ALPHONSE AVILA, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent

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ALPHONSE AVILA, Movant-Appellant, v. STATE OF MISSOURI, Respondent-Respondent.

No. SD38960

APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY Honorable C. Wade Pierce, Judge AFFIRMED Alphonse Avila ("Movant") appeals the trial court's denial of his Rule 29.15 1

motion for post-conviction relief on the basis of ineffective assistance of counsel. In his sole point on appeal, Movant claims his trial counsel ("Counsel") was ineffective for failing to file an amended version of a previously denied motion to disclose the identity of a confidential informant ("the CI") to testify to Movant's entrapment defense. As we

1 All rule references are to Missouri Court Rules (2024).

In Division

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agree with the motion court that Counsel was not ineffective and such decision constituted reasonable trial strategy, we affirm. Facts and Procedural History On January 14, 2019, undercover Missouri State Highway Patrol Officer Travis Templemire ("Templemire"), was introduced to Movant by the CI. Templemire and the CI called Movant over Facebook Messenger to purchase approximately 3.5 grams of methamphetamine. Movant gave them the price, after which Templemire and the CI received a text telling them to come over to Movant's residence. Templemire, the CI, and Movant made small talk at Movant's residence while waiting on a dealer to arrive. It was eventually decided that they would meet the dealer at a movie theater. Movant, Templemire, and the CI rode to the movie theater together in the CI's car. When the dealer did not show up, Movant provided a different location less than two-thousand feet from the Poplar Bluff Junior High School where Movant obtained a gram of methamphetamine he "had in reserve" from a different dealer. Templemire, the CI, and Movant started driving back towards Movant's house with the methamphetamine when they were stopped by law enforcement and Movant was arrested for outstanding warrants. On January 29, 2019, Templemire went back to Movant's residence to purchase methamphetamine. When the dealer arrived at the residence, Movant went outside to get the methamphetamine and pay the dealer. Movant came back inside, weighed the methamphetamine, and took some of the substance out of the bag to keep as a "finder's fee" for himself.

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Movant was charged with one count of the class A felony of distribution of a controlled substance in a protected location (§579.030) 2 and one count of the class C felony of delivery of a controlled substance (§579.020). Movant's previous counsel filed a motion for disclosure of the CI's identity on November 22, 2019, claiming the CI "has personal knowledge of the alleged offenses, and is a material witness to the [Movant's] defense in this case." The trial court overruled Movant's motion on February 8, 2020, finding the "request is based upon speculation and conjecture." Prior to trial, Counsel took over Movant's defense and did not file an amended motion or otherwise seek to revisit the trial court's previous denial of the motion to disclose the CI's identity. During the jury trial, Movant elected to take the stand and testify. Movant stated that he had a previous felony conviction for possession of a controlled substance, and he has struggled with a methamphetamine addiction throughout his life. Movant also testified that, if not for Templemire and the CI inducing him to obtain drugs for them, he would not have purchased methamphetamine that day. Movant was convicted of both charges. Movant's conviction was affirmed by this Court on direct appeal in State v. Avila, 672 S.W.3d 886 (Mo. App. S.D. 2023). Movant prematurely filed a pro se motion for post-conviction relief on November 9, 2022. Post-conviction relief counsel was appointed for Movant and an amended post-conviction relief motion was filed on December 22, 2023, after the direct appeal concluded. The motion court determined the pro se motion

2 Unless otherwise indicated, all statutory references are to RSMo 2016, as amended through July 20, 2022.

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was timely filed, but found the amended motion under Rule 29.15 was filed one day late due to a "math mistake" on the part of post-conviction relief counsel. The motion court held that post-conviction relief counsel had abandoned Movant, and accepted the amended motion as timely filed. The State does not challenge this finding on appeal and it does not appear from the record that such finding is clearly erroneous. Movant's amended post-conviction relief motion claims Counsel was ineffective because she failed to "make an amended motion for disclosure of CI's identity as a material witness whose testimony was crucial to Movant's defense of entrapment." Movant's amended post-conviction relief motion did not present any new evidence or information to support such argument. The motion court held a hearing on Movant's motion for post-conviction relief on July 26, 2024. At the evidentiary hearing, Movant testified he knew the CI through his fiancée and she sent the CI and the undercover officer their home address over Facebook Messenger. He further testified the CI and the undercover officer arrived at his house uninvited and stayed at the home for hours because they wanted Movant to get them methamphetamine. He stated: [i]t was to the point where I was – I left with them just to get them out of the house. And then they kept me out, wouldn't take me home. And I told them I couldn't get them nothing several different times. I pretty much felt like I was kidnapped.

