Court of Appeals of Missouri, Western District, Second Division
Not Final until expiration of the rehearing period. See MO R RCP Rule 84.16 regarding unpublished opinions.
Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Kathleen A. Forsyth, Judge.
Before Division II: Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and James Edward Welsh, Judges.
Mr. Woodrow Dillard appeals from the Judgment of the Circuit Court of Jackson County, Missouri, denying his Rule 29.15 motion for post-conviction relief, after an evidentiary hearing. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).
Memorandum of Reasons for Order Affirming Judgment Pursuant to Rule 84.16(b)
This memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY O HER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
Mr. Woodrow Dillard (" Dillard" ) appeals from the Judgment of the Circuit Court of Jackson County, Missouri (" motion court" ), denying his Rule 29.15 motion for post-conviction relief, after an evidentiary hearing. Dillard contends that the motion court erred in determining that trial counsel was not ineffective in conceding to the jury that Dillard had sexual relations with V.P. (" Victim" ) on the date of the charged offenses. We affirm.
Factual and Procedural Background
Victim and Dillard were in a romantic relationship and lived together until she broke up with him in June 2008. When she broke up with Dillard, she started dating Donta Shockley. On January 21, 2009, Victim went to Dillard's house, not expecting him to be there. As she was leaving, he appeared and threatened her with a metal object. He ordered her into the master bedroom, hit her, and forced her to take her clothes off. When her cell phone rang, Dillard saw that it was Shockley. Before Victim answered the phone, Dillard ordered her to perform oral sex on him; then Dillard answered the phone and said, " How does it feel to know that your woman is sucking on another man's penis." After Dillard hung up, he hit Victim on the head with his closed fists and cut her head, hair, and hand with a box cutter. Dillard then taped her hands and legs. When she broke the tape, he hog-tied her with an extension cord. Dillard then climbed on top of Victim and had vaginal and anal sex with her.
Katherine Trotter, a friend of Dillard, went to Dillard's house on the morning of January 21, 2009, and saw Victim lying on the floor covered with a blanket. Victim's feet were tied up. Trotter asked Dillard to untie Victim's feet, which he did. Trotter observed that Victim's hands were tied behind her back, she was naked, and she had blood on her head and hands. Victim asked Trotter to take her to the hospital. Trotter helped Victim shower and get dressed, and they left the house. Victim asked to use Trotter's cell phone and called Shockley. Victim asked Trotter to drop her off at a liquor store and told Trotter that someone else would take her to the hospital. Shockley picked up Victim, took her to the police station where she made a police report about the sexual assault, and then took her to the hospital.
At the hospital, Sexual Assault Nurse Examiner Radonna Headdrick examined Victim. Nurse Headdrick observed no anal or vaginal injuries but did see blood around Victim's anus. For the sexual assault exam, the nurse collected vaginal, cervical, and anal swabs and smears from Victim.
The Kansas City Crime Lab DNA Analyst Jessica Hanna performed DNA testing on the swabs from the rape examination kit. On the anal swab, Hanna found a mixture of DNA that she could separate out, " the major was [Victim], and the minor could be matched to Dillard." Statistically, one in 11,000 unrelated individuals could be a possible contributor to the minor DNA in the anal swab. The cervical swab also had a DNA mixture of two people, with the major matching Victim and the minor from " an unknown male that did not match Dillard." Hanna also tested a penile swab from Dillard and found a DNA mixture of at least four individuals. Statistically, one in ten unrelated individuals, including Victim, could be included as possible contributors.
At trial, trial counsel argued in closing:
What Mr. Dillard did to [Victim], when he domestically assaulted her with his hands and that knife, that box cutter, when he's pulling her hair, he's cutting her hair out, that was wrong and he is ready to accept responsibility for that, he needs to accept responsibility for cutting her hair, cutting her head as a result of cutting her hair, and cutting her hand as she's trying to defend herself from his attack. That's what happened, that's what Mr. Dillard is guilty of. And although we may not like Mr. Dillard, we understand that, I understand that. Although Mr. Dillard may be the only person in this room that is disliked, let's get one thing clear; Mr. Dillard is not a rapist, Mr. Dillard is not a sodomizer.
How do we reach that conclusion? Because they had consensual sex. That's what they had.
Now, think back to yesterday. [Victim] was on the stand, . . . the State asked: [Victim], when was the last time you had sex consensually with Mr. Dillard?" And she said: " It ...