Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Tony W.
Williams Associate Circuit Judge
found Vernon George Christian ("Movant") guilty of
the class C felony of forgery. See section
570.090. The trial court imposed a six-year
sentence, and this court affirmed Movant's conviction and
sentence on direct appeal in State v. Christian, 364
S.W.3d 797 (Mo. App. S.D. 2012). Movant now appeals the
denial of his amended Rule 29.15 motion after an evidentiary
points, Movant claims the motion court clearly erred in
denying relief because his trial counsel was ineffective in:
(1) failing to object when the prosecutor introduced evidence
that Movant had invoked his Fifth Amendment right to remain
silent in a deposition he gave in a related civil suit; and
(2) failing to object to other (unspecified)
"evidence" of that civil suit. Finding merit in
Movant's first point, we reverse the denial of
post-conviction relief and remand the matter for a new
of Review and Governing Law
presume the findings of the motion court correct,
Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc
2005), and we will reverse only if they are clearly
erroneous. Rule 29.15(k); Johnson v. State, 333
S.W.3d 459, 463 (Mo. banc 2011). "Findings and
conclusions are clearly erroneous if, after a review of the
entire record, the court is left with the definite and firm
impression that a mistake has been made." Price v.
State, 422 S.W.3d 292, 294 (Mo. banc 2014).
To be entitled to post-conviction relief for ineffective
assistance of counsel, a movant must show by a preponderance
of the evidence that his or her trial counsel failed to meet
the Strickland test in order to prove his or her
claims of ineffective assistance of counsel. Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). Under Strickland, a movant must
demonstrate that: (1) his or her counsel failed to exercise
the level of skill and diligence that a reasonably competent
counsel would in a similar situation, and (2) he or she was
prejudiced by that failure. Id. at 687, 104 S.Ct.
. . . .
To establish the prejudice requirement of
Strickland, a movant must prove prejudice. Prejudice
occurs when "there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different." Deck v.
State, 68 S.W.3d 418, 429 (Mo. banc 2002) (citing
Strickland, 466 U.S. at 694, 104 S.Ct.
Johnson v. State, 388 S.W.3d 159, 163 (Mo. banc
justify relief on a post-conviction motion, the failure to
object 'must have been of such character as to deprive
the defendant substantially of his right to a fair
trial.'" Ervin v. State, 80 S.W.3d
817, 822 (Mo. banc 2002) (quoting State v. Bearden,
926 S.W.2d 483, 486 (Mo. App. S.D. 1996)). "The movant
must prove that a failure to object was not strategic and
that the failure to object was prejudicial. Counsel will not
be deemed ineffective for failing to make nonmeritorious
objections." State v. Clay, 975 S.W.2d 121, 135
(Mo. banc 1998) (citation omitted).
and Procedural Background
on the applicable standard of review, our summary of the
relevant facts supporting Movant's conviction on direct
appeal included only evidence favorable to the jury's
verdict. To place Movant's ineffective assistance claim
in context, we here include some additional evidence and
King ("King") provided the following testimony at
the November 2010 trial. King had purchased the property at
4688 Gunnison Road ("the property") through a
realtor, King's deed to the property was filed in the
Taney County Recorder's Office, and King began making
mortgage payments and paying property taxes on the property
(which consisted of land and a cabin).
November 2007, King realized that he had not received a
property tax bill. He called the Taney County Collector's
Office and was told that he had not received one because he
no longer owned the property. King learned that a deed
purportedly signed by him on November 22, 2006 had
transferred the property to Movant and Mike Olson
("Olson"). The signature on the deed purporting to
be King's was notarized by Edmund E. Barker
testified that he did not sign the deed and had never seen it
before it was shown to him at the collector's office.
King said that he had never met Barker and had never had
Barker notarize his signature. King also testified that he
had never met either Movant or Olson before learning about
the deed, and he denied ever having an agreement with them to
sell or rent the property. King said that no one had paid him
money for the property, no one had relieved him of his
mortgage obligation, and no one else had paid any taxes on
the property since King had acquired it in 2004.
handwriting expert, Don Lock ("Lock"), had been
provided with the following materials for his examination: a
statement and signature penned by King; Movant's
signature on a statement he wrote for the sheriff's
office; and the signature purported to be King's on the
deed. Lock testified that the signature on the deed
purporting to be King's was "nongenuine"; i.e.,
it had not been made by King. Lock also compared Movant's
known signature to the signature on the deed purporting to be
King's, and he testified that "[e]verything points
toward [Movant] as the writer of the nongenuine signature
with no unexplainable differences . . . . and nothing points
away from him as a possible writer."
the State's case-in-chief, the prosecutor asked King,
"Have you got the title back to [the property]?"
When King replied that he had, the prosecutor asked,
"How did you go about doing that?" King answered,
"Through a civil bench trial. I had to hire an attorney
. . . and finally a declaration was made . . . in September .
. . 2008, transferring the documents back into my name."
during the State's case-in-chief, the prosecutor read to
the jury a portion of a deposition Movant had given in the
civil suit about Movant's ownership of the property, and
the "the pending criminal case" was referenced in
the portion read to the jury. The portion the prosecutor read
to the jury also included the following references to
Movant's exercise of his right to refuse to answer
questions based on the Fifth Amendment:
Q. Okay. How much did you pay for [the property]? Are you
going to assert your Fifth Amendment right, sir?
. . . .
Q. Okay. And how much -- did you tell me how much you paid
A. No, I didn't.
Q. Do you remember or know?
A. I wasn't going to tell you.
Q. Okay. How much did you pay for it?
A. I'm going to stand on the Fifth Amendment. That's
. . . .
Q. Okay. Now, then, when -- what were the circumstances that
Mr. King would bring you this deed?
A. I'll stand on that.
Q. On your Fifth Amendment rights?
Q. So you're refusing to answer any questions about the
circumstances of this deed being brought to you based on your
Fifth Amendment rights?
A. Yes, sir.
Q. Okay. If I were to ask you any questions concerning the
petition that was filed, would you also assert your Fifth