                    In the Missouri Court of Appeals
                            Eastern District
                                        DIVISION TWO


 CARLOS ROBERTS,                                    )   No. ED102437
                                                    )
        Movant/Appellant,                           )   Appeal from the Circuit Court of
                                                    )   the City of St. Louis
 vs.                                                )
                                                    )   Honorable Thomas J. Frawley
 STATE OF MISSOURI,                                 )
                                                    )
        Respondent.                                 )   Filed: October 6, 2015


                                           Introduction

       Carlos Roberts (Movant) appeals the judgment of the Circuit Court of the City of St.

Louis denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing.

In his sole point relied on, Movant claims that the motion court clearly erred by denying his

motion without an evidentiary hearing because he alleged unrefuted facts that he was denied

effective assistance of appellate counsel. Specifically, Movant alleges that appellate counsel

unreasonably failed to claim on direct appeal that the trial court erred by refusing to instruct the

jury on a lesser-included offense of voluntary manslaughter and that, had appellate counsel

raised this claim, the appellate court likely would have granted a new trial. We affirm.
                                           Factual Background

          In March 2008, Movant repeatedly stabbed his “common-law” wife in the face, neck, and

chest.1 She did not survive the attack. A jury convicted Movant of second-degree murder,

armed criminal action, and unlawful use of a weapon. The trial court entered a judgment

consistent with the jury’s verdict and sentenced Movant to concurrent terms of life imprisonment

for the murder and armed criminal action convictions and a consecutive term of four years’

imprisonment for the unlawful use of a weapon conviction. This Court affirmed the trial court’s

judgment and sentence on direct appeal. See State v. Roberts, 426 S.W.3d 669 (Mo. App. E.D.

2013).

          Thereafter, Movant filed a pro se motion to vacate, set aside or correct the judgment or

sentence. Appointed counsel subsequently filed an amended motion alleging that appellate

counsel was “ineffective for failing to raise a preserved claim on direct appeal that the trial court

erred in refusing to instruct the jury on the lesser[-]included offense of voluntary manslaughter”

and, further, that had appellate counsel raised the claim, there was a reasonable probability that

the appellate court would have granted Movant a new trial. Movant explained that evidence of

“sudden passion” was allegedly introduced at trial, which would have supported submission of

the lesser-included offense instruction to the jury, and further that the Missouri Supreme Court’s

decision in State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014), required submission of the

instruction simply because Movant requested it.              Under these circumstances, according to

Movant, a reasonably competent attorney would have asserted the error and no reasonable

strategy justified appellate counsel’s failure to raise the issue. Movant asserted that he expected

appellate counsel to testify that she had no reasonable strategy for failing to raise the issue on

direct appeal.
1
    Missouri does not recognize common-law marriages. § 451.040.5 RSMo 2000.


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       The motion court denied Movant’s motion without an evidentiary hearing.                After

reviewing the evidence at trial, the motion court found that nothing in the record supported

submission of a voluntary manslaughter instruction and that the evidence cited by motion

counsel “amounts to speculation at best . . . .” The motion court further found that appellate

counsel could not be ineffective “for not anticipating a change in the law” and, thus, Jackson is

not relevant to determining the reasonableness of appellate counsel’s performance.

Consequently, the motion court concluded that appellate counsel “was not ineffective as there is

no reasonable probability [that] movant’s murder conviction would have been reversed on appeal

had this claim been raised.” Movant appeals.

                                       Standard of Review

       We review for clear error a motion court’s ruling on a Rule 29.15 motion for post-

conviction relief. Trice v. State, 344 S.W.3d 277, 278 (Mo. App. E.D. 2011). “The motion

court’s findings, conclusions and decisions are clearly erroneous only if review of the record as a

whole leaves this Court with the firm and definite impression that a mistake has been made.” Id.

                                            Discussion

       In his sole point relied on, Movant claims that the motion court clearly erred by denying

his motion without an evidentiary hearing because he alleged unrefuted facts that he was denied

effective assistance of appellate counsel. Specifically, Movant alleges that appellate counsel

unreasonably failed to claim on direct appeal that the trial court erred by refusing to instruct the

jury on a lesser-included offense of voluntary manslaughter, “because there was evidence of

sudden passion,” and that had appellate counsel raised this claim the appellate court would likely

have granted a new trial. In response, the State asserts that the motion court’s decision was not

clearly erroneous because Movant only pleaded conclusions, not facts, that appellate counsel’s




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performance was deficient and also because appellate counsel’s decision not to raise the claim

was not unreasonable.

