Court of Appeals of Missouri, Western District, Second Division
Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Justine E. Del Muro, Judge.
Byron Woehlecke, Kansas City, MO, for Respondent.
Chris Koster, Attorney General, Andrew C. Hooper, Assistant Attorney General, Jefferson City, MO, for Appellant.
Victor C. Howard, Presiding Judge, and Alok Ahuja, Chief Judge, concur.
Mark D. Pfeiffer, Judge.
The State appeals from the motion court's grant of Aundra Woods's (" Woods" ) Rule 29.15 motion based on ineffective assistance of counsel. We reverse.
Factual and Procedural History
On February 22, 2009, female victim G.C. went to Woods's house located at
4620 Kensington in Jackson County, Missouri. Woods and G.C. were friends who often smoked crack together. On this evening, G.C. arrived around 6 p.m. and watched television with Woods while Woods drank alcohol. They were both seated on Woods's bed when Woods jumped up and stabbed G.C. in the hip with a knife. Woods then attempted to stab G.C. in the chest, but she was able to grab the knife out of his hand and throw it across the room, cutting her hand in the process.
Woods then wielded another knife and told G.C. that since he had already stabbed her, he might as well finish her off. G.C. then made attempts to calm him down. Woods told G.C. to take her clothes off. He then bandaged G.C.'s stab wound with duct tape and at her request took her to use the restroom. While G.C. was using the restroom, Woods stood by the door, with the knife, and told her she was not going anywhere.
After using the restroom, Woods and G.C. returned to the bedroom where Woods held a knife to G.C.'s throat and told her to perform oral sex on him. Fearing for her life, G.C. complied. With the knife still pointed at G.C.'s neck, Woods then tried to insert his penis into G.C.'s vagina but was unable to maintain an erection.
After several hours, G.C. requested that she be fed, and at Woods's direction, she went to the kitchen to put a biscuit in the microwave. At this point, she escaped through the back door and knocked on several of the neighbors' doors seeking help. The Kansas City, Missouri, police responded to a call and located G.C., only partially clothed (with no clothing from the waist down other than socks), in the middle of the street at approximately 3:30 a.m. on February 23, 2009.
G.C. was taken by ambulance to St. Luke's Hospital where she required seven or eight staples to close her stab wound and several stitches to treat the cut on her finger. She described the assault to police. She then had a Sexual Assault Nurse Examiner (" SANE" ) perform a Sexual Assault Forensic Examination (" SAFE Exam" ). The results did not show any evidence of Woods's DNA or pubic hairs.
Woods was arrested on the afternoon of February 23, 2009, at a local motel. Buccal and penile swabs were collected from him. After a Rapid Stain Identification (" RSID" ) test, the penile swab presumptively indicated the presence of saliva, breast milk, or fecal matter. Later, a DNA analysis was done on the penile swab, which did not show any DNA from G.C. Similar presumptive testing was performed relating to blood and semen.
After a jury trial, Woods was acquitted on the charge of forcible rape but convicted and sentenced on the remaining two counts: forcible sodomy and assault in the second degree.
We affirmed Woods's conviction. State v. Woods, 357 S.W.3d 249 (Mo. App. W.D. 2012). One issue on direct appeal was whether the trial court plainly erred in admitting evidence related to the RSID test for saliva. Woods argued that because the RSID test is only presumptive, the State's argument implying the presence of G.C.'s saliva on the penile swab was improper. But because Woods had affirmatively withdrawn any objection to the admission of the RSID test results, he had waived appellate review. Id. at 255. A second issue on direct appeal was whether the trial court plainly erred in excluding evidence, as a discovery sanction,
from an investigator working on Woods's behalf. Id. at 252. But because Woods had not made an offer of proof, Woods had not adequately preserved the matter. Id. at 254. Our ex gratia review, however, yielded no error in the exclusion of the investigator's testimony. Id.
Woods then filed a Rule 29.15 motion, arguing, inter alia, that his trial counsel was ineffective for failing to object to the admission of the RSID test results at trial and for failing to take steps necessary for the admission of the investigator's testimony. After an evidentiary hearing, the motion court found that Woods's trial counsel was ineffective on two grounds: (1) for consenting to the introduction of the RSID test results and for failing to object to the State's improper characterization of the results of this test in closing argument; and (2) for failing to comply with Rule 25.05 by not turning over notes from an investigator at the public defender's office resulting in the trial court's refusal to allow the investigator to testify, and for failing to make an offer of proof as to the investigator's testimony so as not to preserve the issue on direct appeal.
The State appeals. Further facts are set forth as necessary.
Standard of Review
As the movant, Woods  had the burden of proving his claims for relief by a preponderance of the evidence. Rule 29.15(i). The standard for proving ineffective assistance of counsel is high. Middleton v. State, 80 S.W.3d 799, 808 (Mo. banc 2002). Appellate review of a motion court's denial of a Rule 29.15 motion for post-conviction relief is " limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 29.15(k). " The motion court's decision will be considered clearly erroneous if a full review of the record leaves the appellate court with a full and definite impression that a mistake has been made." Franklin v. State, 24 S.W.3d 686, 689 (Mo. banc 2000).
To establish ineffective assistance of counsel warranting post-conviction relief, the movant must satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the movant must show that counsel's performance was deficient by falling below an objective standard of reasonableness. Id. at 688. If counsel's performance was deficient, the movant must then prove that he was prejudiced by counsel's deficiency. Id. at 687. Prejudice occurs when there is " a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A " reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id.
There is a strong presumption that counsel's conduct was reasonable and effective. Id. at 689. To overcome this presumption, the movant must point to specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of effective assistance. Id. at 690. Strategic choices made after a thorough investigation of the law and the facts are virtually unchallengeable. Id.
By way of background, the State's first point on appeal concerns pre-trial and trial proceedings surrounding the RSID test results, presumptively showing the presence of alpha-amylase, a component of saliva. Woods's trial counsel moved in limine to exclude admission of the presumptive testing for saliva. Trial counsel's motion in limine also sought to exclude any evidence of similar presumptive test results for semen and blood. The trial court preliminarily sustained the motion but noted to the State that " if you show me some case law that says presumptive tests alone is [sic] sufficient evidence to bring that issue forward I'll permit it." Before evidence was presented, the State argued that presumptive tests are admissible pursuant to the guidelines established by the Missouri Supreme Court in State v. Taylor, 298 S.W.3d 482 (Mo. banc 2009). After being presented with this precedent, Woods's trial counsel conceded the admissibility of the presumptive testing as to saliva and semen. The trial court ruled that " since [defense counsel] is not opposed to that, I think the saliva will come in and the rest do not." 
At trial, Patrick Jones (" Jones" ), a criminologist with the Kansas City Police Department's crime laboratory, testified that he performed a " presumptive test" on the penile swab that indicated the possible presence of saliva. Jones stressed that the saliva test was presumptive only:
A. That item was tested for the presence of saliva. I used a presumptive test to determine whether or not saliva could be present.
Q. What was the result of that test?
A. Saliva was indicated based upon the use of presumptive tests. And if I may clarify?
Q. Please do.
A. A presumptive test is not an identification test. It's a test that merely indicates the presence of a substance.
So once again in this case I used a presumptive test for the presence of saliva. It does not without a doubt specify and indicate or identify the presence of saliva. However, so far in the cases of blood the test I've talked about have been confirmatory tests. ...