JEFFERSON CITY, Mo. -- The Missouri Supreme Court will hear an appeal today from a Van Buren man who is seeking to set aside his 2009 conviction and death sentence for gunning down a Missouri State Highway Patrol sergeant.
Oral arguments were to be presented in the case of Lance C. Shockley. The 41-year-old is challenging Judge Kelly Parker's July 2017 denial of his request for post-conviction relief.
In denying Shockley's motion, Parker reportedly found Shockley "failed to meet his burden of proof" on the 17 claims he had asked the court to consider.
Parker made his ruling following an evidentiary hearing in which Shockley claimed ineffective assistance of trial and appellate counsel, as well as violation of his constitutional rights.
An inmate at the Potosi Correctional Center, Shockley is on death row after being convicted in March 2009 by a Carter County jury of the Class A felony of first-degree murder in connection with the March 20, 2005, death of Sgt. Carl Dewayne Graham Jr.
A 12-year veteran of the Highway Patrol, Graham was found shot to death in the driveway of his Van Buren residence. He was still in uniform, having just completed his shift.
Shockley's alleged motive for killing Graham was a Nov. 26, 2004, fatal crash that left Jeffrey R. Bayless dead. Shockley was suspected of being the driver and fleeing the scene. Graham was investigating the death.
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JURY SELECTION
Several of Shockley's arguments in his appellant brief relate to jury selection, specifically whether his attorneys were ineffective for failing to strike for cause of two jurors -- one who had authored a crime-based, semi-autobiographical book and one who indicated he would be more inclined to give the death penalty for the murder of a law enforcement officer.
The juror/author reportedly brought copies of his novel with him and shared them with fellow jurors and court personnel despite Judge David Evans having told jurors they were prohibited from having books or movies about crimes during the trial.
Shockley alleges his trial attorneys should have questioned the juror, who "volunteered his 'published author' status" during the selection process, about his book's content and sought his removal at that time.
After learning of the book's contents during the penalty phase of the trial, Shockley's trial attorneys asked for a mistrial and for the juror to be removed and questioned about the book.
Shockley contends the juror's actions "violated the court's instruction that the jurors not view anything crime related during the trial" and that he was "dishonest in his ability to be fair."
In requesting a mistrial, Shockley's attorney conceded "ineffectiveness in failing to inquire at all about (the juror's) book."
In its response, the state argues there was no evidence to refute the juror's "assurances that he was fair and impartial."
The juror, who had served as foreman during the guilt phase, was excused and replaced by an alternate during the penalty phase.
Another issue raised is whether Evans, who presided over Shockley's trial and sentencing, along with other court personnel and jurors, should have been called to testify regarding the juror's book during a hearing on his motion for new trial to establish juror misconduct.
The defense presented no evidence in support of its motion for a new trial.
"Not calling witnesses wasn't reasonable strategy; it was an abdication of counsels' duty to investigate," Shockley alleges.
Shockley further alleges the dissemination of the juror's book required a new trial "because documents the court had prohibited reached jurors and prevented fair and due consideration of (his) case."
The state contends Shockley failed to show the juror/author committed misconduct by bringing and sharing copies of his book.
" ... he has failed to show that any member of the jury was subjected to any improper influences," the state argues. " ... (The juror's) action of bringing copies of his book with him was not by itself misconduct."
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EVIDENCE CHALLENGE
Shockley also raised claims his trial attorneys were ineffective in the guilt phase of his trial, including that they failed to challenge the state's ballistics/tool mark evidence that indicated a Browning BLR .243 and 12-guage shotgun were used to kill Graham.
Testimony presented at trial indicated bullet fragments found on Shockley's property and taken from Graham's body were fired from the same weapon.
Shockley contends his attorneys should have called their own expert to dispute those claims.
At the evidentiary hearing, one of Shockley's attorneys testified there was no need to call a defense expert because the state's two ballistic experts contradicted one other.
Shockley's attorneys reportedly felt they were better positioned by cross-examining the state's witnesses than if they called their own expert.
In its response, the state argues Shockley's attorneys decided to pursue a "reasonable strategy of exploiting differences in the opinions of the state's experts rather than call a hired expert who would be subjected to cross-examination.
" ... It is not ineffective assistance of counsel to pursue one reasonable trial strategy to the exclusion of another ... ."
Shockley further alleges his trial attorneys were ineffective for failing to call his grandfather to testify that he had not inherited a .243-caliber rifle from his deceased father and should have objected to the state's use of a "demonstrative exhibit," a Browning BLR in .243 Winchester.
The rifle was shown to several witnesses and asked whether it "resembled" a gun Shockley had owned in the past.
The state contends there was "no reasonable probability" the testimony of Shockley's grandfather would have changed the outcome of the trial as there was "substantial evidence" Shockley possessed a .243-caliber rifle.
The state further contends the prosecutor's "clear statement" when the rifle was first used as an "demonstrative evidence" negated any potential to mislead the jury, and as such Shockley's attorneys were not ineffective for failing to object to its use.
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ALIBI DEFENSE
Additional claims cited by Shockley relate to whether his attorneys should have called witnesses to provide him with an alibi and corroborate his defense that someone else killed Graham.
Trial testimony had alleged Shockley borrowed his grandmother's car, parked it near Graham's house and then walked to the trooper's home, where he waited to ambush and kill him.
Shockley contends his attorneys failed to call three witnesses to testify they saw him driving his truck when he was alleged to be in his grandmother's car near Graham's home.
Another potential witness, Shockley alleges would have testified to seeing a white male, other than Shockley, in a red car near Graham's home around the time he was killed.
The state contends Shockley's attorneys made a "reasonable strategic choice" to not call the witnesses as none could have provided a "true alibi as they did not see (Shockley) at the time the murder was committed."
Shockley further accuses his trial attorneys of being ineffective for not impeaching a state witness regarding her inconsistent statements about the red car, with a yellow sticker, she saw parked near Graham's home the day of his death.
Witnesses for the state identified the elder Shockley's car as the one they saw parked on a cutoff road near Graham's home on the day of his murder.
In its response, the state argues Shockley did not meet his burden of showing the impeachment of that witness would have provided him a defense or changed the outcome of the trial.
As to the penalty phase of his trial, Shockley alleges his attorneys were ineffective in that they did not object to certain victim-impact evidence, including a photograph of Graham's casket leaving the church, a video montage and a drawing made by Graham's then 5-year-old son "depicting what his son described as Lance shooting Graham."
"Those exhibits individually and collectively injected passion, prejudice and arbitrariness," rendering the penalty phase "fundamentally unfair," said Shockley, who indicated he was prejudiced and otherwise may have been sentenced to life.
Shockley's attorney, according to the state's response, testified at the evidentiary hearing he tried to limit his objections to the state's victim-impact evidence because that could alienate the jury.
The Supreme Court, the state contends, has recognized that as a valid reason not to object.
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FINAL APPEAL
In his brief, Shockley further alleges his attorneys were ineffective by failing to call more witnesses to offer mitigating evidence regarding his character and how his father's death impacted him.
Shockley says there is a "reasonable probability" that had the jury heard from more witnesses he would have been sentenced to life not death.
Shockley further alleges his appellate attorneys were ineffective in how they improperly raised certain claims on his direct appeal to the Supreme Court challenging the trial court's failure to grant a mistrial.
Shockley's direct appeal was denied.
In his current appeal, Shockley asks for a new trial, a new penalty phase in his case or for a life sentence to be imposed.
The state requests the court affirm the denial of Shockley's motion for post-conviction relief.