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Wadlow v. State

Court of Appeals of Missouri, Southern District

May 9, 2017

DANIEL BOONE WADLOW, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY Honorable Kelly W. Parker

          OPINION

          DON E. BURRELL, J.

         In 2011, a jury found Daniel Boone Wadlow ("Movant") guilty of statutory sodomy in the first degree, and the trial court imposed a life-sentence. See section 566.062.[1] We affirmed Defendant's judgment of conviction and sentence on direct appeal in State v. Wadlow, 370 S.W.3d 315, 323 (Mo. App. S.D. 2012).

         Movant now appeals the subsequent denial, after an evidentiary hearing, of his amended Rule 29.15 post-conviction motion to vacate his conviction and sentence ("the amended motion") -- a decision we review to determine whether the findings of fact and conclusions of law supporting the decision are clearly erroneous. Rule 29.15(k); Moore v. State, 328 S.W.3d 700, 702 (Mo. banc 2010).

         Movant's two points claim, respectively, that the motion court clearly erred because Movant proved his lawyer ("trial counsel") was ineffective in: (1) failing "to move to strike venireperson [number 7 ("Juror 3")]" after Juror 3 disclosed "that she could not be fair due to having a young granddaughter herself"; and (2) failing to object to questions the State asked a trial witness about "violence toward [Movant's] son, and statements [the witness] allegedly made to police about abuse between [Movant] and [his ex-wife.]"

         Finding merit in Movant's first point, we must reverse the motion court's denial of post-conviction relief and vacate Movant's underlying judgment of conviction and sentence.[2]

         Relevant Facts

         During voir dire, the prosecutor informed the venire panel that "[t]he victim in this case -- was at the time, back in February of 2009, a five year old girl[.]" He then engaged in the following exchange:

Q. Let me ask, due to the nature of this case is there anyone who feels that they would not be able to be fair and impartial simply due to the nature of the charges of this case? Please raise your hand
Q. Thank you. Can you raise your hands again if there was anybody that felt they might not be able to be fair or impartial in this case? [Juror 3]?
[Juror 3]: Yes. I have a granddaughter that's four years old and I just truly don't think that I could do it, to be honest, to be fair about it.
Q. Would you be able to listen to the evidence and make a decision just based on that evidence?

[Juror 3]: No.

Q. Thank you. [The prosecutor then questioned other members of ...

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