Timothy S. Kelley v. State of Missouri ( 2021 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
TIMOTHY S. KELLEY, )
Appellant, )
)
v. ) WD83185
)
STATE OF MISSOURI, ) FILED: March 16, 2021
Respondent. )
Appeal from the Circuit Court of Henry County
The Honorable James K. Journey, Judge
Before Division Three: Edward R. Ardini, Jr., P.J.,
and Alok Ahuja and Gary D. Witt, JJ.
Timothy Kelley was convicted of first-degree assault after a jury trial in the
Circuit Court of Henry County, and was sentenced to a fifteen-year term of
imprisonment. After we affirmed Kelley’s conviction and sentence on direct appeal,
he filed a motion for post-conviction relief under Supreme Court Rule 29.15. The
circuit court denied Kelley’s post-conviction relief motion without an evidentiary
hearing. Kelley appeals. Because we conclude that Kelley was entitled to an
evidentiary hearing on certain of his claims, we affirm in part, reverse in part, and
remand for further proceedings.
Factual Background
Kelley was charged with first-degree assault, a class B felony, for attempting
to cause serious physical injury to Bill Wilson by attempting to run Wilson over
with a pickup truck.
The charge arose from an incident on September 9, 2013. At the time, Wilson
was checking the mail at a sawmill which he owned on Highway 18 west of Clinton.
The sawmill had been closed since 2006. As he was checking the mail, Wilson saw a
truck come “shooting out” of the sawmill’s driveway onto the highway. Wilson
decided to follow the truck to get its license plate number, suspecting that the
driver had been stealing property from the sawmill. Kelley was driving the truck
which Wilson saw and followed.
Wilson followed the truck for approximately three miles, until the truck
turned off Highway 18 onto Highway P, and then into a residential driveway.
According to Wilson, he parked his vehicle next to the truck, got out, approached
the driver’s window of the pickup truck, and asked Kelley, “what the hell are you
doing behind the sawmill?” Wilson admitted he was “probably talking loudly.”
Kelley responded that he was “checking something”; Wilson did not hear the rest of
what Kelley said because Wilson was walking toward the back of Kelley’s truck to
get the license plate number. Wilson carried a pen in one hand and a letter in the
other. He was not carrying any weapons.
As he “crossed behind the pickup,” Wilson saw “a cut or two” of “aluminum,
black-coated wire” in the bed of Kelley’s truck. Wilson testified that he had similar
wire at the sawmill. He admitted, however, that he could not say whether the wire
in Kelley’s truck had come from his sawmill, and never checked to see if he was
missing any wire. After seeing the wire, Wilson said to Kelley, “hell, you were
stealing copper.”
Wilson testified that he accused Kelley of stealing as he was standing behind
the truck, or “[a]s [he] stepped behind it.” Wilson claimed that, after he accused
Kelley of stealing, the “truck was coming at me. It hit me.” Wilson testified that
the truck began moving too quickly for him to get out of the way. Wilson “got ahold
of [the truck] somehow,” and he “lifted” and “pushed” it. The “tires were spinning”
and the “motor moaning.” Wilson testified that Kelley “was doing all he could do
with” the truck’s power; “I could hear the motor revving and the moan of that S-10
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engine.” While he held the truck at bay, Wilson claimed that he saw Kelley
“glaring” at him with a “snarl.” Wilson “was able to keep [the truck] off [him],” as
the truck was not “powerful enough” to run him over, but it slowly pushed him back
across the highway. Wilson thought that Kelley had been trying to kill him, and
said that he would have felt justified in shooting Kelley if he had a gun.
According to Wilson, after Kelley backed the truck across the highway, he put
the truck in drive and drove away. Wilson wrote down the license plate number
and called 9-1-1.
Kelley testified in his own defense. According to Kelley, he pulled off the
highway, and parked behind Wilson’s sawmill, because he had defecated in his
pants while driving and needed somewhere private where he could attempt to clean
himself up before proceeding on his way. Kelley testified that after he exited the
sawmill, he pulled over when he saw Wilson following him, since he assumed that
Wilson wanted to talk to him. As Wilson approached Kelley’s truck, Kelley testified
that Wilson was “swinging his arms and yelling something” that Kelley could not
hear. Although the windows of Kelley’s truck were up, Wilson was yelling loudly
enough that Kelley, who is deaf in both ears, could hear him without his hearing
aids. Kelley was “frightened” because Wilson is “a big boy.” Kelley testified that he
“was wanting to get out of there” to “[g]et away from him.” Kelley began by backing
up his truck so that he could re-enter the highway. According to Kelley, Wilson
“was beside the truck when I was backing up.” Kelley testified that, as he was
backing out “slow[ly],” Wilson hit the back of the truck and threw his arms up.
Kelley saw that he had enough room to pull forward at that point, so he did, and
left.
Kelley testified that he did not intend to run Wilson over; he just wanted to
“get out of there,” to “get away from [Wilson].” Kelley saw that Wilson was behind
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his truck at some point, but he denied that he continued driving backwards after he
realized that Wilson was behind the truck.
Sheriff’s Deputy Brad Sadoorus responded to Wilson’s 9-1-1 call and took
Wilson’s statement.
The truck Kelley had been driving was located on Army Corps of Engineers
property. The vehicle was well off the road, obscured by vegetation. A coil of wire
was found approximately fifteen yards from the truck, behind a tree. Kelley
admitted to removing the wire from the truck bed. Kelley claimed that he had
gotten the wire from a friend a couple of weeks earlier, and that he had intended to
sell it for scrap. Kelly testified that he removed the wire from the truck because the
truck belonged to his brother, and he knew that his brother would not allow him to
continue using the truck after the incident with Wilson. Kelley claimed that,
because he would no longer be able to use the truck, he would no longer be able to
haul scrap, and therefore had no further use for the wire.
Kelley was placed under arrest and searched by Deputy Sadoorus. Deputy
Sadoorus testified that he did not remember smelling anything unusual during his
search of Kelley’s person, or during their drive to the jail.
Detective Lee Hilty went to the scene of the assault. Detective Hilty looked
at the tire tracks on the road and spoke with Wilson about what had occurred. He
testified that “[t]here were spin marks with both tires from this vehicle here going
on to the pavement.” Detective Hilty testified that he could tell that the vehicle had
been backing onto the pavement due to “the direction . . . the gravel was thrown and
the fact that there was solid print of the other tires that followed.” Detective Hilty
testified that there were “some black marks start[ing] at the edge of the pavement,”
and lighter black marks across the highway, with one wheel going off the roadway
on the far side. He testified that “then you could see that the dirt was turned as if
the vehicle was put in a forward gear, thrown back towards the ditch and then
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marks going up the highway.” Detective Hilty testified that the tire tracks he
observed “matched” Wilson’s account of what had happened.
