BRICKER v. STATE (2026)

Introduction

Thomas J. Bricker (“Movant”) appeals the motion court's judgment denying his amended Rule 29.15 ¹ motion for post-conviction relief (“PCR”). In his sole point on appeal, Movant argues the motion court clearly erred in denying his PCR motion because he proved by a preponderance of the evidence his trial counsel (“Counsel”) was ineffective for failing to request the self-defense instruction submitted to the jury (“Instruction 13”) include “forcible felony” language. Movant contends Counsel's actions were not reasonable trial strategy and he was thereby prejudiced.

This Court holds the motion court did not clearly err in denying Movant's PCR motion because Movant failed to establish he was prejudiced by Counsel's performance. Accordingly, the motion court's judgment is affirmed.

Factual and Procedural Background

On January 12, 2019, Movant, his daughter (“S.B.”) and S.B.’s boyfriend (“Victim”) spent the day together watching football, drinking, and eating pizza at S.B. and Victim's home in the City of St. Louis. While they took a smoking break on the front porch, Movant and Victim got into a “screaming match.” S.B. was unconcerned with the argument and went to the back deck to continue smoking. Shortly after she returned inside, S.B. heard Victim say “[Movant], you stabbed me?” She rushed into the living room, where she saw Movant standing with a knife in his hand. After taking the knife from Movant and putting it in the kitchen, S.B. ran to the front porch, where she found Victim collapsed and bleeding from his chest.

S.B. called 911 and spoke with the dispatcher while assisting Victim. Meanwhile, Movant smoked a cigarette on the porch and did not provide any help to Victim. When police arrived, Movant approached them and stated he stabbed Victim. Victim died from a single stab wound to the heart.

The State charged Movant with murder in the first degree and armed criminal action. The matter proceeded to trial in November 2021. The defense theory at trial was Movant stabbed Victim in self-defense. Movant testified Victim approached him while he was in the kitchen getting food, threatened him, and then began twisting his shoulder out of its socket such that it felt like Victim was ripping his arm off. Movant said he felt he had no choice but to use the closest object—a knife on the counter—to stop the attack.

The jury found Movant guilty of all charges. On December 20, 2021, the trial court sentenced Movant to life in prison without the possibility of parole on the murder conviction and thirty years’ imprisonment for armed criminal action, with the sentences to run concurrently. This Court affirmed Movant's convictions on direct appeal. See State v. Bricker, 670 S.W.3d 65 (Mo. App. E.D. 2023).

Movant timely filed his pro se PCR motion on September 11, 2023. The motion court appointed post-conviction counsel, who timely filed an amended PCR motion on February 8, 2024. On December 5, 2024, the motion court held an evidentiary hearing. Movant and Counsel both testified.

Movant acknowledged he and Counsel discussed the self-defense theory presented at trial, but said he had no input on the jury instructions. For his part, Counsel testified he has practiced law for 46 years and handled over 300 trials. Counsel testified he believed Movant's only viable defense was self-defense because Movant admitted he stabbed Victim, and he discussed the self-defense theory with Movant before trial. At trial, Counsel pursued that defense by arguing Movant used deadly force to escape serious physical injury from Victim's attack. Although Counsel conceded he could have requested the language at issue, he testified he believed juries generally do not “nitpick[ ]” the language of an instruction, and instead decide whether “to buy self-defense as a general principle․.” Counsel maintained he did not object to Instruction 13 because it supported his defense theory and was “MAI approved.”²

Following the evidentiary hearing, the motion court denied Movant's PCR motion on February 3, 2025. This appeal follows.

Standard of Review

This Court reviews the denial of a PCR motion “to determine whether the [motion] court's findings and conclusions are clearly erroneous.” Thomas v. State, 710 S.W.3d 129, 132 (Mo. App. E.D. 2025); Rule 29.15(k). A judgment is clearly erroneous when, in light of the entire record, this Court is “left with a definite and firm impression that a mistake has been made.” Washington v. State, 681 S.W.3d 347, 353 (Mo. App. E.D. 2023) (quoting Jones v. State, 514 S.W.3d 72, 78 (Mo. App. E.D. 2017)) (internal quotation marks omitted). This Court “view[s] the record in the light most favorable to the motion court's judgment, accepting as true all evidence and inferences that support the judgment and disregarding evidence and inferences that are contrary to the judgment.” Love v. State, 725 S.W.3d 124, 130 (Mo. App. E.D. 2025) (quoting Oliphant v. State, 525 S.W.3d 572, 577 (Mo. App. S.D. 2017)).

