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Martin v. State

Court of Appeals of Missouri, Western District, Second Division

May 9, 2017

ADAM R. MARTIN, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Lafayette County, Missouri The Honorable Dennis A. Rolf, Judge

          Before Cynthia L. Martin, Presiding Judge, Lisa White Hardwick, Judge and Alok Ahuja, Judge

          Cynthia L. Martin, Judge

         Adam R. Martin ("Martin") appeals from a judgment denying his Rule 29.15 motion after an evidentiary hearing. Martin alleges that it was error to deny his motion because he was sentenced in retaliation for the exercise of his right to testify and to deny his guilt, and because he received ineffective assistance of counsel when trial counsel failed to object to a "hammer" instruction, and failed to adequately investigate and call witnesses to present content found on a social media site. Martin also alleges that the motion court erred by denying two motions seeking a change of judge for cause. Finding no error, we affirm.

         Factual and Procedural History

         Martin was convicted following a jury trial of sexual assault. He was determined to be a prior and persistent offender, and was sentenced to fifteen years' imprisonment. On direct appeal, this Court affirmed Martin's conviction and sentence. State v. Martin, 425 S.W.3d 147 (Mo. App. W.D. 2014).

         The circumstances giving rise to Martin's conviction

         On June 28, 2010, seventeen year old T.H. went to Odessa, Missouri to spend time with a girlfriend, A.G. The girls decided to hang out with Martin (who was twenty-four) and Richard Fox. Martin purchased a case of beer. The group went to the Odessa reservoir and drank.

         Later, the group went to Martin's house for a bonfire. T.H. had another beer and became "tipsy." Martin made margaritas for the girls. T.H. drank her margarita, then got up to go to the bathroom. She felt "really, really, wobbly." Martin helped T.H. into the house and upstairs to a bathroom. After using the bathroom, T.H. told Martin she felt dizzy. Martin invited her downstairs to sit on the couch.

         Martin began to kiss T.H. and then took her hand and forced her to touch his penis through his clothing. T.H. tried to pull away, but Martin held on to her. Martin continued to kiss T.H., and then grabbed her and pulled her on top of him. T.H. felt dizzy, exhausted, and "just wanted to sleep." T.H. found herself lying on her back with Martin on top of her. Martin removed T.H.'s jean shorts and pulled her legs up "really high." T.H. felt a "sharp shooting pain in her vagina." T.H. told Martin to stop. Martin replied "Why?" and did not stop. T.H. unsuccessfully tried to push Martin off of her, then blacked out.

         When T.H. awoke, she was crying and could hear A.G. calling her name. A.G. helped T.H. to the bathroom. The girls saw blood on T.H.'s underwear. T.H. noticed her bra was undone in the back.

         A.G. asked Martin what had happened, and he said he did not know. Martin told the girls it was time for them to go home. Martin drove the girls back into town, and dropped them off a block from A.G.'s house. A.G.'s mother and the girls contacted the Odessa police.

         Detective Nathan Tretter ("Det. Tretter") with the Lafayette County Sheriff's Department was contacted by the Odessa police department early on June 29, 2010. After being briefed about T.H.'s reported rape, he left for Centerpoint Hospital where T.H. had gone for an examination.

         Nurse Carolyn Cordle ("Cordle") conducted a forensic examination. During the exam, T.H. was very upset. Cordle noted a laceration injury and redness to T.H.'s cervix. There was also a laceration on her labia along with redness and tenderness. These injuries were consistent with penile penetration from nonconsensual sex. In addition, Cordle noted a white discharge in T.H.'s vaginal opening consistent with the ejaculation of semen. Subsequent DNA testing confirmed that the substance contained Martin's DNA.

         After the examination, Det. Tretter spoke with Cordle, and then proceeded to Martin's residence to collect evidence. Martin had already been arrested. On June 30, 2010, Det. Tretter interviewed Martin. Martin denied providing alcohol to the girls, and denied seeing them consume alcohol. Martin told Det. Tretter that he never touched T.H.'s bare vagina, and denied putting his penis in her vagina, even after being told that testing could result in his DNA being found in T.H.'s vagina.

