 

In the Missoiiri Com't of Appeals
Eastem Distt‘ict

DIVISION THREE
DAVID JONES, ) No. ED103248
) 
Appellant, ) Appeal from tl1e Circuit Court of i
) the City of St. Louis -
vs. ) 1322-€(301 130
)
STATE OF MISSOURI, ) Honorable Philip D. Heagney
)
Respondent. ) Filed: July ]9, 2016

Before Robert M. Clayton Ill, P. J., Lawrerrce E. Mooney, J., and Jantes M. Dowd, J.

OPINION

David Jones was convicted by ajury of the felony charges of first-degree assault and armed
criminal action. The trial court sentenced Jones to two concurrent terms of imprisonment twelve
years for first-degree assault, and three years for armed criminal action. Jones appealed the
convictions in Stare v. Jones, 398 S.W.3d 519 (Mo.App.E.D. 2013), and this Court affirmed J ones
then filed a Rule 29.15 motion for post-conviction relief. The motion court denied it without an !
evidentiary hearing. We now consider Jones’s appeal of the motion court’s ruling.

Arguing that the motion court clearly erred in denying his Rule 29.15 motion without an
evidentiary hearing, Jones raises one point on appeal: that trial counsel rendered ineffective
assistance because counsel should have offered a self-defense instruction hypothesizilig lnultiple

assailants. Because the motion court did not clearly err in determining that Jones’s ineffective

 

 

assistance claim is refuted by the record and does not entitle him to relief or an evidentiary hearing,
we afiirm.
Staxldard 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;
Adcz)'low v. State, 439 S.W.Sd 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. Ia'. We presume that the motion court’s findings are
correct. fci

Moreover, an evidentiary ltearing is not warranted in every Rule 29.15 motion Rule
29. l S(h); Joh)v.s'ron v. Sla'fe, 406 S.W.?)d 892, 898 (Mo.banc 2013). To be entitled to an evidentiary
hearing, the inovant’s motion must (l) allege facts, not conclusions, warranting relief; (2) raise
factual inatters that are not refuted by the file and record; and (3) raise allegations that resulted in
prejudice Id. Courts will not draw factual inferences or implications in a Rule 29.15 motion from
bare conclusions or from a prayer for relief. Id.

Discussioll
The Sirickland Test

We apply the two-part Sfr'icklclnci test to ineffective-assistance-of-counsel claims for post-
conviction relief under Rule 29.15. See Strick!ancl v. Was)'ring!on, 466 U.S. 668, 687 (1984);
Jolinson, 406 S.W.3d at 898. 'I`o 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

1 All rules references are to the Missouri Supreme Coutt Rules (2016).

2

failure Jolznson, 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
counsei that, in light of all the circuinstances, fell outside the wide range of professionally
competent assistance. ]d. To show prejudice, the movant must demonstrate that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Ia’.

Failure to Offer a Mtlltiple-Assaiiants Self-Defeiise instruction

ln his sole point on appeal, Jones claims that trial counsel was ineffective for failing to
offer a self-defense instruction hypothesizing multiple assailants. We disagree because the record
demonstrates that J ones was not entitled to such a self-defense instruction, and thus, as a matter of
law, his claim of ineffective assistance fails.

Self-defeiise is a special negative defense pursuant to which the defendant has the burden
of injecting into the evidence the issue of self-defense while the State continues to have the burden
to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Jcznzccr)'y,
176 S.W.Bd 187, 197 (Mo.App.W.D. 2005); § 563.031.52. A trial court is obligated to instruct on
self-defense if substantial evidence is presented that, when viewed in the light most favorable to
the defendant, puts self-defense in issue. State v, Honcks, 954 S.W.3d 636, 638 (Mo.App.W.D.
1997). lndeed, the defendant is entitled to a self-defense instruction in which the jury considers
threatened harm from all assailants, not just the one against whom the defendant may have
retaliated, if such an instruction is supported by substantial evidence in the reco1'd. State v.

Mangu)u, 580 S.W.Bd 853, 868-69 (Mo.App.E.D. 2013).

