Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of the City of St. Louis. Hon. Robin
APPELLANT: Timothy J. Forneris, St. Louis, MO.
RESPONDENT: Chris Koster, Attorney General, Gregory L.
Barnes, Asst. Attorney General, Jefferson City, MO.
G. DOWD, JR., Presiding Judge
Cornell Manley appeals from the judgment denying his claim
for post-conviction relief under Rule 29.15 after an
evidentiary hearing. We affirm.
was convicted after a jury trial on one count of murder in
the first degree, two counts of assault in the first degree
and three counts of armed criminal action. He was sentenced
to life without parole for the murder, fifteen years for each
assault and life imprisonment for each armed criminal action,
all to run concurrently. The judgment on his convictions was
affirmed on appeal in State v. Manley, 414 S.W.3d
561, (Mo. App. E.D. 2013). Manley filed a pro se motion under
Rule 29.15 alleging that trial counsel was ineffective for
failing to call his alibi witnesses and for not objecting and
seeking a mistrial when the court temporarily closed the
courtroom during his co-defendant's testimony. Counsel
was appointed and filed a timely amended motion. The motion
court held an evidentiary hearing, after which it entered
findings of fact and conclusions of law denying Manley relief
on both claims. This appeal follows.
review is limited to a determination of clear error in the
motion court's findings of fact and conclusions of law.
Taylor v. State, 382 S.W.3d 78, 80 (Mo. banc 2012).
The findings are presumed correct, and we must defer to the
motion court's credibility determinations. Tate v.
State, 461 S.W.3d 15, 24 (Mo. App. E.D. 2015). The
judgment will be deemed clearly erroneous only if the entire
record leaves us with the definite and firm impression
that a mistake has been made. Taylor, 382 S.W.3d at
succeed on a claim for ineffective assistance of counsel, a
movant must demonstrate by a preponderance of the evidence
that (1) counsel failed to exercise the customary skill and
diligence of a reasonably competent attorney under similar
circumstances and (2) counsel's deficient performance
prejudiced him. Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v.
State, 370 S.W.3d 883, 885 (Mo. banc 2012). To satisfy
the first prong of the Strickland test, a movant " must
overcome a strong presumption that counsel's conduct was
reasonable and effective" by pointing to " specific
acts or omissions of counsel that, in light of all the
circumstances, fell outside the wide range of professional
competent assistance." Smith, 370 S.W.3d at 886. To
satisfy the second prong, a movant must show that, absent the
claimed errors, there is a reasonable probability the outcome
would have been different. Id. Since both
ineffective performance and prejudice are required, the
absence of either element is fatal to an ineffective
assistance claim. Sanders v. State, 738 S.W.2d 856,
857 (Mo. banc 1987).
first point, Manley claims that trial counsel was ineffective
for failing to call three alibi witnesses: the mother of
Manley's children, his brother and his brother's
girlfriend. All of them were interviewed by trial counsel and
were available at trial. They were each willing to testify
that Manley was at a party with them at the time of the
crimes. The decision by counsel to not call these witnesses
is presumptively a matter of trial strategy and, as such, is
virtually unchallengeable. Leisure v. State, 828
S.W.2d 872, 875 (Mo. banc 1992). Manley has not overcome that
presumption in any way, especially given trial counsel's
reasonable explanation for his decision at the evidentiary
counsel explained that if the witnesses testified that Manley
was with them at a party, but Manley did not testify as to
the same alibi, then the jury may have drawn a negative
inference. If, on the other hand, Manley did also testify to
the alibi, then he would have been subject to impeachment on
cross-examination because he gave the police a statement when
he was arrested in which he said nothing about an alibi.
Rather than create this catch-22, counsel chose not to
present the alibi defense at all. Moreover, counsel did not
believe this alibi defense--presented by Manley's family
and friends--was a good strategy in this case:
The saying we always tell people in jail is that if
mama/friend alibis worked the jails would be empty. The jury
tends to discount those alibis because of the ...