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Manley v. State

Court of Appeals of Missouri, Eastern District, First Division

February 23, 2016

CORNELL MANLEY, Appellant,
v.
STATE OF MISSOURI, Respondent

          Appeal from the Circuit Court of the City of St. Louis. Hon. Robin R. Vannoy.

         FOR APPELLANT: Timothy J. Forneris, St. Louis, MO.

         FOR RESPONDENT: Chris Koster, Attorney General, Gregory L. Barnes, Asst. Attorney General, Jefferson City, MO.

          OPINION

Page 146

          ROBERT 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.

         Manley 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.

          Our 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

Page 147

that a mistake has been made. Taylor, 382 S.W.3d at 80.

          To 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).

         In his 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 hearing.

         Trial 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 ...

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