Counsel testified at the hearing she did not revisit the motion to disclose the CI's identity because, as she had advised Movant pre-trial, "[t]he [CI] [could] come in and say things that undermine [the] entrapment allegation. And the Facebook communications

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didn't lead me to believe that the [CI] would necessarily advance [Movant's] theory and so I did not pursue that further." Counsel also testified she did not want Movant to go to trial. She further advised Movant the risk of testifying was high because his prior convictions would come up and she did not think Movant's testimony would establish an entrapment defense. Following the evidentiary hearing, the motion court denied Movant's motion for post-conviction relief and held Counsel's assistance was not ineffective. In its judgment denying Movant post-conviction relief, the motion court concluded "[C]ounsel cannot be faulted for failing to pursue a meritless course of action, and on this record the [c]ourt finds any such effort to reverse the court's prior ruling, with no new, additional or changed information, would have been meritless." This appeal followed. Standard of Review This Court's review of the denial of a motion for post-conviction relief is limited to whether the motion court's findings of fact and conclusions of law are clearly erroneous. Holman v. State, 694 S.W.3d 484, 489 (Mo. App. S.D. 2024) (citing Huckleberry v. State, 674 S.W.3d 801, 802 (Mo. App. S.D. 2023)). "The motion court's findings of fact and conclusions of law are clearly erroneous if the appellate court is left with the definite and firm impression that a mistake has been made." Id. (citing Lawrence v. State, 628 S.W.3d 777, 779 (Mo. App. S.D. 2021)). We presume the motion court's findings are correct. Flaherty v. State, 694 S.W.3d 413, 416 (Mo. banc 2024). We also defer to the motion court's "superior opportunity to judge the credibility of

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witnesses." Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019) (quoting Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016)). To prevail on a claim of ineffective assistance of counsel, Movant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Namely, he must show by a preponderance of the evidence that "(1) his trial counsel failed to exercise the level of skill and diligence that a reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure." Hosier, 593 S.W.3d at 81 (quoting Davis, 486 S.W.3d at 905). Movant must "overcome the strong presumption that trial counsel's conduct was reasonable and effective." Id. "Prejudice occurs when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Analysis In his sole point on appeal, Movant claims he received ineffective assistance of counsel because Counsel did not file an amended motion renewing his request to disclose the identity of the CI to testify specifically to his entrapment defense. Movant further claims he was prejudiced because he would not have testified and his prior convictions would not have been mentioned if the CI was made available to testify. 3 We disagree.

3 Both the United States Supreme Court and Missouri courts recognize "the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with that enforcement[.]" State v. Beard, 442 S.W.3d 84, 90-91 (Mo. App. S.D. 2014) (quoting Roviaro v. United States, 353 U.S. 53, 59 (1957)). This privilege includes instances where the informant "actually assists law enforcement with an undercover transaction" in addition to providing information. Id. at 91 (citing State v. Coleman, 954 S.W.2d 1, 5-6 (Mo. App. W.D. 1997)). There are exceptions to the rule based on fundamental fairness and some cases where disclosure of the confidential informant's identity is "essential to enable defendant to adequately establish a defense." Id. (citing State v. Sproul, 786

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Counsel's decision not to call a witness as a matter of trial strategy is "virtually unchallengeable." Hosier, 593 S.W.3d at 88 (citing Deck v. State, 381 S.W.3d 339, 346 (Mo. banc 2012)). "When defense counsel believes a witness' testimony would not unequivocally support his client's position, it is a matter of trial strategy not to call him, and the failure to call such witness does not constitute ineffective assistance of counsel." Phillips v. State, 214 S.W.3d 361, 367 (Mo. App. S.D. 2007) (quoting Fortner v. State, 186 S.W.3d 910, 912 (Mo. App. S.D. 2006)). In the instant case, Counsel's decision not to file an amended motion seeking to disclose the CI's identity was not ineffective assistance of counsel. 4 Counsel testified that she did not think the CI's testimony, based on the Facebook messages in evidence, would have unequivocally strengthened or bolstered Movant's defense. Indeed, Counsel testified she expressed concern to Movant prior to trial that having the CI testify could actually undermine his entrapment defense. Counsel opting to avoid highlighting "potentially unfavorable evidence" is reasonable trial strategy. Cook v. State, 675 S.W.3d 722, 728 (Mo. App. S.D. 2023) (citing Balbirnie v. State, 649 S.W.3d 345, 356 (Mo. App. W.D. 2022)). Further, the record does not disclose any new information, evidence or authority that Movant asserts Counsel could have used to try to convince the trial court

S.W.2d 169, 171 (Mo. App. W.D. 1990)). The defendant bears the burden of establishing a record that shows disclosure is necessary. Id.

4 Movant argues Counsel should have filed an amended motion because the original motion seeking disclosure did not allege that the CI was needed to testify in support of Movant's entrapment defense. The original motion, previously heard and denied by the trial court, already contained an allegation that the CI was "a material witness to [Movant's] defense in this case."

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to reverse its previous ruling. "Reasonable choices of trial strategy, no matter how ill- fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance." Blade v. State, 685 S.W.3d 633, 638 (Mo. App. S.D. 2024) (citing Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006)). Based on this record, Counsel's decision not to revisit the motion to reveal the CI's identity constitutes reasonable trial strategy and does not amount to ineffective assistance of counsel, and the motion court's findings to that effect were not clearly erroneous. Point denied. Conclusion The motion court's denial of post-conviction relief is affirmed.

MATTHEW P. HAMNER, J. – OPINION AUTHOR DON E. BURRELL, J. – CONCURS BECKY J. WEST, J. – CONCURS