At trial, the defense called two character witnesses: Kelley’s friend Jane
Duncan, and his former boss John Krahenbuhl. Both witnesses testified to Kelley’s
reputation for honesty in the community. Krahenbuhl also stated that he trusted
Kelley, and that Kelley never stole from him despite multiple opportunities. On
cross-examination, both witnesses were questioned regarding Kelley’s prior criminal
convictions.
During the State’s closing argument, it emphasized to the jury that the case
“goes back to credibility. Who is more credible?” The prosecutor ridiculed Kelley’s
claim that he had defecated while driving, and parked behind the sawmill to remove
his soiled underwear and clean himself up:
So again, it really comes down to whether you’re going to believe Mr.
Wilson or you’re going to believe this ridiculous poop story that the
Defendant testified to. And I hate to just get up here and to say
something like that, but it’s frankly one of the silliest things I’ve heard
in my more than 30 years working in the criminal justice system, as a
police officer, as a private practice attorney, as a prosecutor, an
observer of the criminal justice system, and a teacher of criminal
justice and a teacher of police academy, I’ve heard it all, I thought.
Until today. I have never heard I pooped my pants as being a defense.
But that’s what you all heard.
The prosecutor argued that it “borders on being insulting to your-all’s intelligence”
for Kelley to have testified to “this ridiculous poop story.”
The prosecutor ended his rebuttal argument by emphasizing that Kelley had
a powerful motive to assault Wilson: to avoid punishment for having stolen wire
from Wilson’s sawmill.
I don't know if I have too much more to say about all of this. I
think it's just, again, a common sense thing. You know, the Defendant
tried to run over Bill Wilson that day. I think you can reasonably infer
that he was back there behind the sawmill, was in the process of
stealing him some wire, he got spooked by Bill Wilson showing up to
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check his mail, he ran down the highway. He didn’t want to go back to
prison again, so he tried to run over the guy who was a witness.
The jury convicted Kelley of assault in the first degree. The court found
Kelley to be a prior and persistent offender, and sentenced him to fifteen years’
imprisonment.
In his new trial motion, Kelley argued, among other things, that the court
had erred in admitting evidence suggesting that Kelley had stolen wire from
Wilson’s sawmill. In response, the State argued that the “existence of that wire in
the back of the truck . . . showed motive for the Defendant to attempt to run over
the victim in this case.”
Kelley appealed. His appellate counsel raised two Points: first, that there
was insufficient evidence to convict him; and second, that the trial court plainly
erred in admitting evidence of Kelley’s purported theft of wire from the sawmill,
because Kelley had not been charged with stealing. We affirmed Kelley’s conviction
and sentence in an unpublished order and memorandum. State v. Kelley, 507
S.W.3d 181, No. WD78735 (Mo. App. W.D. Jan. 17, 2017) (mem.). In rejecting
Kelley’s claim that it was plain error to admit evidence concerning the wire, we
observed:
Not only was evidence of the wire relevant in establishing Kelley's
intent and motive to strike Wilson with his pickup truck, but, as "part
of the circumstances or the sequence of events surrounding the offense
charged," it also was relevant in presenting a "complete and coherent
picture of the events" surrounding the assault.
Id., mem. at 10-11 (citation omitted).
On March 24, 2017, Kelley filed his pro se motion for post-conviction relief.
Appointed counsel filed an amended motion on July 10, 2017. The amended motion
claimed, on eleven grounds, that Kelley received ineffective assistance from both his
trial and appellate counsel. The circuit court denied Kelley’s amended motion
without conducting an evidentiary hearing. Kelley appeals.
6
Standard of Review
This Court will affirm the judgment of the motion court unless
its findings and conclusions are clearly erroneous. The motion court's
judgment is clearly erroneous only if this Court is left with a definite
and firm impression that a mistake has been made. The motion court's
findings are presumed correct. Additionally, a movant bears the
burden of proving the asserted claims for relief by a preponderance of
the evidence.
Pursuant to Rule 29.15, an evidentiary hearing is not
mandatory when the motion and record conclusively show that the
movant is not entitled to relief. Courts will not draw factual inferences
or implications in a Rule 29.15 motion from bare conclusions or from a
prayer for relief. To be entitled to an evidentiary hearing, Movant's
motion must: (1) allege facts, not conclusions, warranting relief;
(2) raise factual matters that are not refuted by the file and record; and
(3) raise allegations that resulted in prejudice.
Johnson v. State, 406 S.W.3d 892, 898 (Mo. 2013) (citations and internal quotation
marks omitted).
Nothing in the text of Rule 29.15 suggests that the pleading
requirements are to be construed more narrowly than other civil
pleadings. Thus, a movant may successfully plead a claim for relief
under Rule 29.15 by providing the motion court with allegations
sufficient to allow the motion court to meaningfully apply the
Strickland standard and decide whether relief is warranted.
Wilkes v. State, 82 S.W.3d 925, 929 (Mo. 2002) (citing Morrow v. State, 21 S.W.3d
819, 824 (Mo. 2000)). “In reviewing the motion court’s dismissal [of a 29.15 motion
without an evidentiary hearing], this Court is required to assume every pled fact as
true and to give the pleader the benefit of every favorable inference which may be
reasonably drawn therefrom.” Wooldridge v. State, 239 S.W.3d 151, 154 (Mo. App.
E.D. 2007) (citation omitted).
“In order to ensure that claims are decided accurately, the rules encourage
evidentiary hearings.” Wilkes, 82 S.W.3d at 929 (citing Rule 29.15(h)).
Claims of ineffective assistance of counsel are assessed under the standards
announced in Strickland v. Washington, 466 U.S. 668 (1984).
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To be entitled to post-conviction relief for ineffective assistance
of counsel, a movant must show by a preponderance of the evidence
that his or her trial counsel failed to meet the Strickland test in order
to prove his or her claims. Under Strickland, a movant must
demonstrate that: (1) his or her counsel failed to exercise the level of
skill and diligence that a reasonably competent counsel would in a
similar situation, and (2) he or she was prejudiced by that failure.
A movant must overcome the strong presumption that counsel's
conduct was reasonable and effective. 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. Trial strategy decisions may be a basis for
ineffective counsel only if that decision was unreasonable. Strategic
choices made after a thorough investigation of the law and the facts
relevant to plausible opinions are virtually unchallengeable.
To establish relief under Strickland, a movant must prove
prejudice. 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, 406 S.W.3d at 898–99 (citations and internal quotation marks omitted).
Discussion
On appeal, Kelley claims in eight separate Points that his trial and appellate
counsel provided him with constitutionally ineffective assistance.
I.
