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Martin v. State

Court of Appeals of Missouri, Southern District, First Division

August 16, 2017

ROBERT C. MARTIN, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF BOLLINGER COUNTY The Honorable Benjamin F. Lewis.

          OPINION

          GARY W. LYNCH, J.

         Robert C. Martin ("Movant") appeals the denial of his Rule 29.15[1] post-conviction motion following an evidentiary hearing. On appeal, Movant contends that his trial counsel was ineffective "for failing to object to various statements made by the prosecutor during voir dire" and that "[Movant] proved beyond a preponderance of the evidence . . . that the prosecutor penalized [Movant] for exercising his right to trial by filing an amended felony information alleging that [Movant] was a prior and persistent felony offender[.]" Finding no merit in Movant's first claim and that his second claim is not cognizable in this post-conviction proceeding, we affirm the motion court's judgment.

         Standard of Review

         This court's review of the denial of a Rule 29.15 motion for post-conviction relief is limited to determining whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005). Such findings and conclusions are considered clearly erroneous only if a full review of the record leaves us with "a definite and firm impression that a mistake has been made." Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009) (internal quotations omitted). It is incumbent upon the movant in a post-conviction motion to prove his or her claims for relief by a preponderance of the evidence, Rule 29.15(i), and this court presumes that the motion court's findings and conclusions are correct. McLaughlin v. State, 378 S.W.3d 328, 336-37 (Mo. banc 2012). We will defer to the motion court's determinations of credibility, and the motion court is free to believe all, part, or none of the witnesses' testimony. Zink, 278 S.W.3d at 192. Finally, we will affirm the motion court's judgment so long as the motion court arrived at the correct result, regardless of how it got there. Deckard v. State, 110 S.W.3d 891, 894 (Mo.App. 2003).

         Procedural Background

         In the underlying criminal case, a jury found Movant guilty of burglary in the second degree and two counts of stealing, and the trial court sentenced him to ten concurrent years of imprisonment for each count. See sections 569.170, RSMo 2000, and 570.030, RSMo Cum.Supp. 2011. This court affirmed his convictions on direct appeal. Movant filed a Rule 29.15 motion for post-conviction relief. [2] The motion court held an evidentiary hearing and denied Movant's claim of ineffective assistance of trial counsel for failing to object to certain prosecutor statements made during voir dire because "it challenges reasonable trial strategy" and "[t]here is no probability that but for counsel's performance the jurors would have found Movant not guilty." In denying Movant's claim of prosecutorial vindictiveness in filing an amended information after Movant refused the State's plea offer, the motion court found that Movant had not met his burden of proving his claim by a preponderance of the evidence and there was no credible evidence that Movant was prejudiced. Movant timely appeals.

         Discussion

         Point One-No Prejudice Shown

         Movant's first point relied on contends:

The motion court clearly erred and violated [Movant's] right to due process of law and to effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, §§ 10, 14, and 18(a), 19 and 22(a) of the Missouri Constitution in denying [Movant's] Rule 29.15 motion for post-conviction relief claim after evidentiary hearing because [Movant] proved by a preponderance of the evidence that he alleged that he was denied his rights to due process of law and effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 10, 14, 18(a), 19, and 22(a) of the Missouri Constitution in that his trial attorney was ineffective for failing to object to various statements made by the prosecutor during voir dire where the prosecutor was arguing the facts of the case. A reasonably competent trial attorney would not have failed to object to such conduct, and [Movant] proved by a preponderance of the evidence that there is a reasonable probability that, but for trial counsel's ineffectiveness, the outcome of his trial would have been different.

         In order to prevail on a post-conviction motion alleging ineffective assistance of counsel, a movant must overcome a strong presumption of competence and demonstrate, by a preponderance of the evidence, that (1) counsel did not exercise the customary skill and diligence that a reasonably competent attorney would have exercised under the same or similar circumstances, and (2) counsel's failure to exercise such skill and diligence prejudiced the movant in some way. Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S.Ct. 2053, 80 L.Ed.2d 674 (1984); Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). To satisfy the performance prong, a movant "must overcome the presumptions that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment." State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). In order to demonstrate the requisite prejudice, a movant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Strickland defines "a reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id. In reviewing such claims, we are not required to examine both prongs; if a movant fails to satisfy the performance prong, we need not consider the prejudice prong, and vice versa. Strickland, 466 U.S. at 697; State v. Sanders, 738 S.W.2d 856, 857 (Mo. banc 1987).

         Movant's brief sets out four statements from the prosecutor's voir dire that he contends were improper:

• ". . . I'm standing up for a crime victim today, a woman who has lost some of her property and she's asking for some justice to be done."
• "What you're going to hear from though is the testimony of the police officer who investigated this matter and questioned the people involved. You're going to hear from our home owner who lost her property and that's not going to take very long to establish what happened to her house and the things that were taken, but then you're also going to hear from two gentlemen who were - - they will testify that they were involved with Mr. Martin and that they helped him carry out this crime. And you're going to get to see them, listen to them and decide for yourselves if they're telling the truth because if you find that ...

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