         At trial, Martin testified in his own defense. Martin testified that he and T.H. had been involved in a consensual encounter, and were fully clothed while "grinding" their pelvic areas together on the couch. Martin claimed he ejaculated with his penis inside his boxers and shorts. Martin claimed T.H. continued to "grind" on him after he ejaculated.

         The jury found Martin guilty of sexual assault.

         Martin's sentencing

         At sentencing, the State requested imposition of the maximum sentence of fifteen years' imprisonment based on the Sentencing Assessment Report, Martin's prior convictions, [1] and the fact that Martin was on parole when he sexually assaulted T.H. Martin's counsel argued for a five-year sentence.

         In sentencing Martin, the trial court noted "a very wide variety of stories" presented at both the trial and at sentencing. The court characterized Martin's testimony suggesting the semen in T.H.'s vagina was the result of "grinding" while Martin was fully clothed as "just ridiculous. It's inconceivable." The trial court stated to Martin: "You lied to me in court. Okay. No doubt in my mind, you lied to me in court." The trial court further noted that the Sentencing Assessment Report contained information that Martin was distributing drugs in jail. The trial court concluded that "any chance of leniency went out the window when you lied to me and when you did what you did after court."

         In imposing sentence, the trial court announced that it was taking into consideration the evidence presented, arguments of counsel, the evidence contained in the Sentencing Assessment Report, and Martin's "testimony and dishonesty to the court." The trial court, having previously found Martin to be a prior and persistent offender, imposed the maximum sentence of fifteen years' imprisonment.

         Martin's post-conviction proceedings

         In July 2014, Martin timely filed a Rule 29.15 motion for post-conviction relief ("Rule 29.15 Motion") with the assistance of counsel. Relevant to this appeal, the Rule 29.15 Motion urged three claims:[2] (i) that the trial court abused its discretion because it unlawfully based its decision to impose the maximum sentence of fifteen years on Martin's exercise of his right to testify and deny guilt; (ii) that Martin received ineffective assistance of counsel when trial counsel failed to object to the giving of a "hammer" instruction after only two hours and 27 minutes of jury deliberation; and (iii) that Martin received ineffective assistance of counsel when trial counsel failed to adequately investigate and call witnesses who would have presented evidence attacking T.H.'s credibility.

         On September 11, 2014, Martin filed a motion for change of judge for cause ("Change of Judge Motion") which claimed that the motion court was a material witness to Martin's claim of retaliatory sentencing. The Change of Judge Motion was overruled, and an evidentiary hearing was scheduled for the Rule 29.15 Motion on August 21, 2015.

         At the conclusion of the evidentiary hearing, Judge Rolf took the Rule 29.15 Motion under advisement, and directed the parties to submit proposed judgments "within thirty (30) days." An August 21, 2015 docket entry indicated that the Rule 29.15 Motion was scheduled for case review at 3:00 p.m. on September 21, 2015.

         On September 21, 2015, a docket entry reflected Judge Rolf's denial of the Rule 29.15 Motion. Martin's counsel received notice of this docket entry by e-mail on September 28, 2015. The e-mail notification indicated that case review was conducted at 12:20 p.m. on September 21, 2015; that the State was present and Martin's counsel was not; and that no findings of fact or conclusions of law had been filed by Martin. The e-mail notification also indicated that the Rule 29.15 Motion was denied at 1:46 p.m. by a docket entry that directed the State to prepare a judgment. Martin did not file his proposed findings of fact and conclusions of law until around 4:00 p.m. on September 21, 2015, thirty-one days after the August 31, 2015 hearing.[3]

         On September 29, 2015, Martin filed a second motion seeking a change of judge ("Second Change of Judge Motion"). Martin alleged that the September 21, 2015 docket entry indicated that Judge Rolf had an ex parte communication with the State regarding the merits of the Rule 29.15 Motion, requiring disqualification. The Second Change of Judge Motion was argued on October 5, 2015 and November 2, 2015, and was denied on November 2, 2015. The motion court entered findings of fact and conclusions of law denying the Rule 29.15 Motion on November 2, 2015 ("Judgment"). After Martin's motion to amend the Judgment was not ruled within ninety days, the Judgment became final for purposes of appeal.