In Point I, Kelley argues that his trial counsel was ineffective for failing to
request that the circuit court instruct the jury on self-defense. In Point III, Kelley
argues that his appellate counsel was ineffective for failing to argue in his direct
appeal that the circuit court plainly erred in failing to give the jury a self-defense
instruction. Because these two claims fail for similar reasons, we address them
together.
“In determining whether a defendant is entitled to an instruction, this Court
has long held if there is substantial evidence to support the theory propounded in
the requested instruction, the court is required to submit that instruction to the
jury.” State v. Barnett, 577 S.W.3d 124, 126 (Mo. 2019) (citation omitted).
8
“Sufficient ‘substantial’ evidence is provided if there is ‘evidence putting a matter in
issue.’” State v. Bruner, 541 S.W.3d 529, 535 (Mo. 2018) (citation omitted). “The
burden of producing evidence sufficient to inject self-defense is a minimal burden.”
Id. at 530.
“[A] court must view the evidence in a light most favorable to the defendant
in order to determine whether the evidence was sufficient to support and authorize
instructions on the mentioned matters.” Barnett, 577 S.W.3d at 126 (citation and
internal quotation marks omitted). “Substantial evidence of self-defense requiring
instruction may come from the defendant's testimony alone . . . [and] even when
th[e] evidence [supporting self-defense] is inconsistent with the defendant's
testimony.” State v. Westfall, 75 S.W.3d 278, 280–81 (Mo. 2002). “If the evidence
tends to establish the defendant’s theory, or supports differing conclusions, the
defendant is entitled to an instruction on it,” id. at 280, because “any conflict in the
evidence is to be resolved by a jury properly instructed on the issues.” State v.
White, 222 S.W.3d 297, 300 (Mo. App. W.D. 2007) (citation omitted; overruled on
other grounds by Barnett, 577 S.W.3d at 133).
In their briefing, Kelley and the State argue at length as to whether the force
Kelley used against Wilson constituted deadly force. The standards for establishing
self-defense vary, depending on whether the defendant employed deadly force.
Section 563.031.1 authorizes the use of physical force when and
to the extent a person reasonably believes such force is necessary to
defend from what that person reasonably believes to be the use or
imminent use of unlawful force by the other person. In contrast,
deadly force may only be used in self-defense when necessary to protect
oneself against death or serious physical injury. The use of deadly
force also requires “[s]ome affirmative action, gesture, or
communication by the person feared, indicating the immediacy of the
danger, the ability to avoid it, and the necessity of using deadly force.”
“Deadly force” includes physical force that a defendant uses
either with the purpose of causing or with knowledge it will “create a
substantial risk of causing death or serious physical injury.” “Serious
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physical injury” is statutorily defined as “physical injury that creates a
substantial risk of death or that causes serious disfigurement or
protracted loss or impairment of the function of any part of the body.”
The question of whether deadly force was used depends not only on the
amount of force used but also on the defendant's purpose to cause, or
awareness of the likelihood of causing, death or serious physical injury.
Westfall, 75 S.W.3d at 282 (footnote citations omitted).
In rejecting Kelley’s self-defense-related claims, the circuit court found
“[t]here was no evidence that the Movant was met with any use of unlawful force,
much less deadly force,” which would justify a self-defense instruction. This
conclusion was not clearly erroneous.
Only two witnesses testified to the incident for which Kelley was prosecuted:
Kelley himself, and Wilson. Kelley’s testimony cannot provide substantial evidence
requiring a self-defense instruction, because he did not testify that he intentionally
used force against Wilson at all. According to Kelley, he began slowly backing up
his truck while Wilson was standing beside the truck, not behind it. Kelley testified
that he merely wanted to get away from Wilson, and he specifically denied that he
was trying to run Wilson over. Kelley testified that he stopped driving his truck
backward when he saw Wilson behind it, and put the truck in a forward gear and
drove away.
Kelley’s testimony suggests that he never intended to cause physical injury to
Wilson, and that if his truck in fact approached Wilson as Kelley was backing up, it
was accidental (and was caused by Wilson moving behind the truck after Kelley
began driving in reverse). Kelley’s claim of a lack of intent to assault Wilson, and
that any contact or near-contact was accidental, may have provided the jury with a
basis to acquit him – but it did not constitute substantial evidence supporting a self-
defense instruction.
In Bruner, 541 S.W.3d 529, the Missouri Supreme Court found that a
defendant’s testimony that he had acted unintentionally in shooting a victim could
10
not support a self-defense instruction, for reasons that are equally applicable here.
The Court explained that a defendant’s argument that he was entitled to a self-
defense instruction was not
helped by his testimony that he suffered from acute stress disorder
which rendered his conduct in shooting Mr. Moore unintentional and
as if it occurred “in a dream.” That defense is inconsistent with self-
defense, which “constitutes an intentional but justified killing, whereas
accident connotes an unintentional killing. Self-defense and accident
are therefore inconsistent.” For this reason, an unintentional act, such
as Mr. Bruner’s description of the shooting “like it wasn't even me,” is
not consistent with self-defense. Of course, the fact Mr. Bruner
testified he did not deliberately shoot at the victim would not preclude
the submission of self-defense if other evidence had injected the
defense. But no other evidence was offered supportive of self-defense.
Id. at 538-39 (citations omitted). As in Bruner, Kelley’s testimony that he had no
intent of assaulting Wilson, and that any threat to Wilson’s physical safety caused
by Kelley’s driving was accidental, “is not consistent with self-defense.” While
Kelley’s testimony would not have foreclosed a self-defense instruction if other
evidence supported it, Kelley’s testimony itself does not provide an evidentiary basis
requiring that the jury be instructed on self-defense.
Wilson’s testimony likewise does not justify a self-defense instruction in this
case. Wilson testified at trial that Kelley began backing up his truck while Wilson
was standing at the back of Kelley’s truck, or as Wilson “stepped behind it.” At that
point, when Wilson was at the back of Kelley’s pickup truck, we fail to see how any
jury could find that Kelley was subject to “the use or imminent use of unlawful
force” by Wilson as required by § 563.031.1, RSMo. Wilson did not have a gun, a
projectile, or any other instrument with which he could have stricken Kelley from
his position behind the truck. Self-defense “requires a real, specific, actual and
immediate threat of bodily violence to which the defendant's actions are an
appropriate and proportional response.” State v. Harris, 870 S.W.2d 798, 809-10
(Mo. 1994). Wilson’s testimony concerning his location when Kelley began backing
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up his truck defeats any claim that Kelly was confronted with an “imminent use of
force” by Wilson.
Wilson’s testimony does not support the submission of self-defense for an
additional reason. According to Wilson, Kelley put his truck in reverse and backed
it up with full knowledge that Wilson was behind it. Wilson testified that Kelley
was looking at Wilson in his rear-view mirror as he backed up, glaring and snarling.
