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Tate v. State

Court of Appeals of Missouri, Eastern District, Third Division

April 14, 2015

DONOVAN E. TATE, Appellant,
v.
STATE OF MISSOURI, Respondent

Page 16

Appeal from the Circuit Court of the City of St. Louis. Honorable Rex M. Burlison.

FOR APPELLANT: Matthew Huckeby, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, Missouri.

FOR RESPONDENT: Chris Koster, Attorney General, Evan J. Buchheim, Assistant Attorney General, Jefferson City, Missouri.

Kurt S. Odenwald, Presiding Judge. Robert G. Dowd, Jr., J., Concurs. Gary M. Gaertner, Jr., J., Concurs.

OPINION

Kurt S. Odenwald, Presiding Judge.

Page 17

Introduction

Appellant Donovan Tate (" Tate" ) appeals from the judgment of the motion court, following an evidentiary hearing, denying his Rule 29.15[1] motion seeking to set aside his convictions for first-degree

Page 18

robbery and armed criminal action. A jury found Tate guilty of one count of first-degree robbery and one count of armed criminal action stemming from the robbery of a Boost Mobile store. Tate's convictions were affirmed by this Court on direct appeal in State v. Tate, 390 S.W.3d 265 (Mo. App. E.D. 2013). Tate subsequently filed a Rule 29.15 motion for post-conviction relief alleging that both trial counsel and appellate counsel provided ineffective assistance of counsel. Following an evidentiary hearing, the motion court denied Tate's Rule 29.15 motion. On appeal, Tate claims that the motion court clearly erred in denying his Rule 29.15 motion because Tate proved by a preponderance of the evidence that (1) appellate counsel was ineffective for failing to assert, on direct appeal, that the trial court erred in overruling Tate's Batson[2] challenge to the prosecution's peremptory strike of Juror 558, and (2) trial counsel was ineffective for failing to share with Tate certain incriminating video surveillance evidence and audio recording evidence prior to trial. Because the motion court did not clearly err in concluding that appellate counsel's decision not to pursue a Batson claim on appeal was a reasonable strategic decision, we affirm the judgment of the motion court denying Tate's Rule 29.15 motion alleging ineffective assistance of appellate counsel. Because the motion court did not clearly err in accepting trial counsel's testimony that Tate was adequately informed of the video and audio evidence, we affirm the judgment of the motion court denying Tate's Rule 29.15 motion alleging ineffective assistance of trial counsel.[3]

Factual and Procedural History

Tate was charged as a persistent offender with one count of first-degree robbery and one count of armed criminal action stemming from the robbery of a Boost Mobile store. A jury trial was held before the trial court. At trial, the State introduced, among other evidence, surveillance video showing a suspect identified as Tate robbing the Boost Mobile store and entering a neighboring store prior to the robbery wearing the same clothes. The State also introduced an audio recording of an incriminating phone conversation between Tate and his girlfriend which took place while Tate was in jail awaiting trial.

During voir dire of the jury panel, the prosecutor had the following interaction with Juror 558, a black female:

PROSECUTOR: Anyone else in the back row? I did see a lady in the middle row nodding. [Juror 558], I saw you nodding your head, maybe you're just keeping up.
JUROR 558: Just keeping up, I don't have a problem.
PROSECUTOR: If that question's not resolved, you could still deliberate in this case?
JUROR 558: Yes.
PROSECUTOR: Thank you, ma'am, thank you for letting ...

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