about a conversation that occurred on a different day, prior to the events in question.

This testimony did not corroborate Jindra's testimony regarding the charged conduct. It

was a reasonable trial strategy to assume that Branson's testimony would not have provided

a viable defense and consequently the decision not to call him as a witness was reasonable.

Jindra has failed to show that Trial Counsel was ineffective because Trial Counsel

conducted an investigation and made the decision not to call Branson as part of a reasonable

trial strategy.5

         As Jindra has failed to satisfy the first prong of the Strickland test, we find no need

to address the possibility of prejudice. Point One is denied.

                                                    Point Two

         In his second point on appeal, Jindra contends that the motion court erred in denying

his amended Rule 29.15 Motion because it violated his right to effective assistance of

counsel since Trial Counsel failed to thoroughly investigate and introduce into evidence at

trial a handwritten note made by Officer Leiva and located in the discovery. The note

stated, "said had rifle, said wasn't going to kill tenants, but shoot in legs." Jindra contends

that the note would have corroborated his defense that his statements were directed towards

his tenants and not Judge Schneider or Mr. Schneider. Further, Jindra argues that it would

have been valuable to his defense for Officer Leiva to testify that she had written the note

the day of the incident.


         5
          Jindra further fails to establish that he was prejudiced by the failure to call Branson as a witness, however
we do not need to reach the second Strickland prong due to Jindra's failure to meet the first prong. Butler v. State,
557 S.W.3d 427, 434 (Mo. App. W.D. 2018).

                                                          11
       We find that we need not address whether Trial Counsel's failure to introduce the

note into evidence fell below the standard of reasonably competent counsel because Jindra

failed to meet his burden to demonstrate that he was prejudiced by such a failure. Jindra

has the burden of proving that the probative value of the note was so high that counsel's

failure to thoroughly investigate and introduce the note at trial prejudiced him. Prejudice

exists where there "is a reasonable probability that but for his counsel's ineffectiveness, the

result would have been different." Rios v. State, 368 S.W.3d 301, 305 (Mo. App. W.D.

2012). "A reasonable probability is a probability sufficient to undermine confidence in the

outcome." Id. A conceivable effect on the outcome is not enough to show prejudice. Id.

       Trial Counsel testified at the Motion Hearing that the note would have been valuable

but that during trial, he was unaware who had written the note but believed it had been

Gatewood. At the time of trial, neither Trial Counsel nor the prosecutor were aware of the

origin of the note. However, Trial Counsel had already lead with the defense that Jindra

made statements to Branson regarding shooting his tenants in the leg to defend himself but

denied having any similar conversation with Gatewood. Branson's testimony that Jindra

claimed he would shoot his tenants in the leg was already in evidence. The note merely

confirmed Branson's testimony, which was not in dispute or even part of the charged

conduct.

       Trial Counsel admits that the note would have been valuable at trial but that is not

sufficient to show that the outcome would have been different had he chosen to pursue the

note further. Not only was the note's origin unknown at the time of trial but its contents

still contained a threat made by Jindra to shoot his tenants. Regardless of whether Jindra

                                              12
intended to shoot his tenants or Judge Schneider, his statements are still indicative of a

violent intention to shoot someone. Further, at trial, Gatewood would still have testified

regarding Jindra's statements to her over the phone. Evidence regarding Jindra's repeated

attempts to call Mr. Schneider would still have been presented, as well as Jindra's

statements to the receptionist about the parking lot. At trial, Officer Leiva still testified

that Jindra had made threats to shoot, "them in the legs."      If the note had been further

investigated and admitted into evidence, it in no way negates the evidence from other

witnesses regarding Jindra's threats and actions on the day in question. Jindra failed to

show that this note alone undermines our confidence in the judgment given the weight of

the other evidence presented against him.

       Point Two is denied.

                                        Conclusion

       For the reasons stated above, the judgment is affirmed



                                            __________________________________
                                            Gary D. Witt, Judge

All concur




                                             13