Wilson also testified that Kelley was revving the vehicle’s engine, and attempting to
use the truck’s full power to run Wilson over (although Wilson was able to lift the
truck’s tailgate enough that the tires spun on the gravel surface).
If the jury accepted Wilson’s testimony, the force which Kelley used could
only be characterized as “deadly force.” Wilson’s testimony that Kelley was angrily
and intentionally seeking to run him over, using the full power of his pickup truck,
established that Kelley was using “deadly force” – namely, “physical force which the
actor uses with the purpose of causing or which he or she knows to create a
substantial risk of causing death or serious physical injury.” § 563.011, RSMo.
Kelley did not have any justification for using deadly force against Wilson,
however. There was no evidence that Wilson was armed. While he was angry and
may have been yelling at Kelley as he approached Kelley’s vehicle, this would not
justify Kelley’s use of deadly force against him. The Supreme Court rejected a
similar self-defense claim in Bruner:
the only relevant evidence on Mr. Bruner’s objective and subjective
state of mind is that [the victim] was swearing and threatening him
and he believed [the victim] was about to make unwanted or offensive
contact by grabbing him. Such evidence is not sufficient to justify
deadly force. Words alone are insufficient to support a claim of self-
defense. Neither is deadly force justified in response to fear of being
grabbed or even punched. At best, Mr. Bruner showed a fear of a
simple assault or battery, but “[d]eadly force cannot be used to repel a
simple assault and battery.”
541 S.W.3d at 539 (citations omitted).
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Because neither Kelley’s testimony nor Wilson’s testimony would support a
self-defense instruction in this case, Kelley’s trial counsel was not ineffective for
failing to request such an instruction. Point I is denied.
In Point III, Kelley contends that his appellate counsel was ineffective for
failing to argue, in Kelley’s direct appeal, that the circuit court had plainly erred by
failing to instruct the jury on self-defense. As we have explained above, however, no
self-defense instruction was warranted here. “Appellate counsel is not ineffective
for failing to raise a non-meritorious claim on appeal.” Voss v. State, 570 S.W.3d
184, 194 (Mo. App. E.D. 2019) (citation and internal quotation marks omitted).
Point III is denied.
II.
Kelley’s second Point argues that, even if the existing trial record did not
justify submission of a self-defense instruction, his trial counsel was ineffective for
failing to elicit additional testimony from Kelley to inject the issue of self-defense.
The circuit court rejected this claim on the basis that Kelley’s amended
motion was deficient because it “only speculate[d] what might have been the
testimony of the Movant.” According to the circuit court, “[a] post-conviction
movant's speculation about testimony of prospective witnesses does not
demonstrate that he was prejudiced by his counsel's failure to secure testimony and,
thus, movant failed to prove ineffective assistance of counsel.” The circuit court
cited Tettamble v. State, 818 S.W.2d 331, 332 (Mo. App. S.D. 1991), to support its
characterization of Kelley’s allegations as “speculative”.
The circuit court clearly erred by rejecting Kelley’s claim on the basis that he
was merely speculating as to the testimony he could have offered at trial. Kelley’s
motion specifically alleged what his testimony would have been, if counsel had
inquired. This was enough. Without an evidentiary hearing, Kelley was of course
unable to prove what his trial testimony would have been. But his amended motion
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was not required to prove his claims for post-conviction relief – it was only required
to allege those claims. An amended motion is incapable of proving a movant’s right
to relief, and it is not deficient for failing to do so. The Tettamble case cited by the
circuit court is distinguishable for an obvious reason: in Tettamble, the post-
conviction movant was granted an evidentiary hearing. At that hearing, the movant
testified as to what he claimed other witnesses would have said, had they been
called to testify at his trial. 818 S.W.2d at 332. It is this secondhand hearsay
testimony of the movant at an evidentiary hearing – recounting what the movant
claimed other witnesses would have testified – which Tettamble characterized as
“speculation.” Id. Tettamble did not suggest that the allegations of an amended
motion, concerning what witnesses would have testified if called, constituted
improper speculation.
Though the circuit court’s reason for denying Kelley’s claim was erroneous,
we “may affirm the judgement on any legal ground supported by the record if the
motion court arrived at the correct result.” Greene v. State, 332 S.W.3d 239, 246
(Mo. App. W.D. 2010) (citation omitted). In this case, the allegations of Kelley’s
amended motion were insufficient to state a claim that he would have been entitled
to a self-defense instruction if his trial counsel had elicited further testimony from
him. As we have explained in § I, above, Kelley’s trial testimony was wholly
inconsistent with self-defense: he testified that Wilson was standing beside his
truck, not behind it, when Kelley began backing up; and Kelly also testified that he
never intended to use force against Wilson, but was merely trying to leave the
scene. In his amended motion, Kelley alleged that his trial counsel should have
elicited the following additional testimony from Kelley: that Kelley believed Wilson
was “coming at him; he feared that Wilson was about to drag him out of the truck;
and he could tell from Mr. Wilson’s angry demeanor that he was not willing to talk
calmly.” Kelley’s amended motion also alleged that he would have testified that he
14
reversed the truck in self-defense, believing the force used was necessary to defend
himself against Wilson’s imminent use of unlawful force with his hands.
Kelley’s claim that he would have testified that he used his truck in self-
defense, using only such force as was necessary to defend himself, is flatly
inconsistent with his trial testimony, where he testified that he did not
intentionally use any force whatsoever against Wilson. But the additional
testimony Kelley hypothesizes suffers from a more fundamental flaw. All of this
additional testimony relates solely to Kelley’s state of mind: what he believed; what
he feared; what he intended. None of it changes the facts to which he testified –
that Wilson was beside the truck when Kelley began reversing; that Kelley reversed
slowly only until he could drive away; that Kelley’s truck never hit Wilson; and that
Kelley never intended to run Wilson over. And Kelley’s state of mind, alone, could
not justify a self-defense instruction. Whether a defendant acted in lawful self-
defense is gauged using an “objective not a subjective standard.” Hendrix v. State,
369 S.W.3d 93, 99 (Mo. App. W.D. 2012) (citation and internal quotation marks
omitted). “The reasonableness of the belief [that use of force in self-defense is
necessary] is determined from an objective test that measures conduct based on
what a hypothetical ordinary reasonable and prudent person would have believed
and how they would have reacted.” Id. at 98 (citation and internal quotation marks
omitted); accord, State v. Edwards, 60 S.W.3d 602, 612 (Mo. App. W.D. 2001).
Thus, Kelley’s fears or beliefs as to what Wilson might do, or what Kelley thought
he had to do in response, could not establish a basis for a self-defense instruction,
without evidence of facts which would justify a hypothetical reasonable person in
sharing Kelley’s belief that the use of force was necessary.
