1 SHAWN C. HANNA

, ) )

Movant

- Appellant /Cross

- Respondent

, ) )

v. ) No s. SD35632, 35646 )

STATE OF MISSOURI, ) Filed: October 29, 2019 ) Respondent

- Respondent /Cross

- Appellant

. )

APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY

Ho norable William E. Hickle

, Special Judge

AFFIRMED

The motion c ourt granted in part Shawn C. Hanna’s ( “ Movant ’s” ) Rule 29.15 1

post

- conviction relief following an evidentiary hearing. The State appeals t hat partial

grant of relief and Movant cross

- appeal s the denial of relief on other grounds. We affirm

the partial grant of relief. Because of that affirmance and the relief granted of a new trial,

we do not address Movant’s other claims of error.

1 All rul e references are to Missouri Court Rules (2 019).2 Movant was convicted of killing his f at her , Ralph Hanna

. 2 In its Findings of Fact,

Conclusions of Law

, and Judgment, the motion c ourt noted that this case was tried to a

jury three times

-- t he first and second trial ended in a hung jury. In the p oint relevant to

this decision, Movant claimed that his trial at torneys were ineffective for not

interviewing, investigating, subpoenaing, and calling Nadia Black to testify. After noting

the standard it used to ascertain whether counsel was effective, the motion c ourt correctly

noted that Missouri courts require Mova nt to show: “ (1) the witness could have been

located thro ugh reasonable investigation; (2 ) the witness would have testified if called;

and (3) the testimony would have provided a viable defense. ” Williams v. State , 8

S.W .3d 217, 219 (Mo.App. E.D. 1999)

.

The motion c ourt found the following with regard to Ms. Black: 3

[S]he lived due south of the Hanna residence at the time of Ralph Hanna’s death, directly across Highway N. The morning of November 16, 2003, she was in her bed readi ng a book . She heard a loud shot fired at 8:30 a.m. She immediately looked at her clock and it said 8:30 . She either

heard one or two shots, testifying, “So I wasn’ t sure if I heard one or two very close together. I think just one because the first one seemed louder,

but I’m not positive.” The sound of the shot came from the north. She testified, “ I just thought well, somebody is off hunting to the north, but I thought they’ re awfully close because it was very loud.” She lived on ten

acres with road frontage to Highway N, directl y across the highway from the Hanna home. Upon he aring the shot, she testified, “ I chirped up an d am thinking that’s across the street, that’ s from the north. And it was extremely loud." Ms. Black was questioned repeatedly in her deposition concerning

the time that she heard the shot, and she answered as follows:

“ I remember looking immediately at my clock, and it said

8:30. It could have been 25 after or 35 after, but 8:30 is what I saw on my clock.”

2 Movant was convicted of murder in the first degree and sentenced to life without the possibility of parole.

3 The motion court’s findings and conclusions are set forth below without further attribution and all internal

citations to the record have been omitted.3 “ It was a little round Westclock beige colored . . . [t]o my left on the night table. . . . But I looked immediately, and it was set on 8:30. As I say, it was a mechanical clock, not electric, so it could have been 25 after, 35 after, b ut it was

8:30.”

[“] Q. Is it possible that it could have been sooner t han

8:30? A. I don’ t think so. My clocks were rarel y ever wrong.”

“I’m not

– can’ t be possible positive that it was exactly

8:30 it could have bee n a couple minutes either way.”

“I’ m certain it was 8:30. But being absolutely honest and knowing a lot of m echan ical scientific things, it wasn’ t a n anatomic [sic] clock. It wasn’ t precise. It could have been a

minute o r two off and still said 8:30.”

Ms. Black testified after the shooting incident involving Mr. Ralph Hanna, two law enforcemen t officers came to interview her . Ms. Black told police she heard one shot and an echo or two or three shots very close together. Ms. Black told police the shot was comi ng from the north . When asked whether she was ever contacted by Movant [’] s trial attorneys, she answered,

No, I never was. The only people who ever contacted me regarding this were the two officers who

came I don’ t know if it was that day, p robably the next day.

And I don’ t remember if they were county or state. But they were the only ones who ever contacte d me.