2 Ali statutory references are to RSl\/lo (Supp. 2012) unless otherwise indicated.
3

However, self-defense, as a legal defense, generally "cannot occur where the accused
denies conunitting the underlying act for which [he or she] is charged." Houcks, 954 S.W.Zd at
639. "[A] person claiming self-defense seeks to justify the act for which the person is charged
rather than simply denying the allegation and, thereby, compelling the [S]tate to prove the charged
offense." ld. Barring exceptional circumstances, "[s]elf-defense is an admission by the person
invoking tire de_ferise that the person coinrnitted the alleged act." id (emphasis added). The only
exception to this general rule precluding the submission of a self-defense instruction where the
defendant does not admit cornmitting the aileged act for which he claims such justification under
the law~i.e., where injection of the issue of self-defense would be inconsistent with his own
testimony-is that the evidence of him committing the alleged act in self-defense was presented
by the State or a third-party witness called by the defense. See id,

The Western District applied these principles in Hozrcks. The Hozzck.s‘ court held that the
defendant, who was cliarged with first-degree assault and arined criminal action for setting her
husband on fire using a cup of gasoline and a lighter, was not entitled to a self-defense instruction
because she did not admit committing the specific act charged by the Stateaintentionally setting
her husband aflame_f`or which she claimed justification, and neither the State nor any of the
defendant’s third-party witnesses offered evidence that she committed the charged act in seif-
def`ense. la'. at 63 8-3 9. The defendant did not outright deny that her husband was set aflaine as a
result of her actions, but she claimed it was an accident--she did not admit that she intentionally
set him on fire. Id. at 639. As a result, the Hozzcks court concluded that the evidence submitted in
the case, even if viewed in the light most favorable to the defendant, was insufficient to establish

the defendant’s entitlement to a self-defense instruction. Id.

The Houcks court explained that asserting self~defense and accident as defenses is
inconsistent because when claiming self-defense, the defendant acknowledges intentionally
inflicting injury or death on another person, but asserting that injury to another resulted front an
accident includes the assertion that the defendant’s conduct causing liarm was uninrenriorzal.3 Id.
at 638 (citing State v. MiI/er, 772 S.W.Zd 782, 784 (Mo.App.l989)). The court noted that despite
the inconsistency of the two defenses, a defendant may be entitled to have both submitted to the
jury if they are proved by proper evidence. Id. at 639 (citing State v. Morrz`s, 248 S.W.2d 847, 853
(Mo.banc 1952)). However, the court observed that the evidence necessary to justify instructions
on defenses inconsistent with the defendant’s testimony must be offered by the state or proved by
third-party witnesses for the defendant; the defendant cannot alone provide the basis for such a
defense. Id. (citing Smre v. Wriglrt, 175 S.W.Qd 866, 872 (Mo.banc l943); State v. Pecn', 463
S.W.Zd 840, 842 (Mo.banc 1971)). Because the Hozzcks court found that neither the State nor any
third-party witness provided a basis for the defendant’s assertion of self~defense#whicli was
inconsistent with her testimony that her husband’s injuries resulted from an accident-she was not
entitled to have a self-defense instruction submitted to the jury. Ia'.

The situation in Hoztcks was virtually identical to that in this case. On this record, liowever,
it is even clearer that the defendant was not entitled to a self-defense instruction, much less one
hypothesizing multiple assailants. Here, a grand jury charged J ones with~waiid the jury convicted
him of_one count of first-degree assauit, as well as one connected count of armed criminal action,
based on allegations that he knowingly caused serious physical injury to Virgle Woods ("Victiin")

by stabbing him during a confrontation on Victim’s basement stairs. Jones asserted self-defense,

3 We acknowledge that under certain unusual circumstances not present here, a defendant may
recklessly act in self-defense. State v. Beefer, 12 S.W.$d 294, 297-98 (Mo.banc 2000).