The additional testimony Kelley postulates in his amended post-conviction
relief motion would not have required submission of a self-defense instruction, even
if his counsel had elicited it.
15
Point II is denied.
III.
In Point IV, Kelley claims that the circuit court clearly erred in denying his
claim that trial counsel was ineffective for failing to offer into evidence a video
recording in which Kelley’s friend, Randall VanEaton, stated that he had given
Kelley the wire found in Kelley’s truck. VanEaton was deceased by the time of trial.
VanEaton’s statements on the video recording were inadmissible hearsay. “A
hearsay statement is any out-of-court statement that is used to prove the truth of
the matter asserted and that depends on the veracity of the statement for its value.
Hearsay statements generally are inadmissible.” State v. Brandolese, 601 S.W.3d
519, 534-35 (Mo. 2020) (citations and internal quotation marks omitted). Kelley
was plainly seeking to introduce VanEaton’s statements for the truth of what
VanEaton asserted: that he had given Kelley the wire which Wilson later accused
Kelley of stealing.
Kelley has failed to identify any basis for admission of VanEaton’s hearsay
statements. In his amended motion, Kelley argued that the video would have been
admissible either under the “rule of completeness,” or to show VanEaton’s state of
mind. Neither principle would have established the admissibility of VanEaton’s
statements.
The rule of completeness provides that, “where either party introduces part of
an act, occurrence, or transaction, the opposing party is entitled to introduce or to
inquire into other parts of the whole thereof in order to explain or rebut adverse
inferences which might arise from the fragmentary or incomplete character of the
evidence introduced by his adversary.” State ex rel. Kemper v. Vincent, 191 S.W.3d
45, 50 (Mo. 2006) (citation and internal quotation marks omitted). “This rule seeks
to ensure that an exhibit is not admitted out of context.” State v. Ellis, 512 S.W.3d
816, 826 (Mo. App. W.D. 2016) (citation and internal quotation marks omitted). The
16
rule of completeness is not implicated here, however, because the State did not seek
to introduce into evidence any portion of VanEaton’s statement.
Nor were VanEaton’s hearsay statements admissible to establish his state of
mind.
An out-of-court statement of the declarant's present mental
condition is . . . admissible as an exception to the hearsay rule so long
as the statements are relevant and their relevancy outweighs their
prejudicial effect. This exception is generally limited to cases where
the hearsay declarations of mental condition are especially relevant.
State v. Taylor, 298 S.W.3d 482, 493 (Mo. 2009) (citations and internal quotation
marks omitted). VanEaton’s state of mind was not at issue in this case. In
addition, his statements concerning whether he had given wire to Kelley at some
point in the past would not have been relevant to show his mental state, even if his
state of mind was somehow relevant. See, e.g., State v. Bell, 950 S.W.2d 482, 484
(Mo. 1997) (to fall within “state of mind” exception, out-of-court statement must not
be a “mere ‘narration of past events,’” but “‘must refer to the intention, design or
state of mind of the declarant’” (footnote citations omitted)); State v. Martinelli, 972
S.W.2d 424, 436 (Mo. App. E.D. 1998) (“Statements which merely recount past
events do not fall within the state of mind exception unless they are a
‘contemporaneous statement of fear, emotion, or any other mental condition.’”;
finding exception inapplicable to “a narration which does not involve an indication
of a specific emotion”; quoting Bell, 950 S.W.2d at 484). The “state of mind”
exception to the hearsay rule is inapplicable here.
Because VanEaton’s recorded statements would not have been admissible,
Kelley’s trial counsel was not ineffective for failing to offer them in evidence. “Trial
counsel will not be found ineffective for failing to present inadmissible evidence.”
Tisius v. State, 519 S.W.3d 413, 422 (Mo. 2017) (rejecting claim that counsel was
17
ineffective for failing to offer hearsay evidence; citation omitted). The circuit court
did not clearly err in rejecting this claim without an evidentiary hearing.
Point IV is denied.
IV.
In Point VI, Kelley argues that his trial counsel provided ineffective
assistance when counsel failed to object to statements made during the
prosecution’s closing argument. Kelley contends that the following argument was
objectionable because it improperly suggested that the prosecutor had personal
knowledge of relevant facts, derived from extra-record sources:
So again, it really comes down to whether you’re going to believe Mr.
Wilson or you’re going to believe this ridiculous poop story that the
Defendant testified to. And I hate to just get up here and to say
something like that, but it’s frankly one of the silliest things I’ve heard
in my more than 30 years working in the criminal justice system, as a
police officer, as a private practice attorney, as a prosecutor, an
observer of the criminal justice system, and a teacher of criminal
justice and a teacher of police academy, I’ve heard it all, I thought.
Until today. I have never heard I pooped my pants as being a defense.
But that’s what you all heard.
The circuit court denied Kelley’s claim without an evidentiary hearing based
on its conclusions that the prosecutor’s closing argument was not improper; that the
argument was not prejudicial, even if it was objectionable, given the overwhelming
evidence of Kelley’s guilt; and that trial counsel’s decision not to object was a matter
of reasonable trial strategy.
The circuit court did not clearly err in concluding that an objection to the
prosecutor’s comments would not have been successful. To prevail on a claim of
ineffective assistance for failure to object, Kelley was required to show, at a
minimum, that “the objection would have been meritorious.” Hays v. State, 360
S.W.3d 304, 312 (Mo. App. W.D. 2012) (citation omitted).
18
“The State has wide latitude in closing argument . . . . The prosecutor has
the right to comment on the evidence and the witnesses, including their demeanor
and credibility, presented at trial from the State's viewpoint.” Harding v. State, 613
S.W.3d 522, 532 (Mo. App. E.D. 2020) (citation omitted). The State “may even
belittle and point to the improbability and untruthfulness of specific evidence.”
State v. McFadden, 369 S.W.3d 727, 752 (Mo. 2012) (citation and internal quotation
marks omitted). However, “[a] prosecutor may not argue facts outside the record” or
give a “statement of personal opinion or belief not drawn from the evidence,” as
such assertions “are apt to carry much weight against the accused when they should
carry none.” State v. Storey, 901 S.W.2d 886, 900 & 901 (Mo. 1995) (citations and
internal quotation marks omitted).
We do not condone the prosecutor’s reference in closing argument to his
thirty years of criminal justice-related experience. The prosecutor’s personal legal
experience was not in evidence, and it was irrelevant to any issue presented in
Kelley’s case. Nevertheless, the circuit court did not clearly err when it determined
that the prosecution’s closing argument was not improper, because in context it
constituted a comment on the evidence, and did not suggest knowledge of any extra-
record facts.