         Martin filed this timely appeal. Additional facts will be discussed where relevant to Martin's points on appeal.

         Standard of Review

         Appellate review of the denial of an application for change of judge is for abuse of discretion. Burgess v. State, 342 S.W.3d 325, 328 (Mo. banc 2011) (citing Smulls v. State, 10 S.W.3d 497, 504 (Mo. banc 2000) ("Smulls II")). A court "'abuses its discretion when its ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.'" Dieser v. St. Anthony's Medical Center, 498 S.W.3d 419, 434 (Mo. banc 2016) (quoting Nelson v. Waxman, 9 S.W.3d 601, 604 (Mo. banc 2000)).

         Appellate review of a motion court's findings on a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Skillicorn v. State, 22 S.W.3d 678, 681 (Mo. banc 2000). Clear error occurs only where a review of the entire record leaves this court with the definite and firm impression that a mistake has been made. State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).

         Analysis

         Martin raises five points on appeal. Points One and Two claim error in the denial of the Change of Judge Motion and the Second Change of Judge Motion. Point Three claims error in the denial of Martin's claim of retaliatory sentencing. Points Four and Five claim error in the denial of Martin's claims of ineffective assistance of counsel based on the failure to object to a "hammer" instruction and the failure to investigate and call witnesses who could have impeached T.H.'s credibility.

         We begin by addressing Point Three on appeal, as resolution of that point influences the resolution of Point One.

         Point Three: The motion court did not clearly err in denying Martin's claim that he was sentenced in retaliation for exercising his right to testify and to deny his guilt

         In his third point on appeal, Martin claims that the motion court clearly erred in denying his claim of retaliatory sentencing because the imposition of a lawful sentence nonetheless violates Amendments V, VI, and XIV of the United States Constitution, and Article I, sections 10 and 18(a) of the Missouri Constitution, if based on a judge's unilateral determination that a defendant "committed perjury" while testifying and denying his guilt.[4]

         Martin does not argue that the maximum sentence was in part imposed in retaliation for his exercise of the right to plead not guilty or to insist on going to trial. Rather, Martin alleges that the maximum sentence was in part imposed in retaliation for Martin's exercise of the right to testify in his own defense[5] and the corresponding Fifth Amendment privilege against self-incrimination.

         No Missouri case has specifically addressed whether it is appropriate to consider the perceived veracity of a defendant's trial testimony in imposing sentence. However, this subject has been addressed by the United States Supreme Court.

         The federal constitution does not relieve a criminal defendant from compliance with "rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers v. Mississippi, 410 U.S. 284, 302 (1973). These rules include the obligation to take and abide by an oath to tell the truth, administered prior to testifying.

The right guaranteed by law to a defendant is narrowly the right to testify truthfully in accordance with the oath-unless we are to say that the oath is mere ritual without meaning. This view of the right involved is confirmed by the unquestioned constitutionality of perjury statutes, which punish those who willfully give false testimony.

United States v. Grayson, 438 U.S. 41, 54 (1978) (superseded by statute on unrelated grounds as stated in Barber v. Thomas, 560 U.S. 474, 482 (2101)). "'[B]efore making [the sentencing] determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited as to the kind of information he may consider, or the source from which it may come.'" Id. at 50 (quoting United States v. Tucker, 404 U.S. 443, 446 (1972)). Thus, if a defendant exercises his right to testify, a trial court is not prohibited from considering the defendant's testimony in weighing remorse or accountability in imposing sentence. "A defendant's truthfulness or mendacity while testifying on his own behalf, almost without exception, has been deemed probative of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing." Id. In fact, Grayson rejected the argument that consideration of a defendant's perceived lack of veracity in imposing sentence would effectively chill exercise of the constitutional right to testify:

Assuming, arguendo, that the sentencing judge's consideration of defendants' untruthfulness in testifying has any chilling effect on a defendant's decision to testify falsely, that effect is entirely permissible. There is no protected right to commit perjury.

