Court of Appeals of Missouri, Eastern District, Third Division
RICK J. CUSUMANO, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of St. Louis County 11SL-CC05162
Honorable Mark D. Seigel
M. DOWD, JUDGE
February 2010, Cusumano was charged with three felonies for
the August 5, 1988, sexual assault of a woman
("Victim") in Chesterfield, Missouri. Count I
charged Cusumano with the class A felony of forcible rape
based on allegations that Cusumano, while acting with
another, knowingly and forcibly had sexual intercourse with
Victim without her consent while displaying a deadly weapon
in a threatening manner. Count II also charged Cusumano with
the class A felony of forcible rape, but while the charging
document restated the allegations in Count I, it
alternatively charged that if Cusumano did not display a
deadly weapon in a threatening manner, then he committed the
offense by subjecting Victim to sexual intercourse with more
than one person. Count III charged Cusumano with the class A
felony of forcible sodomy based on allegations that Cusumano,
while acting with another, knowingly and forcibly had deviate
sexual intercourse with Victim while displaying a deadly
weapon in a threatening manner.
September 22, 2010, Cusumano was convicted after a jury trial
in the Circuit Court of St. Louis County of one count of the
unclassified felony of forcible rape and one count of the
unclassified felony of forcible sodomy, both of which were
lesser included offenses to the class A felonies charged in
Counts I and III. Cusumano was sentenced to concurrent terms
of life in prison on each conviction. However, on Count II, no lesser included
offense instruction was given, and the jury was unable to
reach a verdict after more than six hours of deliberation. As
a result, Count II was reset for trial on January 3, 2011.
retrial on Count II, Cusumano was convicted by the jury of
one count of the class A felony of forcible rape. The trial
court sentenced Cusumano to a term of life in prison, which
was to run consecutively to the two concurrent life sentences
Cusumano received on his convictions at the prior trial of
the unclassified felonies of forcible rape and forcible
sodomy arising from the same incident. In State v.
Cusumano, 399 S.W.3d 909 (Mo.App.E.D. 2013), Cusumano
appealed the judgment convicting him of the class A felony of
forcible rape, and this Court affirmed. Cusumano then filed a
Rule 29.15 motion for post-conviction relief alleging the
ineffective assistance of counsel as to that particular
conviction. Cusumano's motion was denied after an
evidentiary hearing, and he now appeals.
argues that the motion court clearly erred when it concluded
that trial counsel did not render ineffective assistance (1)
by failing to investigate Detective Gary Fourtney as a
potential witness and by failing to call him as a witness at
trial; (2) by failing to object to Victim's
ex-husband's testimony about Victim's behavioral
changes that he testified resulted from the sexual assault
she suffered; and (3) by advising Cusumano not to testify at
his second trial. Cusumano also argues that the motion court
clearly erred when it concluded that appellate counsel did
not render ineffective assistance by failing to cite
Green v. United States, 355 U.S. 184 (1957), or
Price v. Georgia, 398 U.S. 323 (1970), in support of
the argument that Cusumano's conviction on Count II of
the class A felony of forcible rape should be set aside on
double jeopardy grounds.
no reversible error and affirm.
review the denial of a Rule 29.15 motion for post-conviction
relief solely to determine whether the motion court's
findings and conclusions are clearly erroneous. Rule
29.15(k); Mallow v. State, 439 S.W.3d 764, 768
(Mo.banc 2014). Findings and conclusions are clearly
erroneous only if, after reviewing the entire record, we are
left with the definite and firm impression that a mistake has
been made. Id. The movant bears the burden of
demonstrating by a preponderance of the evidence that the
motion court clearly erred in its ruling. Roberts v.
State, 276 S.W.3d 833, 835 (Mo.banc 2009). We presume
that the motion court's findings are correct.
Mallow, 439 S.W.3d at 768.
apply the two-part Strickland test to
ineffective-assistance-of-counsel claims for post-conviction
relief under Rule 29.15. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); Johnson v.
State, 406 S.W.3d 892, 898 (Mo.banc 2013). To be
entitled to relief, the movant must show by a preponderance
of the evidence that (1) his counsel failed to exercise the
level of skill and diligence that reasonably competent
counsel would have exercised in a similar situation, and (2)
that he was prejudiced by that failure. Id. at
898-99. We presume that counsel's decisions were part of
a reasonable trial strategy, and to overcome this presumption
the movant must identify specific acts or omissions of
counsel that, in light of all the circumstances, fell outside
the wide range of professionally competent assistance and
rendered counsel's trial strategy unreasonable.
Id. at 899. To show prejudice, the movant must
demonstrate that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different. Id.
standard for reviewing a claim of ineffective assistance of
appellate counsel is essentially the same as that used in a
claim regarding trial counsel. Morse v. State, 462
S.W.3d 907 (Mo.App.E.D. 2015) (citing Mallett v.
State, 769 S.W.2d 77, 83 (Mo.banc 1989)). To overcome
the presumption that appellate counsel provided reasonable
and effective assistance, the movant must show that counsel
failed to assert a claim of error that would have required
reversal had it been asserted and that was so obvious from
the record that competent and effective counsel would have
recognized and asserted it. Id. The error not raised
by appellate counsel must have been so substantial as to
amount to a manifest injustice or a miscarriage of justice.
Id. To show prejudice, the movant must demonstrate
that the claimed error was sufficiently serious that, if it
had been raised, there is a reasonable probability the
outcome of the appeal would have been different. Id.
counsel will not be found ineffective for failing to raise a
non-meritorious claim. Glover v. State, 225 S.W.3d
425, 429 (Mo.banc 2007); see also Morse, 462 S.W.3d
at 913. Further, appellate counsel has no duty to raise every
possible issue asserted in the motion for new trial on
appeal, and no duty to present non-frivolous issues where
appellate counsel strategically decides to winnow out
arguments in favor of other arguments. Baumruk v.
State, 364 S.W.3d 518, 539 (Mo.banc 2012).
I: Failure to Investigate Detective Gary Fourtney as a
Potential Witness and to Call
as a ...