The Southern District faced a similar issue in State v. Riggs, 520 S.W.3d 788(Mo. App. S.D. 2016). Riggs found no plain error where a prosecutor’s closing
argument made reference to the fact that the prosecutor had made the decision to
file charges in this case, as opposed to other sexual-assault cases, based on his
assessment of the evidence in the present case. The prosecutor argued:
There's a lot of charges that come across the desk. . . . I'm talking
about these sexual crimes. And there are a lot of cases I receive that I
don't file on. It's not necessarily that I don't believe the victim, but
they're just not provable. Sometimes people are in divorce cases and
there's been a bunch of nonsense going on back and forth, and
sometimes there's neighbors and there's relative squabbles, you know.
19
And I've got to pick the ones that I think a jury will believe, you know.
Of course, sometimes I might see it a little differently than what you
all might see. That's why you're here to determine the facts. I do try
to pick the cases I think are serious, and this is a serious case. And I
happen to believe that the Defendant did just what he's charged with
in this case. Of course, you'll be the ultimate decider of that.
Id. at 804 (internal alteration omitted). The court found that this argument did not
amount to plain error:
Improper vouching occurs when the State implies that it has
facts establishing the veracity of witnesses and the truthfulness of its
case that are not before the jury for its consideration. The State may,
however, express personal opinions on matters, including guilt, where
they are fairly based on the evidence.
The challenged statements here, when taken in context,
expressed the prosecutor's view that: (1) this was not a case of
unsubstantiated charges between parties as part of an ongoing
dispute; and that (2) based on the evidence, Defendant was guilty of
the crimes charged. The argument did not imply a knowledge of
outside facts, nor did it improperly vouch for the credibility of the
state's witnesses.
Id. (citations omitted); see also State v. Black, 50 S.W.3d 778, 791–92 (Mo. 2001)
(finding no improper vouching on plain error review where prosecutor argued in
closing that, “I realize the magnitude of the decision that you have to make [about
imposing the death penalty], because I had to make it first”); State v. Chism, 252
S.W.3d 178, 187 (Mo. App. W.D. 2008) (argument that the State charged defendant
with a particular offense, because it believed that the evidence established that
offense, was not improper; “the prosecutor's comments did not imply that it based
the belief of defendant's guilt on any outside facts”); State v. Collins, 150 S.W.3d
340, 351-52 (Mo. App. S.D. 2004) (prosecutor’s closing argument suggested that if
law enforcement had intended to suborn perjury, the witnesses’ testimony would
have been perfectly consistent, and argued that prosecution was only interested in
“seeking justice,” and had “played it straight”; argument not improper because it
“did not assert personal knowledge from outside the record”).
20
In this case, the circuit court did not clearly err in concluding that the
prosecutor’s closing argument merely attacked the credibility of the explanation
Kelley had offered for why he was behind Wilson’s sawmill. Although the
prosecutor argued that he had never previously heard such a “ridiculous” story, the
prosecutor’s argument did not imply special knowledge of facts outside the record,
or outside the common experience of the jurors themselves. Because the
prosecutor’s argument could be read simply as attacking the credibility of Kelley’s
testimony, the circuit court did not clearly err in concluding that an objection to
that argument would have been unsuccessful, and that no evidentiary hearing was
required on this claim.
Point VI is denied.
V.
In Points V, VII, and VIII, Kelley argues that his trial counsel provided
ineffective assistance when he failed to present particular evidence at trial, or failed
to examine particular witnesses more fully. Because these claims are similar, and
because we conclude that Kelley was entitled to an evidentiary hearing on these
claims, we address them together.
A.
In Point VII, Kelley argues that his trial counsel was ineffective for failing to
cross-examine Wilson and Deputy Sadoorus concerning Wilson’s prior inconsistent
statements regarding the assault.
At Kelley’s trial, a critical area of disagreement between the testimony of
Kelley and Wilson was where Wilson was standing when Kelley began backing up
his truck. Wilson testified that he “crossed behind the pickup,” accused Kelley of
stealing copper, and then the pickup began backing up and hit him. On cross-
examination, Wilson indicated that Kelley’s truck “didn’t move until I said, hell,
you’re stealing copper,” which occurred “as [he] stepped behind” the truck. Wilson
21
specifically denied that “the pickup [was] moving before [he] stepped in behind it,”
or that “the pickup was moving as [he was] stepping behind it.”
On the other hand, Kelley testified that Wilson was standing beside Kelley’s
truck when Kelley began backing up, and that Wilson thereafter moved to the back
of the truck, at which point Kelley stopped backing, put his truck in a forward gear,
and left.
Deputy Sadoorus interviewed Wilson shortly after the alleged assault. The
report Deputy Sadoorus prepared stated:
Wilson stated he took a few steps and looked into the bed of the truck
and noticed rolls of electrical wire. Wilson then stated to the driver
“You have been stealing wire.” The driver then started to back the
truck up to leave and Wilson went to the rear of the truck to
obtain the license number.
(Emphasis added.)
Although Kelley’s trial counsel had a copy of Deputy Sadoorus’ report, he did
not question Wilson or Deputy Sadoorus about it. Kelley alleged in his amended
motion for post-conviction relief that counsel’s failure to exploit Wilson’s prior
inconsistent statement constituted ineffective assistance of counsel. The circuit
court denied this claim without an evidentiary hearing, finding that Kelley was not
prejudiced because “the inconsistencies were insignificant and considering the vast
evidence of guilt adduced at trial, the outcome of the trial was not influenced.”
The circuit court clearly erred in rejecting this claim without an evidentiary
hearing. We recognize that
[f]ailure to impeach a witness does not generally warrant relief for
ineffective assistance of counsel where the facts, even if true, do not
establish a defense. The decision to impeach is presumed to be a
matter of trial strategy, and to overcome such presumption, a movant
must demonstrate that the decision was not a matter of trial strategy
and that the impeachment would have provided him with a defense or
would have changed the outcome of the trial.
Wren v. State, 313 S.W.3d 211, 219 (Mo. App. E.D. 2010) (citations omitted).
22
Despite this general principle, however, an attorney’s failure to cross-
examine prosecution witnesses with their prior inconsistent statements may
constitute ineffective assistance of counsel justifying post-conviction relief, if the
prior inconsistent statements “related directly to the central issue,” “the key issue
in contention between the parties.” Black v. State, 151 S.W.3d 49, 56 (Mo. 2004).
In Black, the Missouri Supreme Court explained that impeachment with a prior
inconsistent statement is only considered to be “collateral” “if the fact in dispute is
of no material significance in the case or is not pertinent to the issues developed.”
