Not Objecting to Prosecutor's Offering of Fifth Amendment Protections from a Civil Deposition Is Ineffective Assistance of Counsel: Christian v. State.

• Author: Meyer, Anthony J.
• Position: NOTE - Case overview

1. INTRODUCTION

   Supreme Court of Missouri Rules 24 and 29 provide the exclusive mechanism for post-conviction relief in Missouri. (1) Rule 29.15 outlines the procedure for relief following a felony conviction, and the standard it uses is the two-prong test provided by the United States Supreme Court in Strickland v. Washington (2) A person who has been convicted of a felony must file a motion under Rule 29.15. (3) Not all movants have the right to an evidentiary hearing. (4) Those movants who do proceed to evidentiary hearings have the burden of proving by a preponderance of the evidence that trial counsel failed to exercise the skill and diligence that reasonably competent counsel would use in a similar situation and that the movant was prejudiced in that there was a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. (5)

   The movant must overcome the strong presumption, however, that trial counsel's conduct fell within the wide range of reasonable trial strategy; (6) the movant must show otherwise, and as the United States Supreme Court said in Strickland, the notion of trial strategy can encompass countless scenarios. (7)

   In light of this statement, defense attorneys have the leeway to tailor their trial strategies to unique situations. By contrast, this Note argues that defense attorneys might benefit if Missouri courts choose to chip away at the nebulous catchall of trial strategy and delineate some clear boundaries as to what is and what is not sound trial strategy in the most egregious cases. Doing so would better equip trial counsel with the knowledge of how to try a case effectively and ease the burden of movants in post-conviction relief cases. As a result, the overall quality of justice in Missouri courts would improve.

   Accordingly, the Missouri Court of Appeals, Southern District, recently announced an issue of first impression in Christian v. State. (8) Trial counsel failed to object when the prosecutor read a portion of a deposition transcript to the jury from a related civil proceeding in which Vernon George Christian, the defendant in the criminal case, asserted his Fifth Amendment right to avoid self-incrimination. (9) The Southern District said that, in this instance, failure by trial counsel to object was ineffective assistance of counsel and Christian was prejudiced as a result. (10) This Note argues that this result represents a positive development in Strickland jurisprudence in Missouri.

2. FACTS AND HOLDING

   In November of 2007, James King realized that he had not received a property tax bill for a piece of property he purchased in 2004 in Taney County that consisted of some land and a cabin. (11) When he called the Taney County Collector's Office, he was told that he no longer owned the property. (12) A deed purportedly signed by him had transferred the property to Christian and Mike Olson on November 22, 2006. (13) The deed had been notarized by Edmund E. Barker and registered at the Taney County Collector's Office. (14)

   King filed a civil suit against Christian, and after a bench trial the deed was transferred back to King. (15) In a subsequent criminal case, Christian was tried by a jury on November 22 and 23, 2010, in the Circuit Court of Taney County. (16) The jury returned a guilty verdict on one count of forgery, and Christian was sentenced to six years' imprisonment. (17)

   At the criminal trial, King testified that he had never seen the deed Christian signed before it was shown to him at the collector's office. (18) King said that he had never met Christian and that no one had paid him money for the property, removed him of his mortgage obligation, or paid property taxes on the property since he acquired it in 2004. (19) Handwriting expert Don Lock testified that King's signature on the deed appeared not to be genuine and that, after comparing a signature Christian wrote in the Taney County Sheriff's Office, the evidence pointed to Christian as the author. (20)

   During the State's case in chief, the prosecutor read a portion of Christian's deposition from the earlier civil suit. (21) The deposition included references to Christian's invocation of his Fifth Amendment right to refuse to answer questions that would implicate him in the pending criminal case. (22) The prosecutor read the following lengthy exchange from the civil deposition into evidence at the criminal trial:

   Q. Okay. How much did you pay for [the property]? Are you going to assert your Fifth Amendment right, sir?

   A. Yes.

   Q. Okay. And how much--did you tell me how much you paid for it?

   A. No, I didn't.

   Q. Do you remember or know?

   A. I wasn't going to tell you.

   Q. Okay. How much did you pay for it?

   A. I'm going to stand on the Fifth Amendment. That's my business.

   Q. Okay. Now, then, when--what were the circumstances that Mr. King would bring you this deed?

   A. I'll stand on that.

   Q. On your Fifth Amendment rights?

   A. Yeah.

   Q. So you're refusing to answer any questions about the circumstances of this deed being brought to you based on your Fifth Amendment rights?