       Movant is entitled to an evidentiary hearing only if: “(1) he pleaded facts, not

conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the

matters complained of resulted in prejudice to the movant.” McNeal v. State, 412 S.W.3d 886,

889 (Mo. banc 2013). Thus, to obtain an evidentiary hearing on a claim of ineffective assistance

of appellate counsel, Movant must plead facts, unrefuted by the record, alleging that appellate

“counsel failed to raise a claim of error that was so obvious that a competent and effective

lawyer would have recognized and asserted it” and that, had counsel raised the claim, “a

reasonable probability [exists] that the outcome of the appeal would have been different.”

Mallow v. State, 439 S.W.3d 764, 770 (Mo. banc 2014) (citations and quotations omitted).

Movant must overcome the presumption that the challenged action of appellate counsel

constitutes a matter of appellate strategy. Schallon v. State, 435 S.W.3d 120, 124 (Mo. App.

E.D. 2014). “Appellate counsel has no obligation to present every issue asserted in the motion

for new trial when she makes a strategic decision to cull some arguments in favor of others.” Id.

       During trial, evidence was introduced that Movant and Victim had an estranged

relationship and that Movant had threatened Victim numerous times after their separation. On

the day of the murder, Movant and Victim were at the hospital because their daughter’s children

had been injured in a fire while in Movant’s care. While at the hospital, Movant had urged

Victim to come home with him, but Victim said she did not want to leave her daughter and

grandchild at the hospital. Later in the evening, Movant and Victim exited the building to

smoke. Witnesses observed Movant stabbing Victim with a knife and cutting his own wrists and

throat. Witnesses yelled for help and for Movant to stop; when an unarmed security guard




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confronted Movant, he briefly ceased the assault, but then returned to stabbing Victim. Movant

did not stop the assault until a security guard drew a firearm. The State, in rebuttal, introduced

the testimony of Dr. Michael Armour, who testified to “possible” scenarios to explain the event,

including: (1) that Movant was upset, “brooding over the death of his grandson, and that the

granddaughter was in the [intensive care unit] and [Victim] was leaving him, that Movant got

upset and stabbed [Victim];” (2) that Movant blamed Victim for not being present when the fire

occurred, Victim responded, and Movant got angry and stabbed Victim; and (3) that Victim

blamed Movant for the house fire and Movant got angry and stabbed her.

       “The crime of voluntary manslaughter is defined as causing the death of another person

under circumstances that would constitute murder in the second degree, except that the death was

caused under the influence of sudden passion arising from adequate cause[.]” State v. Redmond,

937 S.W.2d 205, 208 (Mo. banc 1996) (citation and quotations omitted). “‘Sudden passion’ is

defined as ‘passion directly caused by and arising out of provocation by the victim or another

acting with the victim which passion arises at the time of the offense and is not solely the result

of former provocation.’”     Zink v. State, 278 S.W.3d 170, 183 (Mo. banc 2009) (quoting

§ 565.002(7) RSMo 2000). As noted, this “sudden passion” must arise from “adequate cause,”

which is defined as “‘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[.]’” Zink, 278 S.W.3d at 183 (quoting § 565.002(1)).

       “A court must instruct on a lesser-included offense only if the evidence established a

basis for acquittal of the greater offense and conviction of the lesser-included offense.” State v.