Id. at 55 (citation and internal quotation marks omitted). On the other hand, a
prior inconsistent statement is not considered collateral “if the alleged discrepancy
involves a crucial issue directly in controversy or relates to any part of the witness'
account of the background and circumstances of a material transaction.” Id.
(citation and internal quotation marks omitted).
Wilson’s statement on the day of the assault, as recorded in Deputy Sadoorus’
report, is directly contrary to Wilson’s trial testimony. In fact, Wilson’s
extrajudicial statement corroborates Kelley’s version of events: that he began
backing up while Wilson was beside his truck, and that Wilson thereafter moved
behind the truck.
The discrepancy between Wilson’s trial testimony and his prior statement
does not involve a collateral matter. As Kelley’s Brief argues, Wilson’s position at
the time Kelley’s truck began moving was “one of the key facts in contention, if not
the key fact in contention, at trial: whether Mr. Wilson was beside or behind the
truck when Mr. Kelley began to back up.” Wilson’s location was critical to
determining whether Kelley drove his truck in reverse with the purpose of causing
serious physical injury to Wilson (an essential element of first-degree assault), or
whether Kelley was instead merely moving his truck in order to get away from
Wilson and avoid an escalating confrontation.
23
In its Brief, the State seeks to minimize the significance of Wilson’s prior
inconsistent statement by emphasizing that
Wilson testified repeatedly at trial that appellant’s truck did not
start moving until after he was behind the truck. Wilson said that as
he was crossing behind the pickup he saw the wire and made the
comment about stealing wire. Wilson consistently testified on cross
that the truck did not move until he was behind it. Wilson denied that
the truck was moving as he stepped behind it. Wilson said as he
stepped behind it, he looked in the bed and saw the wire, made the
stealing comment, and then the truck moved. . . . Given Wilson’s
repeated consistent statements, Dep. Sadoorus’s police report would
not have been of great impeachment value, especially given that
Wilson did not write out the report or make a written statement to the
police.
(Record citations omitted.) By highlighting that Wilson “repeatedly” testified at
trial that Kelley only began to back his truck after Wilson was behind it, the State’s
own argument demonstrates the significance of the inconsistent statement Wilson
made to Deputy Sadoorus on the day of the assault itself. If it was critical to the
prosecution’s case that Wilson “repeatedly” testify that he was behind Kelley’s truck
when Kelley began backing, it would be equally critical to Kelley’s defense to show
that Wilson had previously said exactly the opposite.1
The circuit court was also mistaken in characterizing this issue merely as one
of “impeachment.” As Kelley specifically argued in his amended motion, Missouri
law provides that “a prior inconsistent statement of any witness testifying in the
trial of a criminal offense shall be received as substantive evidence, and the party
offering the prior inconsistent statement may argue the truth of such statement.”
1 The State also argues that “the statement in the police report was likely not
correct,” because “Wilson would not have made the statement regarding stealing wire
without having seen the wire in the back of the truck and this would not have been visible
to him until he walked to the back of the truck.” The State’s argument ignores that Kelley’s
pickup truck had an open bed. Therefore, Wilson would have been able to look into the
truck’s bed as easily when standing beside the truck, as when he was behind it. In any
event, any potential inaccuracy in Deputy Sadoorus’ report cannot be resolved without an
evidentiary hearing.
24
§ 491.074, RSMo. In light of this principle, “courts have recognized that ‘a prior
inconsistent statement can be the sole basis for a guilty verdict.’” State v. Betts, 559
S.W.3d 47, 55 (Mo. App. E.D. 2018) (citation omitted). If Kelley’s counsel had
confronted Wilson with his prior inconsistent statement, and laid a foundation for
its admission, that statement would have served as substantive evidence
corroborating Kelley’s testimony that Wilson was located beside his truck – and
thus out of harm’s way – when Kelley began to back up his truck in order to leave,
and that Wilson put himself in danger by stepping behind Kelley’s moving truck in
order to try to record Kelley’s license plate number.
Despite the circuit court’s assertion that there was “vast evidence of [Kelley’s]
guilt adduced at trial,” in its closing argument the State itself recognized that the
case “goes back to credibility. Who is more credible?” The State recognized that the
only two witnesses to the purported assault provided conflicting accounts of what
transpired between them, and that the jury’s primary task was to resolve that
conflict. Wilson’s prior inconsistent statement could have had a significant effect on
the jury’s assessment of Wilson’s and Kelley’s relative credibility. Trial counsel’s
failure to exploit that statement cannot be dismissed, without an evidentiary
hearing, on the basis that the evidence of Kelley’s guilt was overwhelming.
Kelley was entitled to an evidentiary hearing on his claim that his trial
counsel was ineffective for failing to cross-examine Wilson concerning the statement
recorded in Deputy Sadoorus’ report. Point VII is granted.
B.
In Points V and VIII, Kelley challenges the circuit court’s rejection of two of
his other claims, which argued that his trial counsel should have elicited additional
testimony, or more fully cross-examined one of the State’s witnesses. We conclude
that the grounds on which the circuit court rejected these claims, without an
evidentiary hearing, were clearly erroneous. We also conclude that an evidentiary
25
hearing on these additional claims is warranted, particularly in light of our remand
for further proceedings on Kelley’s claim concerning Wilson’s prior inconsistent
statement.
In Point V, Kelley argues that his trial counsel was ineffective for failing to
elicit additional testimony from defense witness John Krahenbuhl. Krahenbuhl
testified at Kelley’s trial solely as a character witness. Kelley’s amended motion
alleges that his counsel should have elicited additional testimony from Krahenbuhl,
that he had seen the wire in the back of Kelley’s truck several days prior to the date
of the alleged assault. According to Kelley, this testimony would have corroborated
his own testimony, and rebutted the State’s claim that Kelley had stolen the wire
from Wilson’s sawmill, giving Kelley a motive to assault Wilson.2
A claim of ineffective assistance based on counsel’s failure to investigate and
present evidence in support of a defense may be found when a movant specifically
alleges and proves “what ‘information his attorney failed to discover, that a
reasonable investigation would have revealed it, and how the information would
have aided his position.’” Anderson v. State, 66 S.W.3d 770, 776 (Mo. App. W.D.
2002) (quoting Jones v. State, 24 S.W.3d 701, 704 (Mo. App. E.D. 1999)).
2 Notably, the trial transcript contains some discussion between Kelley and his
trial counsel concerning whether the defense should present testimony from Krahenbuhl to
rebut the State’s suggestion that Kelley was stealing wire. When defense counsel called
Krahenbuhl to testify, he informed the court that Krahenbuhl was being called solely as a
character witness. Defense counsel advised the court that he would not ask Krahenbuhl
about whether Kelley was stealing wire, because “[h]e’s not charged with stealing wire.”