   A. Yes, sir.

   Q. Okay. If I were to ask you any questions concerning the petition that was filed, would you also assert your Fifth Amendment rights and not answer those questions?

   A. Probably so.

   Q. Well, I mean visit with your attorney.

   A. Ask, and I'll tell you yes or no.

   Q. If I were to ask you any questions concerning the petition that was filed, the deed, the transaction where you claim Mr. King sold or conveyed this property to you, would you assert your Fifth Amendment rights?

   A. Yes.

   Q. Let me ask this question. When Mr. King brought this deed to you, did any money change hands? You may want to visit with your attorney.

   A. I'll stand on the Fifth on that.

   Q. And when Mr. King brought you Exhibit 1 in 2006, did you pay him any money?

   A. I'm going to stand on the Fifth on that.

   Q. Okay. Okay. I'm about done, sir. I just want to reiterate that if I were to ask you about the allegations of the petition or the transactions that you--whereby you claim ownership of the property or claim Mr. King gave you the deed that's Exhibit 1, you would assert your Fifth Amendment rights and not answer those questions; is that correct?

   A. Yes, sir. (23)

   Christian's trial counsel did not make a contemporaneous objection during this reading. (24)

   The next day, trial counsel motioned for a mistrial on the grounds that the exchange from the civil deposition was read into evidence in violation of Christian's Fifth Amendment privilege against self-incrimination. (25) Trial counsel motioned for a mistrial outside the hearing of the jury so as not to reinforce the jury's remembrance and highlight the testimony. (26) While arguing the motion for a mistrial, trial counsel said that he did not believe the prosecutor was going to read Christian's Fifth Amendment invocations into evidence. (27) Trial counsel said, "I may have been wrong in that, Judge, and frankly I may have been ineffective in that." (28) In arguing against the mistrial, the prosecutor said that the Fifth Amendment invocations would not be referenced again. (29) The court denied the request for a mistrial, saying that Christian's Fifth Amendment invocations did not have anything to do with Christian's guilt or innocence in the criminal case. (30) The trial court did not instruct the jury regarding the invocations. (31)

   Christian testified in his own defense. (32) He said that he bought the property at a tax sale in 1987 and that King had lived on the property. (33) When Christian heard King claim that he owned the property, Christian threatened to file suit. (34) According to Christian, King then brought Christian the signed and notarized deed, but the recorder of deeds refused to record it because it had been notarized in the wrong place. (35) Christian admitted that he had a friend named Edmund E. Barker (36) re-notarize the deed, which was then recorded. (37) Christian explicitly denied that he had forged King's signature on the deed. (38) After Christian was convicted, he made a direct appeal to the Southern District, which affirmed the conviction. (39)

   Christian was granted an evidentiary hearing after making a Rule 29.15 motion, and the same judge presided over it as had presided over the criminal trial. (40) Christian argued that because prosecutors are prohibited from using a defendant's invocation of the Fifth Amendment as proof of guilt, any reasonably competent trial counsel would have objected at the prosecution's use of Christian's invocations during the civil deposition. (41) In contrast, the state argued that because it is not clear whether in Missouri such evidence is actually inadmissible, the reviewing court cannot merely accept the conclusion that reasonably competent trial counsel would have objected. (42)

   At the evidentiary hearing trial counsel testified that he was aware the State intended to offer Christian's statements from the deposition into evidence but that he had not anticipated the prosecutor would read Christian's Fifth Amendment invocations. (43) When asked why he did not make a contemporaneous objection, trial counsel said,

   There are certain things that you simply believe that a prosecuting attorney acting in good faith would understand are so far out of bounds as to not use, and you get shocked and surprised at trial when they're brought up. And so I should have objected, but was quite surprised that they were being used. (44) Trial counsel said he did not know why he did not immediately motion for a mistrial but that when he "regained a little bit of composure," he requested one the next day. (45) Trial counsel did not expressly argue at the evidentiary hearing that this was a strategic choice. (46)

   The motion court denied Christian's motion and found that Christian did not meet his burden for showing ineffective assistance of counsel. (47) The motion court found that trial counsel made a clear record of his...