Wendell Maynard, Appellant v. State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Wendell Maynard, Appellant v. State of Missouri, Respondent. Case Number: WD58122 Handdown Date: 05/14/2002 Appeal From: Circuit Court of Jackson County, Hon. David W. Shinn Counsel for Appellant: Jacqueline K. McGreevy Counsel for Respondent: Philip M. Koppe Opinion Summary: Wendell Maynard appeals the motion court's judgment denying his Rule 29.15 motion for postconviction relief without an evidentiary hearing. He claims his trial counsel was ineffective in failing to bring to the court's attention the improper contact between defense witness Laura Larson, a juror and an assistant prosecuting attorney. AFFIRMED IN PART AND REVERSED IN PART, AND THE CASE IS REMANDED FOR AN EVIDENTIARY HEARING. Division One holds: Where Maynard alleged, and the record did not refute the allegation, that Larson was a friend of the victim even though she was a defense witness, communication between her and a juror possibly may have been prejudicial. Maynard is entitled to an evidentiary hearing to determine whether his counsel was ineffective in failing to bring the alleged juror misconduct to the attention of the trial court. Citation: Opinion Author: Robert G. Ulrich, P.J. Opinion Vote: AFFIRMED IN PART AND REVERSED IN PART, AND THE CASE IS REMANDED FOR AN EVIDENTIARY HEARING. Breckenridge and Hardwick, J.J. concur. Opinion: Wendell Maynard appeals the judgment of the motion court denying his Rule 29.15 motion for postconviction relief

without an evidentiary hearing. Mr. Maynard raises six points on appeal. Five of the points are addressed by memorandum opinion, which is provided to the parties and the trial court. Rule 84.16(b). A single point is considered in this opinion. The judgment of the motion court is affirmed in part and reversed in part, and the case is remanded for an evidentiary hearing. Mr. Maynard was convicted of second degree murder and armed criminal action for the murder of his girlfriend in 1993 and was sentenced to consecutive terms of life imprisonment and sixty years imprisonment. The convictions and sentences were affirmed by this court in State v. Maynard, 954 S.W.2d 624 (Mo. App. W.D. 1997), cert. denied, 531 U.S. 1171, 121 S.Ct. 1140, 148 L.Ed.2d 1004 (2001). Mr. Maynard filed his pro se Rule 29.15 motion to vacate, set aside, or correct the judgment and sentences on January 14, 1998. Counsel was appointed, and an amended motion and a request for an evidentiary hearing were filed on April 16, 1998. The amended motion alleged that Mr. Maynard was denied effective assistance of counsel in several respects and that the State violated its duty to provide continuing discovery. The motion court denied Mr. Maynard's motion without an evidentiary hearing. This appeal followed. Standard of Review Appellate review of the denial of a postconviction motion is limited to determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000). Findings of fact and conclusions of law are clearly erroneous only if, after a review of the entire record, an appellate court is left with the definite and firm impression that a mistake has been made. Morrow, 21 S.W.3d at 822. An evidentiary hearing shall not be held if "the motion and files and records of the case conclusively show that the movant is entitled to no relief." Rule 29.15(h). A trial court will not draw factual inferences or implications in a Rule 29.15 motion from bare conclusions or from a prayer for relief. Morrow, 21 S.W.3d at 822. An evidentiary hearing is required only if (1) the motion alleges facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the files and records in the case; and (3) the matters complained of resulted in prejudice. Id. at 822-23. To obtain an evidentiary hearing for claims related to ineffective assistance of counsel, a movant must allege facts, not refuted by the record, showing that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney and that the movant was prejudiced thereby. Id. at 823; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate prejudice, the facts alleged must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Morrow, 21 S.W.3d at 823.

Points on Appeal In his only point addressed in this opinion, Mr. Maynard claims that the trial court clearly erred in denying his Rule 29.15 motion without an evidentiary hearing because trial counsel was ineffective in failing to bring to the trial court's attention the improper contact between defense witness Laura Larson, a juror, and an assistant prosecuting attorney. In his motion for postconviction relief, Mr. Maynard alleged that, during the trial, he and one of his attorneys were returning from a recess when they encountered defense witness Laura Larson in the hallway. Ms. Larson told them that she had been sitting in the hallway talking to a juror when they were spotted by one of the assistant prosecutors. The assistant prosecutor confronted Ms. Larson and the juror and very sternly told them that they should not be speaking to one another. Mr. Maynard's attorney did not bring this matter to the court's attention. Mr. Maynard further alleged that although Ms. Larson was a defense witness, she was a friend of the victim and had an interest in seeing him convicted. "[P]rivate communications possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least, unless their harmlessness is made to appear." Neal v. State, 66 S.W.3d 116, 120 (Mo. App. W.D. 2001)(quoting Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 53, 36 L.Ed. 917, 921 (1892)). Juror misconduct during a felony trial requires a new trial unless the State affirmatively shows that the jurors have not been improperly influenced as a result of the misconduct. State v. Smith, 944 S.W.2d 901, 921 (Mo. banc 1997), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997). Mr. Maynard alleged facts sufficient to warrant an evidentiary hearing, and nothing in the files and records in the case refuted those facts. Although Ms. Larson was a defense witness, Mr. Maynard alleged that she was a friend of the victim and the record did not refute but confirmed this allegation. Thus, communication between her and a juror may possibly have been prejudicial. Although the presumption of prejudice may be overcome, Mr. Maynard is entitled to an evidentiary hearing to determine whether his counsel was ineffective in failing to bring the alleged juror misconduct to the attention of the court. See Neal, 66 S.W.3d at 120 (movant entitled to evidentiary hearing on claim of ineffective assistance of counsel for failing to bring juror misconduct to attention of court where he alleged that he saw a juror conversing with the victim's daughter and her husband). This point is, therefore, granted. Mr. Maynard raises five other points on appeal. The records and briefs have been reviewed, no error of law appears, and each of the five points is denied. A published opinion as to those points would serve no jurisprudential purpose. The parties, however, have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for the decision. Rule 84.16(b). The judgment of the motion court is affirmed in part and reversed in part, and the case is remanded for an

evidentiary hearing. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.