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Hughes v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

June 6, 2017

MARCUS HUGHES, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of the City of St. Louis 1422-CC09534 Honorable Margaret M. Neill

          Gary M. Gaertner, Jr, Judge

         Introduction

         Marcus Hughes (Movant) appeals the denial of his motion for post-conviction relief under Rule 29.15[1] after a partial evidentiary hearing. We affirm.

         Background

         A jury convicted Movant in 2014 of one count of forcible rape and one count of assault in the second degree, for events occurring in 2004. The evidence at trial showed that Movant met A.S. (Victim) in the early morning hours of December 4, 2004. Victim had left the bar she was at with her friends, and she was walking down the street. Victim noticed Movant following her and asked him to stop. She flagged down a cab and got into the backseat, and Movant also got into the cab. The cab driver drove them to where Victim's car was parked, and Movant asked Victim for a ride to his aunt's house "up the street." Victim agreed, but she realized as they were driving that Movant was directing her to a location farther away. She put the car in reverse, but Movant slammed it into park.

         Victim thought that Movant wanted to steal her car, so she got out of the car with the keys. Movant ran toward her, and she threw the keys over a nearby fence because she did not want Movant to steal her car. Movant punched her and pulled her up a hill close to a building. Victim fell on the ground, and Movant was on top of her. He took her scarf, wrapped it around her neck, and strangled her. He pulled down her pants and underwear, pulled his own pants down, and put his penis in her vagina. He then pulled his pants up and put Victim's scarf over her eyes. He pulled her up and rubbed dirt on her vagina. He punched her again in the face, she fell, and then when she got back up, he punched her again. This happened several times, and she believed he would not stop punching her if she got back up, so she decided to hold her breath and pretend she was dead.

         At some point, Victim removed the blindfold, and Movant was gone. Victim ran into the street, flagged down a car, and asked the driver to take her to the hospital Hospital personnel performed two rape kits, and police eventually retrieved Victim's clothing from the scene. The St. Louis Police Department Crime Laboratory found seminal fluid on Victim's clothing, and boots, as well as male DNA from the swabs of Victim's genitalia, but at that time they were unable to match it to any suspect. Several years later, in May of 2011, the Combined National DNA Indexing System (CODIS) identified Movant as a match. Detective Jason Steurer thereafter compiled a photographic lineup and showed it to Victim. Victim identified Movant as the man who raped her.

         The jury returned verdicts of guilty for rape and second-degree assault, and the trial court sentenced Movant as a prior and persistent offender to consecutive terms of 20 years for rape and 10 for second-degree assault, totaling 30 years' imprisonment. Movant timely filed a pro se motion under Rule 29.15 and later a timely amended motion through counsel, arguing both his trial counsel and his appellate counsel were ineffective. The trial court granted an evidentiary hearing on two of Movant's three claims in the motion. After the hearing, the motion court denied Movant's motion. This appeal follows.

         Discussion

         Movant raises two points on appeal. First, he argues the motion court clearly erred in denying his motion after an evidentiary hearing because he established by a preponderance of the evidence that his trial counsel was ineffective for failing to cross-examine Victim regarding her prior inconsistent statements. Second, Movant argues the motion court clearly erred in denying his claim that his appellate counsel was ineffective for failing to argue on appeal that the trial court plainly erred in limiting admission of Victim's medical records to only those portions that corresponded to witness testimony. We discuss each in turn.

         Standard of Review

         Our review of the denial of a Rule 29.15 motion is limited to the determination of whether the motion court's findings and conclusions are clearly erroneous. Rule 29.l5(k); Gehrke v. State, 280 S.W.3d 54, 56 (Mo. banc 2009). Findings and conclusions are clearly erroneous when the appellate court, after reviewing the entire record, is left with the definite and firm impression that a mistake has been made. Id.

         Regarding Movant's claim addressed by the motion court after a hearing, under Rule 29.l5(i), Movant has the burden of proving his claim by a preponderance of the evidence. In order to be entitled to relief on Movant's claims of ineffective assistance of counsel, Movant had to make two showings by a preponderance of the evidence: (1) that counsel's performance fell below the level of skill and diligence of a reasonably competent counsel in a similar situation, and (2) that Movant was prejudiced thereby. Johnson v. State, 388 S.W.3d 159, 163 (Mo. banc 2012) (citing Strickland v. Washington. 466 U.S. 668, 687 (19841): see also Evans v. State. 70 S.W.3d 483, 485 (Mo. App. W.D. 2002) (test for ineffective assistance of appellate counsel is "essentially the same as that employed for trial counsel"). There is a strong presumption that Movant's counsel's ...


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