Ms. Black still lived in the s ame house at the time of Movant’ s 2010 jury trial. Ms. Black would have been willin g and able to testify at

Movant’ s trial had s he been contacted

. At the postconviction relief hearing, Ms. Anthony [(one of

Movant’s tria l attorneys)] testified she recalled Ms. Black told police she heard a shot at 8:30 a.m. Ms. Anthony's recollection was Ms. Black was not confident of her timing. Ms. Anthony agreed that Ms. Black gave a

different time than Mr. Fann testified to at trial. Ms. Anthony acknowledged the timeli ne was very important to Movant’s defense at

trial. Ms. Anthony testified the State had inconsistent timelines from other

witnesses as well in the case . She asserted that she had never talked to Ms. Black, but that her in vestigator had talked to Ms. Black . Ms. Anthony’ s recollection is that Ms. Black was not confident about the time that she heard the shot. Ms. Anthony testified that she asked her investigator to4 ga ther some facts about Ms. Black’ s statement and that she c onsidered those facts that the investigator gathered and r eported to her

.

The motion c ourt noted the con tradiction s in Ms. Anthony’s testimony at the

evidentiary hearing with statements made by Ms . Anthony on the record to the trial c ourt

on December 17, 2010, hours after the jury returned its guilty verdict :

MS. ANTHONY: Obviously last night I did a lot of soul searching and thinking about my performance in the case . . . During the pendency of [Movant’s] case, my office had no investigator. We were the only office in the entire state that had no investigator when this case started. I then got
a part

- time investigator who I was not allowed, under the state rules, to have to work overtime. I failed to request special funds for an investigator

on this case . My part

- time investigator made multiple trips to Poplar Bluff to investigate this case, but the reality is the attorneys in the case ended up doing a lot of the leg work, or trying to do the leg work, in addition to handling their cases because, by the t ime a part

- time investigator drove to Poplar Bluff, his time was gone. Additionally, I cannot find any place in the file where anyone talked to Nadia Black who was a witness that the police officers spoke to,

who said that she heard the shots at 8:30. I th ink the timeline is critical. I didn’t get the case until 2007, but that is no excuse for me. I should know

and be able to tell this Court whether or not Nadia Black is even alive. And if she would have been unavailable, and therefore her hearsay

statement s would have been admissible, and that is a failure on my part.

The motion c ourt found credible the statements made by Ms. Anthony on

December 17, 2010

, and further found the statement s at the evidentiary hearing lack ed

credibility:

Hours after the jur y verdict, at the time that t he trial was fresh on her mind, Ms. Anthony stated clearly as an officer of the court that she simply failed to investigate Ms. Black as a potential witness and did not even

know whether Ms. Black was even alive. Her recollect ion more tha[n] five years later at the time of the April 29, 2016 postconviction relief hearing that she had talked to her investigator about the merits of Ms. Black as a witness appears to be inaccurate, and the Court so finds.

Further, the motion co urt found “[ t ] he time of the shooting was crucial because of

the activities which the State asserted necessarily took place after the shooting. ” Further:5 The 8 a.m. time of shooting was important for two reasons. First, the State argued it was evidence of murder rather than an accident, because of the unexplained delay by Denise Hanna in calling for help. If the shot was fired at 8 a.m., then she delayed forty minutes before calling the police at 8:40 a.m. Second, it allowed time for Movant to return to the Hanna home on foot, get in the white vehicle with his mother, be transported to the Cates driveway, and drive to the Eads’ home in

Williamsville. The drive from the Hanna house to the Eads’ house in Williamsville using the most direct route was 20 to 2 5 minutes. The trip would have required an unknown additional period of time because Michael Cates observed the Mercedes drive west on Highway N after it left his driveway, which is in the opposite direction of both Ellsinore and

Williamsville. No evidence of an alternate route was given at trial, but it would have required more time since the Mercedes drove west when leaving the Cates driveway, while Williamsville is situated to the east. If the shooting did not occur until 8:30 a.m., then the call by

Deni se Hanna within ten minutes at 8:40 a.m. would not be as suspicious. Further, if the shooting did not occur until 8:30 a.m., it would be nearly impossible for Movant to accomplish all of the above activities and drive to the Eads house by 9:00 a.m. or shor tly thereafter. Moreover, if the shooting did not occur until 8:30 a.m., then someone other than Movant was likely the shooter, given that the State asserted that Movant was present at the vehicle exchange in the Cates driveway between 8:15 a.m.

and 8:30 a .m. Both attorneys emphasized the importance of the time of death in their opening statements. Prosecuting attorney Kevin Zoellner told the jury: At eight o’clock that morning, Donald Fann is getting ready to sit down to watch some program on his TV. I gu ess Donald is a creature of habit. Eight o’clock every morning on a Sunday he sits down. He thinks it was a news program but he doesn’t remember for sure what type of program but it was at the top of the hour. And he knows it was eight o’clock because, Don ald is a little bit of a

character he strikes me. He describes in his room that he’s got lots of clocks . . . He’s got three Dale Earnhardt clocks right there in his room. And he’ll tell you right at eight o’clock he heard a loud gunshot . . . And it start led him so bad right at eight o’clock, what did he do? He popped up

and headed out the front door to look to see where that was at . . . It was right at eight o’clock. Okay? About eight

