Court of Appeals of Missouri, Western District, Second Division
ADAM R. MARTIN, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Lafayette County, Missouri The
Honorable Dennis A. Rolf, Judge
Cynthia L. Martin, Presiding Judge, Lisa White Hardwick,
Judge and Alok Ahuja, Judge
Cynthia L. Martin, Judge
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.
and Procedural History
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.
circumstances giving rise to Martin's conviction
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.
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
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
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
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.
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.
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.
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.
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.
jury found Martin guilty of sexual assault.
sentencing, the State requested imposition of the maximum
sentence of fifteen years' imprisonment based on the
Sentencing Assessment Report, Martin's prior convictions,
the fact that Martin was on parole when he sexually assaulted
T.H. Martin's counsel argued for a five-year sentence.
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."
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'
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: (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.
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.
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.
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.
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
filed this timely appeal. Additional facts will be discussed
where relevant to Martin's points on appeal.
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.
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).
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.
begin by addressing Point Three on appeal, as resolution of
that point influences the resolution of Point One.
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
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.
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 and the corresponding Fifth Amendment
privilege against self-incrimination.
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
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.
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. 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
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.
the Missouri constitutional provisions implicated by
Martin's argument have been interpreted consistently with
corollary rights under the federal constitution,
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.
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
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.
motion court did not clearly err in denying Martin's
claim of retaliatory sentencing on the merits. Point Three on
appeal is denied.
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
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 ...