To prevail on a claim of ineffective assistance of counsel, a movant must satisfy Strickland’s two-pronged test. Koenig v. State, 727 S.W.3d 909, 911 (Mo. App. E.D. 2025) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Under Strickland, the movant must demonstrate by a preponderance of the evidence: “(1) trial counsel failed to exercise the level of skill and diligence reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure.” Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019). “If the movant fails to establish either prong, ‘then we need not consider the other and the claim of ineffective assistance must fail.’ ” Thomas, 710 S.W.3d at 132 (quoting Roberts v. State, 535 S.W.3d 789, 797 (Mo. App. E.D. 2017)).

Analysis

In his sole point on appeal, Movant argues Counsel was ineffective for failing to include “forcible felony” language in Instruction 13 to instruct the jury “that a person can lawfully use deadly force to protect himself against the commission of any forcible felony.” Specifically, Movant argues the additional language, set forth in bold type, should have been included in Instruction 13:

But a person is not permitted to use deadly force unless he reasonably believes that the use of deadly force is necessary to protect himself against death or serious physical injury or the commission of a forcible felony.

***

As used in this instruction, the term “forcible felony” means any felony involving the use or threat of force against any individual, including assault in the third degree.

This Court finds Movant's argument unpersuasive.

To establish prejudice, Movant must demonstrate “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Perkins v. State, 722 S.W.3d 705, 708 (Mo. App. E.D. 2025) (quoting Strickland, 466 U.S. at 694). “It is not enough to show that [counsel's] errors had some conceivable effect on the outcome of the proceeding.” Flaherty v. State, 694 S.W.3d 413, 422 (Mo. banc 2024) (quoting Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011)).

Here, Movant argues the “jurors overlooked and dismissed [his] defense of self-defense” because there was little evidence to suggest Victim's actions put Movant's life in danger or presented a risk of serious physical injury, and Instruction 13 instructed jurors the use of deadly force was only permissible in those two situations. Movant further contends if Counsel had requested the “forcible felony” language in Instruction 13, “there is a reasonable probability that the trial court would have granted [C]ounsel's request. There is a reasonable probability that after receiving the modified instruction, jurors would have found ․ [Movant's] use of deadly force to protect himself from [Victim's] forcible felony against him was justified.”

Movant's argument has no analytical or persuasive value, offers no support for his claim of error, fails to cite any relevant authority, and does not point to anything in the record to support his assertions. This Court finds Movant's argument to be purely speculative and conclusory, which does not satisfy his burden of establishing prejudice. See Cummings v. State, 693 S.W.3d 209, 216 (Mo. App. E.D. 2024) (quoting Woods v. State, 458 S.W.3d 352, 360 (Mo. App. W.D. 2014)) (“Mere conclusory speculations of prejudice by Movant are not considered substantive evidence of counsel's ineffectiveness.”). Thus, Movant has failed to satisfy the prejudice prong.

Because Movant has failed to establish prejudice, this Court need not address Counsel's performance. See Thomas, 710 S.W.3d at 132. Movant thus has not proven by a preponderance of the evidence Counsel was ineffective for failing to request “forcible felony” language in Instruction 13. Accordingly, the motion court did not clearly err in denying Movant's amended PCR motion. Point denied.

Conclusion

For the reasons set forth above, the motion court's judgment is affirmed.

FOOTNOTES

1.   All references are to Missouri Supreme Court Rules (2021).

2.   Counsel's reference here is to the Missouri Approved Jury Instructions – Criminal.

Michael S. Wright, Presiding Judge

Philip M. Hess, Judge and Virginia W. Lay, Judge concur.