- thirty, a whole half

- hour later, Denise Hanna who apparently is at hom e you’ll learn, apparently at home making a birthday cake for Ralph. That’s what she says, claims she’s doing. But it’s not till eight

- thirty that anybody ever gets a call for help . . . So from eight to eight

-6 thirty Ralph is dead in his yard w hil[e ] Deni s e is baking a cake. Well, that’s not actually what’ s happening because

remember the Cates? Michael and Jesse Cates saw that car up there.

Donna Anthony’ s opening statement includes the following:

Well, on the 17th, some of the deputies decide to do

someth ing called canvassing the neighborhood and they go and they talk to various neighbors to see what they heard and what they saw. And they find neighbors who did see some suspicious things. They talk to one lady who said

around 8:30

- MR. ZOELLNER: Your Hono r, could we approach please? ( Counsel approached the bench . . . )

MR. ZOELLNE R: Your Honor, I’ m going to object to the hearsay statements of any witness that’ s not
been endorsed as a witness or intended to be called. I ’ m not sure who this lady is that the y’ re ref erring to but as you know, they’ ve endorsed just one witness who was not a neighbor at that time and to try and get in hearsay

statements from officers about different times when they’ re offering it for the truth of the matter.

MS. ANTHONY: I’ m no t offering it for the truth

of the matter.

THE COURT: What purpose?

MS. ANTHONY: I’ m offering it for the purpose of the information that they had to go on for their subsequent investigation.

MR. ZOELLNER: Judge, it’ s being offered for the

truth of the matter because when she sta nds up in closing argument, she’ s going to say, “ Neighbors, neighbors sai d 8:30; this timeline is wrong.” You’ ve got to bring these people in, Judge.

The above exchange makes clear that all attorneys were aware of the importance of the time of shooting to the outcome of the case. During the evidence phase of trial, defense counsel tried twice unsuccessfully to get before the jury the alternative time of shooting. First, during cross examination of Missouri State Highway Patrol Se rgeant Scott Stoelting, one of the case investigators, the following exchange occurred:

Q. [by defense counsel Rantz] [sic] Okay. You had mentioned that you can’ t attest that you read all the reports

A. That’ s correct.7 . . . .

Q. At any time did you h ave any information as to any witnesses to the time of death?

A. There were some witnesses that were identified that heard a gunshot at a certain time in the morning. Q . Multiple witnesses?

A. I don’ t remember how many. Q. More than one?

A. There were more than

MR ZOELLNER: I’ m s orry[,] Sergeant Stoelting. I

don’ t mean to interrupt you, but Judge, can we approach about something? [AT BENCH]

MR. ZOELLNER: Judge, I’ m going to object that any of this testimony is being offered as trying to get a time

of de ath that’ s different than what the Stat e has called, is hearsay. I don’ t know if this offic er read these reports or

not . . .

. . . .

MR. ZOELLNER: It’ s being offered Judge

- - to say that there’s multiple information, there’s different information, th ey’ re trying to put in hearsay statements to

be offered for the truth of the matter so that can

- like they said in opening statement, which they denied they were going to do, and now they’re doing it. It’s hearsay. It’ s being offered for the truth of the matter. It’ s actually double and triple hearsay.

. . . .

THE COURT: To ask about different times, I would sustain that objection.

Second, later in the same examination of Sgt. Stoelting the following exchange occurred:

MR. ZOELLNER: When you got out there the information you had from the officers from Denise was that

two shots had been fired?

A. Yes [.]

MR. RANZ: Hearsay within hearsay, Your Honor.

THE COURT: Overruled. I’ve already allowed that

in. Let’ s move on.8 . . . .

[AT BENCH]

MR. RANZ: You r Honor, you just allowed in testimony, information that this officer received from

another officer. You already sustained the state’ s objection

as to

-- if I were to ask if there were different times and what those times were, which is the same question he re. It is another officer receiving information from another

officer.

THE COURT: All right. And your point is? MR. RANZ: I believe that I can ask a question if

there were different times of this witness and this witness

knew what those times were.

. . . .

MR. ZOELLNER: No Judge

-- THE COURT: . . . I’ m sustaining the prior objection.

