Court of Appeals of Missouri, Eastern District, Second Division
Appeal from the St. Louis County Circuit Court. Honorable Ellen L. Siwak.
FOR APPELLANT: Timothy J. Forneris, Missouri Public Defender Office, St. Louis, Missouri.
FOR RESPONDENT: Jennifer A. Rodewald, Assistant Attorney General, Jefferson City, Missouri.
Philip M. Hess, Judge. Sherri B. Sullivan, P.J. and Mary K. Hoff, J. concur.
Philip M. Hess, Judge.
Daryl Davis (Movant) appeals the denial of his Rule 29.15 motion for post-conviction relief. Movant claims the motion court erred by denying his motion without an evidentiary hearing because Movant alleged facts showing that counsel's performance was ineffective for (1) failing to strike an allegedly sleeping juror and request the trial court to voir dire the jury regarding whether it was distracted by the sleeping juror and (2) failing to object, and to request an instruction that the jury disregard, the State's " direct reference" to Movant's right not to testify during closing argument. According to Movant, but for counsel's deficient performance, there is a reasonable probability that he would not have been convicted. We affirm.
In July 1988, Movant broke into T.W.'s ground-floor apartment and raped her at knifepoint. In November 1988, Movant broke into S.W.'s ground-floor apartment, told her he had a knife, and raped her twice. After both assaults, the victim reported the rape and a rape kit was performed for each victim at St. Anthony's Hospital. The rape kits were sent to the St. Louis County Crime lab, where a forensic scientist tested swabs from the kits for biological evidence. Sperm was identified and the samples were retained for future testing. Approximately twenty years later, DNA testing of the DNA profile of the unknown male found on S.W.'s and T.W's vaginal swabs confirmed that Movant could not be excluded as the source of the male DNA. Subsequently, a jury found Movant guilty of three counts
of forcible rape. In 2011, the trial court entered a judgment consistent with the jury's verdict and sentenced Movant to three consecutive terms of life imprisonment. This Court affirmed Movant's convictions and sentences on direct appeal. State v. Davis, 365 S.W.3d 617 (Mo. App. E.D. 2012).
In July 2012, Movant filed a pro se Rule 29.15 motion for post-conviction relief. Thereafter, appointed counsel timely filed an amended motion alleging two allegations of ineffective assistance of counsel. First, Movant alleged that defense counsel rendered deficient performance by failing to strike Juror 9, who " everyone knew" was sleeping during trial, by failing to request the trial court to voir dire the other jurors, and that Movant was thereby prejudiced because he was deprived of a " distract-free verdict . . . ." Second, Movant alleged that defense counsel rendered deficient performance by failing to object to, and request either a mistrial or limiting instruction for, the State's remark during closing argument that directly referenced Movant's right not to testify, and that Movant was thereby prejudiced because the guilty verdict was likely inferred from his decision not to testify at trial.
The motion court denied Movant's motion without an evidentiary hearing. With respect to both claims, the motion court found that Movant failed to allege facts in support of his claims and failed " to show" how he was prejudiced by counsel's performance or how his claims ...