The following exchange then occurred between Kelley and his attorney:
[Kelley]: . . . But I've also got the evidence about the wire.
[Trial counsel]: No. We're not talking about that. You're not charged
with that.
[Kelley]: Yeah, but see that's why he said that – he said that – he left
– I left his place and he thought I was stealing. Then he said he tried to kill
me after I tried to run him over. That's two conflicting [versions of events].
26
The circuit court rejected Kelley’s claim concerning Krahenbuhl’s testimony
on two grounds: (1) that Kelley was not prejudiced by counsel’s failure to present
this testimony because Wilson “acknowledged under cross-examination by trial
counsel that he didn’t know for sure if the wire in the back of [Kelley’s] truck came
from his sawmill”; and (2) that Kelley was merely engaging in “speculation”
concerning what Krahenbuhl’s testimony would have been (citing Tettamble, 818
S.W.2d 331).
As we explained in § II, above, Kelley’s claim concerning Krahenbuhl’s
testimony cannot be dismissed as “speculation” under Tettamble, because Kelley
has not been given an opportunity to prove the substance of Krahenbuhl’s testimony
at an evidentiary hearing.
Likewise, the circuit court’s rejection of this claim cannot be affirmed on the
basis that it was not contested at trial whether Kelley had stolen the wire. During
Kelley’s trial, the State repeatedly referred to the allegedly stolen wire as Kelley’s
motive for assaulting Wilson; it also highlighted the fact that Kelley removed the
wire from the truck, when he abandoned it on Corps of Engineers property, as
evidence demonstrating Kelley’s consciousness of guilt. In closing arguments alone,
the State referenced the stolen wire seven separate times. Indeed, the State’s last
comments to the jury focused on the stolen wire:
I don't know if I have too much more to say about all of this. I
think it's just, again, a common sense thing. You know, the Defendant
tried to run over Bill Wilson that day. I think you can reasonably infer
that he was back there behind the sawmill, was in the process of
stealing him some wire, he got spooked by Bill Wilson showing up to
check his mail, he ran down the highway. He didn't want to go back to
prison again, so he tried to run over the guy who was a witness.
Thank you.
On direct appeal, when this Court rejected Kelley’s claim that admission of evidence
concerning the wire constituted plain error, we specifically observed that “evidence
of the wire [was] relevant in establishing Kelley's intent and motive to strike Wilson
27
with his pickup truck.” State v. Kelley, 507 S.W.3d 181, WD78735, mem. at 10-11.
As the State itself argued in closing, whether Kelley had stolen wire from Wilson
was highly relevant to deciding whether Kelley was attempting to kill or cause
serious physical injury to Wilson by running him over, or was instead merely trying
to flee from an angry confrontation.
It is also significant that Kelley testified that he had acquired the wire which
Wilson saw in the back of his truck from a friend, and that the wire had been in the
bed of his truck for two weeks before his encounter with Wilson. Krahenbuhl’s
testimony would have provided important corroboration for Kelley’s testimony.
In Point VIII, Kelley argues that his counsel was ineffective for failing to
more fully cross-examine Detective Lee Hilty concerning his analysis and conclusion
of the tire marks found at the crime scene. At trial, Detective Hilty testified to his
observations of the tire tracks at the scene; he testified that “was able to kind of
figure out just from what was laid on the ground that [Wilson’s] story matched what
was – what was laid out on the ground as far as tire tracks and such.”
The circuit court denied Kelley’s claim of ineffective assistance without an
evidentiary hearing, stating that Detective Hilty’s testimony “was not expert
testimony and did not require expert knowledge to testify what any witness could
conclude.” The fact that Detective Hilty may not have been testifying as an expert,
even if accurate, would not fully resolve Kelley’s claim. In his amended motion,
Kelley alleged that his trial counsel should have cross-examined Detective Hilty
concerning several weaknesses and gaps in his observations. Thus, the amended
motion argued that counsel should have elicited testimony that Detective Hilty
had minimal experience in collision reconstruction, had no experience
in the mathematical analysis of crime scenes, collected no data from
the scene, arrived more than two hours after the incident, and had no
way of knowing for certain the tire marks belonged to Mr. Kelley’s
vehicle. It was imperative that counsel question Officer Hilty’s
qualifications and experience, the correctness of the facts upon which
28
his opinion was based, the correctness and accuracy of the methodology
used, and the gaps in that methodology. Insofar as counsel failed to
cross-examine Officer Hilty, his performance was deficient.
The core issue in Kelley’s trial was assessing the relative credibility of Wilson
and Kelley. Detective Hilty’s testimony “that [Wilson’s] story matched” the tire
tracks Detective Hilty observed was important corroboration for Wilson’s testimony.
Detective Hilty’s testimony may have been undermined in the jury’s eyes if Kelley’s
trial counsel had emphasized on cross-examination that Detective Hilty arrived on
the scene over two hours after the incident occurred; that the tracks he observed
could have come from other vehicles, or been altered by other vehicles; and that
Detective Hilty did not take measurements or collect other data.
Trial counsel’s failure to elicit additional testimony from Krahenbuhl, or to
more vigorously cross-examine Detective Hilty, may not present the same prospect
of prejudice as counsel’s failure to exploit Wilson’s prior inconsistent statement. In
determining whether Kelley was prejudiced by counsel’s incompetence, however, the
circuit court must assess the cumulative prejudicial impact of all deficiencies. See,
e.g., Myers v. Neal, 975 F.3d 611, 623 (7th Cir. 2020) (“Where, as here, the record
shows more than one instance of deficient performance, the Sixth Amendment
requires that we approach the prejudice inquiry by focusing on the cumulative effect
of trial counsel's shortcomings.”); White v. Ryan, 895 F.3d 641, 671-72 (9th Cir.
2018); Evans v. Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1269 (11th Cir. 2012) (“the
prejudice inquiry should be a cumulative one as to the effect of all of the failures of
counsel that meet the performance deficiency requirement”); Richards v.
Quarterman, 566 F.3d 553, 564, 571-72 (5th Cir. 2009).
Therefore, to the extent the circuit court concludes on remand that Kelley’s
trial counsel performed inadequately in failing to confront Wilson with his prior
inconsistent statement; in failing to elicit testimony from Krahenbuhl concerning
the wire in Kelley’s truck; and/or in failing to cross-examine Detective Hilty more
29
thoroughly, the court must consider the cumulative prejudicial effect of those
deficiencies in determining whether Kelley is entitled to post-conviction relief.
Points V and VIII are granted.
Conclusion
The judgment of the circuit court denying Kelley’s amended motion for post-
conviction relief without an evidentiary hearing is affirmed in part and reversed in
part, and the case is remanded for further proceedings consistent with this opinion.
____________________________________
Alok Ahuja, Judge
All concur.
30