Finally, the importance of the time of shooting is shown by the emphasis that the State gave the issue during closing argument. Josh Harrel for the State argued:

But in c onsidering whether or not this was an accid ent, the other thing to look at

- possibly more important

- is the timing of the events that you heard. The shot that killed Ralph Hanna was fired at almost exactly 8

o’ clock in the morning of November 16, 2003. R emember Donald Fann. He was sitting in his hous e watching his news program. He’ s got his three

Dale Earnha rdt clocks and he hears a shot. . . . And when he heard that shot, his clocks were straight up 8 o’ clock or very close. The news program that he wa s w atching started at 8 o’ clock was just coming on. The

shot that kill ed Ralph Hanna was fired at 8 o’ clock. Now fast forward. When did the calls for help go out? We know

from the s tatements that Denise Hanna made that she was . . . home when

all of this happ ened. So when did she call for help? . . . That time is 40

minutes after the fatal shot is fired. . . . Why did she wait 40 minutes to call for help? Because it wasn’ t a n accidental shooting. She wasn’ t standing in her kitchen and saw a stray bullet hit he r husband. She would

have called for help right away. Who wouldn’ t have? She needed time.

. . . .

So where was this defendant that morning? We know from

Kristin Eads that he left about 5 o’ clock that morning, right before her grandfather clock chimed. A nd no one has been able to say with certainty9 that they saw him until he gets back to Kristin Eads’ home around 9

o’ clock.

. . . .

So what happens next that morning? What was Denise Hanna doing during the time between when Ralph was killed and when she started calling for help, that 40 minutes? . . . Well, a gain we can go to

Michael Cates . . . And Mr. Cates testified

. . . he thought it was around 8:15, 8:30 that morning; right in the window between when Ralph Hanna

was killed and when Denise Hanna cal led for help. . . . Droppi ng someone off at the defendant’ s car, in the window of time between when Ralph

Hanna was killed and Denise Hanna called for help.

Th e motion c ourt found that Movant’s trial counsel failed to inte rview, investigate

and subpoena Ms. Black as a witness and, in the process, deprived Movant of an

important and viable defense. The jury only heard the witness for the Sta te that the shot

that killed Ralph Hanna was fired at 8:00 a.m. The jury did not hear that the shot was

fired at 8: 30 a.m. because Movant’s counsel did not interview Ms. Black , did not contact

her, and did not call her as a witness, despite knowing of her existence and what her

testimony would be. The motion court found no strategic reason, sound or otherwise, for

fai ling to investigate, interview, and subpoena Ms. Black and that Movant was

prejudiced. The court found that there was a reasonable probability that, but for

counsel’s unprofessional errors, the result would have been different.

We review the motion court ’s ruling s to determine whether the findings and

conclusions of the trial court are clearly erroneou s

. Rotellini v

. State , 77 S.W. 3d 632,

634 (Mo. App. E.D. 20 01)

. U pon review of the entire record

, we must be left with a

definite and firm impression that a mistake has been made. Id. We are not left with such

a definite and firm impression. The State does not argue that trial counsel was effective,

rather

, the State argues that the testimony of Ms. Black would not have changed the result10 of the trial bec ause of the overwhelming evidence of guilt

. In making that argument, the

S tate relies upon the “far more credible testimony of a neighbor” who testified t hat the

shot was fired at 8:00 a.m. The State’s argument misses the mark. The point of the

motion c ourt’s ruling was that the jury only heard one side as to the time of the shot and

that timing was critical. It was for the jury to determine who was “more credible” at the

trial. The State then points to Movant’s actions as “consciousness of guilt” as p art of the

overwhelming evidence necessary to make a finding of no reasonable probability of a

different result. Again, the State misses the mark. If the jury had been presented with

and believed that the shooting occurred at a different time, the infere nce that Movant’s

actions showed a consciousness of guilt would not necessarily have followed. For

instance, the State notes that Movant refused to tell his girlfriend’s mother about the

event. If Movant did not commit the murder, then it would be hard f or him to tell his

girlfriend’s mother anything about the event. Although the State points to several

circumstantial events that could be used to convict Movant, the fact remains that the

motion court found that a critical and contrary piece of evidence w as not given to the jury

at the trial of Movant. We cannot find that the motion c ourt clearly erred in that finding.

The judgment is affirmed.

Nancy Steffen Rahmeyer, J.

– Opinion Author

Gary W. Lynch

, P. J.

– Concurs

William W. Francis, Jr.

, J.

– Concurs