5

but he did not admit to committing the alleged act-the intentional stabbing-»-for which he claimed
justification in case the jury found that it occurred. Moi'eover, unlike the defendant in Houcks, he
refused to admit that he inflicted the alleged harms at ali, even wholly as an accident_instead, he
outright denied that he stabbed or cut Victim.

Wlien asked at trial whether he cut Victim, Jones testified, °‘No, I didn’t have the
opportunity to cut liim." Jones claimed that he was never able to use on Victirn either of two
knives he carried at the time of the alleged offense. J ones concluded that he could not explain how
Victini ended up with gashes on his neck. Jones ilnquestionably asserted self-defense, which
would have justified .Tones’s stabbing of Victim had the State not proved beyond a reasonable
doubt that Jones did not reasonably believe his use of force was necessary; however, Jones’s
testimony did not produce sufficient evidence to support a self-defense instruction because he
made clear that he did not even believe he used force, much less that he reasonably believed his
use of force was necessary.

Nor did the State’s evidence or the lone third-party defense witness in this case establish
that Jones stabbed Victim in self-defense The State’s evidence showed that Jones was the initial
aggressor; that he pushed Victini down and cut him with a utility knife; and that afterward Victi1n
fought him off by hitting him with a cell phone until he ran away and ended the confrontation.
And Lonzeli Stiles, Jones’s sole witness, did not testify that Jones stabbed Victim in self-defense.
Stiles did not testify as to any use of force by Jones.

Therefore, the facts in this case are even more compelling than those in Hozzcks and
demonstrate that the defendant was not entitled to a self-defense instruction of any l<ind. There
was no evidence in the record that J ones stabbed Victim in self-defense-tliere was inerely Jones’s

testinioiiy outright denying that he stabbed Victim; the State’s evidence that J ones intentionally

and unjustifiably stabbed Victirn; and Stiles’s testimony with no reference to the use of force by
Jones. In other words, like the defendant in Hozzcks, Jones czlozve attempted to provide the basis
for an affirmative defense-~self-defenseainconsistent with his own testilnony. And in a sense,
Jones did even less to establish self-defense; he did not, like the defendant in Hozzcks, admit to
accicte.~ifally cornmitting charged conduct-instead, he asserted self-defense while at the same time
testifying that he did not stab Victim or even have the opportunity to do so.

Based, then, on the definition and principles of self~defense discussed above-which
describe self-defense as necessarily involving an czd))u`ssion of committing the charged conduct-
we find as a matter of law that Jones’s testimony was plainly insufficient to establish Jones’s
entitlement to a self-defense instruction, regardless of how many assailants it liypotlresized. And
because the record as a whole likewise affords no basis for finding that 3 ones was entitled to a self-
defense instruction in this case, we conclude that Jones would not have been entitled to such an
instruction expressly hypothesizing rnultiple assailants, if counsel had offered it.

Accordingly, as a matter of law, it was not ineffective assistance for trial counsel to fail to
offer such an instruction. See Cla)'k v. S!ate, 30 S.W.3d 879, 884 (Mo.App.S.D. 2000) ("It is not
ineffective assistance to fail to request an instruction that is not warranted by the evidence." (citing
Stcn‘e v. Ho!conzb, 956 S.W.2d 286, 294 (Mo.App. W.D.l997))); Reagcm v. State, 751 S.W.Zd 793,
795 (l\/Io.App.E.D. 1988) (finding that where instructions were not supported by the evidence, as
a rnatter of law it was not ineffective assistance of counsel to fail to submit them); Wright v. Sfcn‘e,
125 S.W.Bd 861, 869 (Mo.App.S.D. 2003) ("We cannot . . . find trial counsel's performance
deficient because he failed to protect his right to assert a defense to which his client clearly was
not entitled as a matter of iaw." (citing Dorsey v. Stafe, 113 S.W.3d 311, 318 (Mo.App.

S.D.ZOO?>))). The motion court did not clearly err in determining that Jones’s ineffective assistance

Conclusion

For the reasons stated above, we affirm the judgment of the motion coux“c.

lame wd, Jud

Robert M. Claytoll III, P.J., and
Lawrence E. Mooney, J., concur.

