Academic journal article Missouri Law Review

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

Academic journal article Missouri Law Review

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

Article excerpt


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.


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. …

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