Hill, 17 S.W.3d 157, 159 (Mo. App. E.D. 2000). A defendant is entitled to an instruction on the




                                                5
lesser-included offense if it is “is supported by the evidence and any inferences which logically

flow from the evidence.” State v. Hopson, 891 S.W.2d 851, 852 (Mo. App. E.D. 1995).2

         Here, the record does not logically support a finding of sudden passion arising from

adequate cause. This is because there is no evidence that Victim engaged in conduct constituting

“adequate cause” that would have provoked Movant to act with “sudden passion.” No direct or

circumstantial evidence indicates that Victim, for example, at the time of the stabbing, in any

way threatened Movant through the display of a deadly weapon or otherwise threatened Movant

through physical contact. Compare, e.g., Redmond, 937 S.W.2d at 208-09 (affirming conviction

for voluntary manslaughter where victim threatened the defendant with a gun); State v. Lowe,

318 S.W.3d 812, 816 (Mo. App. W.D. 2010) (affirming conviction for voluntary manslaughter

where testimony showed that victim had started a fight with the defendant before the defendant

struck victim with a hammer, killing him); State v. Henderson, 311 S.W.3d 411, 412 (Mo. App.

W.D. 2010) (affirming conviction for voluntary manslaughter where victim attempted to run-

over the defendant with his truck, at which point the defendant shot at the truck, killing victim).

         Movant relies on the testimony of Dr. Amour, but even assuming his testimony

constituted probative evidence of the events as opposed to mere speculation, his theories about

what may have happened would not have supported submission of the voluntary manslaughter

instruction. Mainly, in the theoretical scenarios posed by Dr. Amour, either Victim’s statements

to Movant caused the stabbing or Movant’s grief over his grandchildren in conjunction with the

fact that Victim was leaving him, constituted the alleged “adequate cause” provoking Movant’s


2
  On appeal, Movant does not argue that the Missouri Supreme Court’s decision in Jackson changed the law.
Instead, Movant asserts that Jackson “restated and affirmed previously existing law.” Regardless of Jackson’s
jurisprudential impact, we consider Movant’s claim under the law as it existed at the time of Movant’s direct appeal,
which preceded Jackson. As the motion court correctly noted, counsel’s performance is gauged by reference to the
law existing at the time of trial and “failure to predict a change in the law is not ineffective assistance.” State v.
Parker, 886 S.W.2d 908, 923 (Mo. banc 1994).



                                                          6
“sudden passion.” However, words alone, no matter how offensive, are insufficient to show

adequate cause. State v. Avery, 120 S.W.3d 196, 205 (Mo. banc 2003). Moreover, to the extent

that Victim’s decision to leave Movant allegedly constituted adequate cause, Movant’s

knowledge of that fact occurred well before the stabbing. “[P]rior provocation can never be the

sole cause of sudden passion . . . .” Id. And, Movant’s grief over his grandchildren does not

constitute sudden passion arising from adequate cause, given that the provocation must be

directly caused by the Victim. Zink, 278 S.W.3d at 183.

       Having reviewed the record, we conclude that the evidence at trial did not support

submission of the lesser-included offense of voluntary manslaughter. Consequently, the trial

court did not err by refusing to submit the lesser-included offense instruction and, accordingly,

appellate counsel’s decision not to claim instructional error on appeal was reasonable trial

strategy. Counsel’s performance is not defective for failure to raise a non-meritorious claim.

See Mason v. State, 189 S.W.3d 708, 710 (Mo. App. W.D. 2006) (“We will not convict trial

counsel of ineffective assistance for failing to do that which would have been a futile act.”

(citation and quotations omitted)). Under these circumstances, Movant has failed to adequately

allege unrefuted facts that counsel’s decision was not a matter of trial strategy or that counsel

“failed to raise a claim of error that was so obvious that a competent and effective lawyer would

have recognized and asserted it.” Mallow, 439 S.W.3d at 770 (citation and quotations omitted).

It follows that no reasonable probability exists that the outcome of the appeal would have been

different had counsel raised the claim. See id.




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        In sum, Movant failed to meet his burden of pleading unrefuted facts that would entitle

him to post-conviction relief.3 Accordingly, the motion court did not err by denying Movant’s

Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Point 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.




3
  We also note that, although we have considered the merits of the amended motion, Movant’s motion merely raises
conclusory allegations, not facts. Movant, for example, does not plead facts explaining why appellate counsel failed
to raise the claim. Movant’s failure in this regard is grounds, by itself, for denying Movant post-conviction relief.
See Davis v. State, 453 S.W.3d 882, 886 (Mo. App. E.D. 2015) (“A movant must come forward with facts, not mere
conclusory allegations, in order to support a post-conviction motion.”).


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