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Payne v. State

Court of Appeals of Missouri, Western District, Second Division

November 22, 2016

PHILLIP G. PAYNE, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Clay County, Missouri The Honorable Shane T. Alexander, Judge

          Before Lisa White Hardwick, Presiding Judge, and Karen King Mitchell and Anthony Rex Gabbert, Judges

          Karen King Mitchell, Judge.

         Phillip Payne appeals, following an evidentiary hearing, the denial of his Rule 29.15 motion for post-conviction relief.[1] Payne claims that trial counsel provided ineffective assistance by: (1) failing to more fully cross-examine the victim; and (2) advising Payne not to testify at trial.

         The motion court rejected Payne's claims. Finding no error, we affirm.

         Background

         Following a jury trial, Payne was convicted of one count of statutory sodomy, [2] for which he was sentenced to twenty-five years' imprisonment. State v. Payne, 414 S.W.3d 52, 53 (Mo. App. W.D. 2013), abrogated by Hoeber v. State, 488 S.W.3d 648 (Mo. banc 2016). The facts underlying Payne's conviction are laid out in the opinion we issued in Payne's direct appeal, id., and will be discussed only to the extent necessary to resolve his post-conviction claims.

         At trial, the State offered testimony from Victim, Victim's parents, and Victim's school counselor. During cross-examination of Victim, trial counsel pointed out numerous inconsistencies in Victim's description of the events leading to Payne's conviction. Trial counsel's questioning led to Victim's admissions that (1) he did not really remember a lot about the events, but was just telling it the way he assumed it had happened; (2) he had a lot of problems remembering things; (3) some of his memories were not real; (4) he fabricated some details because they "sounded good"; (5) he lied to his parents about Payne; and (6) he remembered only three occurrences despite telling others that there were five. Trial counsel pointed out the various discrepancies during closing argument and advised the jury, "[Victim] told you he lied numerous times. If you can't believe some things, you can't believe any of it." During the hearing on Payne's motion for new trial, the court indicated:

[W]ith regard to the sufficiency of the evidence, the Court agrees with defendant that the list of inconsistencies and inaccuracies in the victim's testimony as compared to, testimony before the jury as compared to previous statements, some made under oath, some not, is extensive, and probably the most extensive this Court's ever encountered on the bench or prior to being on the bench.

         Before the close of evidence, upon learning that Payne did not intend to testify, the trial court questioned Payne about his decision:

THE COURT: All right. Mr. Payne, have you heard what your attorney's told me?
THE DEFENDANT: Yes, I have.
THE COURT: It's my understanding that you have decided not to testify in this trial, is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Have you had enough time to discuss that with your attorney?
THE DEFENDANT: I have.
THE COURT: Have you had enough time to think about it on your own?
THE DEFENDANT: Yes, sir.
. . .
THE COURT: All right. Having had enough time to talk to your own attorney about it and to think about it on your own, it's your decision to not testify in the case?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that you have the right to testify?
THE DEFENDANT: Yes, ...

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