Id. at 54. See U.S. v. Dunnigan, 507 U.S. 87, 96-98 (1993) (addressing the continued viability of Grayson following adoption of Federal Sentencing Guidelines) (abrogated on other grounds by United States v. Wells, 519 U.S. 482 (1997)). In light of Grayson, which Martin's Brief fails to acknowledge or address, Martin's claim that his sentence violated the United States Constitution is without merit as a matter of law.

         Martin's Brief also fails to develop any argument that the result should be different under Missouri's Constitution. Missouri constitutional provisions implicated by Martin's point on appeal have been interpreted congruently to their federal counterparts.[6] And though not precisely on point, Missouri precedent analogously permits a sentencing court to consider the defendant's lack of remorse or accountability in imposing sentence. See State v. Collins, 290 S.W.3d 736, 747 (Mo. App. E.D. 2009) (affirming on direct appeal a sentence imposed after a trial court considered the defendant's "lack of remorse and failure to take appropriate responsibility for his actions"); State v. Palmer, 193 S.W.3d 854, 856-57 (Mo. App. S.D. 2006) (affirming on direct appeal a sentence imposed after trial court commented following a sentencing hearing that it was "disturbing to see you still not taking responsibility for" a robbery, and holding that the comment did not mean trial court factored in a failure to incriminate in assessing punishment); State v. Lindsey, 996 S.W.2d 577, 579 (Mo. App. W.D. 1999) (affirming on direct appeal a sentence nine times longer than that recommended by State where trial court admonished the defendant for "accepting absolutely no responsibility or even acknowledging any wrongdoing"). In fact, section 557.036.1 provides:

Upon a finding of guilt, the court shall decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly.

Grayson instructs that a defendant's trial testimony, where perceived to be willfully dishonest, is a relevant factor in assessing the character of the defendant, specifically the defendant's remorse and accountability. 438 U.S. at 54.

         Because the Missouri constitutional provisions implicated by Martin's argument have been interpreted consistently with corollary rights under the federal constitution, [7] we conclude that Grayson is controlling. We thus reject Martin's assertion that consideration of the veracity of a defendant's trial testimony in imposing sentence violates the Missouri Constitution.

         We are not suggesting that in imposing sentence, a trial judge should consider the mere fact that a defendant's trial testimony was unsuccessful in persuading a fact-finder of the defendant's innocence.

Nothing we say today requires a sentencing judge to enhance, in some wooden or reflex fashion, the sentences of all defendants whose testimony is deemed false. Rather, we are reaffirming the authority of a sentencing judge to evaluate carefully a defendant's testimony on the stand, determine-with a consciousness of the frailty of human judgment-whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society.

Id. at 55. (Emphasis added.) Here, the record reflects that the trial court believed Martin's trial testimony was "ridiculous" and "inconceivable." The trial court appropriately relied on that assessment as a factor in electing to impose the maximum sentence.[8]

         The motion court did not clearly err in denying Martin's claim of retaliatory sentencing on the merits. Point Three on appeal is denied.

         Point One: Martin's claim that the motion court abused its discretion in denying the Change of Judge Motion is without merit given our resolution of Point Three

         Martin complains in his first point on appeal that the motion court clearly erred in denying the Change of Judge Motion because Judge Rolf was a material witness to Martin's claim of retaliatory sentencing. At the conclusion of the hearing on Martin's Rule 29.15 Motion, Martin's counsel attempted to call Judge Rolf as a witness. Judge Rolf declined, and permitted counsel to make a record explaining what he would have asked, and why he believed Judge Rolf was a material witness.

I would have, you know, asked you what you do, who you are, whether you oversee criminal trials in Lafayette County, whether you were the judge in this case, whether you recall the trial. I suspect, as you've ...

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