Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF WRIGHT COUNTY Honorable R. Craig
Clinton Klarr ("Movant") appeals the denial of his
amended Rule 29.15 post-conviction relief motion after an
evidentiary hearing. Movant's underlying convictions were
for statutory rape in the second degree, statutory sodomy in
the second degree, and child molestation in the second
degree. See sections 566.034, 566.064, and
566.068. In two points relied on, Movant contends
the motion court clearly erred in denying Movant's claims
that his trial counsel was ineffective for failing to: (1)
strike a particular juror for cause based upon voir
dire answers suggesting that the juror "would hold
it against [Movant] if he did not testify or present a
defense"; and (2) "suppress State's Exhibit
1" ("Exhibit 1")-a letter that fell from
Movant's pocket while he was under arrest.
no ineffective assistance of counsel in jury selection, and
no prejudice in the admission of Exhibit 1, we affirm.
Principles of Review and Governing Law
successful ineffective-assistance of-counsel claim requires a
movant to "show (1) that his attorney failed to exercise
the customary skill and diligence that a reasonably competent
attorney would perform under similar circumstances, and (2)
that he was thereby prejudiced." Sanders v.
State, 738 S.W.2d 856, 857 (Mo. banc 1987); see also
Strickland v. Washington, 466 U.S. 668, 687 (1984). Our
review of a defense attorney's performance is
"highly deferential[, ]" Strickland 466
U.S. at 689, and "[a reviewing] court must indulge a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance."
Id. To demonstrate prejudice, a movant must show
"a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." State v. Nunley, 923
S.W.2d 911, 922 (Mo. banc 1996) (quoting Strickland,
466 U.S. at 694).
is fundamental that a criminal defendant is entitled to a
jury composed of only those who are free from any bias or
prejudice." State v. McKee, 826 S.W.2d 26, 28
(Mo. App. W.D. 1992). In addition, a defendant in a criminal
case must be afforded a full panel of qualified jurors before
any peremptory challenges are exercised. James v
State, 222 S.W.3d 302, 305-06 (Mo. App. W.D. 2007).
"A possibility of prejudice is not sufficient to
disqualify a juror: 'It must clearly appear from the
evidence that the challenged venireperson was in fact
prejudiced.'" Pearson v. State, 280 S.W.3d
640, 646 (Mo. App. W.D. 2009) (quoting State v.
Walton, 796 S.W.2d 374, 377 (Mo. banc 1990)).
"Whether a prospective juror is qualified is to be
determined from the context of the entire voir dire
examination, not from a single response."
Pearson, 280 S.W.3d at 646. If trial counsel
"fails to articulate a reasonable strategy for having
[an] admittedly biased juror on the panel, counsel has failed
to exercise the customary skill and diligence of a reasonably
competent attorney." Id. at 645. As to
prejudice, when a biased juror serves on the jury, and there
was no reasonable strategy to leave the juror on the jury,
prejudice may be presumed for purposes of ineffective
assistance of counsel. Wadlow v. State, 518 S.W.3d
872, 877 (Mo. App. S.D. 2017).
review the denial of a Rule 29.15 motion to determine
"whether the motion court's findings of fact and
conclusions of law are clearly erroneous." Collis v.
State, 334 S.W.3d 459, 463 (Mo. App. S.D. 2011); see
also Rule 29.15(k). We presume that the findings and
conclusions of the motion court are correct, and "[t]he
movant bears the burden of demonstrating clear error."
Wallar v. State, 403 S.W.3d 698, 705 (Mo. App. W.D.
the two points raised in Movant's timely appeal address
distinct portions of the trial, we will discuss the facts and
procedural history relevant to each point within our analysis
of that particular point, and we take them up in reverse
2-No Motion to Suppress Exhibit 1
borrow without further attribution from the statement
supporting our summary order affirming the judgment in
Movant's direct appeal in summarizing the events relevant
to Movant's claims.
August 2012, Movant moved in with his nephew, nephew's
girlfriend ("Mother"), and Mother's children,
including a child who was 15 and 16 years old
("Child") during the time period relevant to this
case. Mother began noticing interactions between Movant and
Child that "seem[ed] off[, ]" and Mother thought
that it was inappropriate for a
"[sixty]-something-year-old man" to be spending so
much time with Child. Mother responded to her concerns by
trying to restrict any one-on-one contact between Movant and
Movant's criminal trial, Child testified as follows about
her relationship with Movant. Around Christmas of 2012, Child
performed oral sex on Movant, and on another occasion, he
performed oral sex on her. On Christmas day, they
unsuccessfully attempted to have intercourse. On January 29,
2013, they succeeded, and they also engaged in oral sex. They
had oral sex on two more occasions, the last occurring on
Valentine's Day, 2013. Movant spoke with Child about
their having a "biblical marriage[, ]" and Child
understood that to mean that "God allowed [them] to get
married[.]" Child believed that she was "biblically
married to [Movant, ]" and she eventually told an
acquaintance about their marriage.
trial testimony was that when the acquaintance told Mother
that Child "had said they [(Movant and Child)] were
biblically married[, ]" Mother assumed that they had
been sexually active, and she called "the hotline."
Child initially told investigators that she had been joking
when she claimed to be biblically married to Movant.
chief deputy for the Wright County Sheriff's Department,
Bobby Willhite ("Officer Willhite"), testified in a
pre-trial deposition taken by trial counsel. The deposition
was received into evidence during the evidentiary hearing on
Movant's post-conviction motion ("the motion
hearing"). In his deposition, Officer Willhite recalled
that when he first investigated the matter, "there was
[sic] allegations that there had been some thoughts of sexual
activity between [Movant] and [Child], " and several
members of the family, including Child, were interviewed.
After those interviews had been completed, Officer Willhite
placed Movant under arrest. Officer Willhite was planning on
applying for a warrant to search Movant's home, and
Officer Willhite was "holding [Movant] pending a search
warrant[.]" When Officer Willhite learned that he
"didn't have enough to get a search warrant[,
]" he released Movant.
Movant's trial, Officer Willhite testified again about
Movant's arrest. Officer Willhite took Movant into
custody "for holding because [Officer Willhite] was in
the investigation." While Movant "was changing out
[at the sheriff's office], a letter fell out of
[Movant's] pants pocket[.]" Officer Willhite took
the letter, and it was received into evidence at Movant's
trial as Exhibit 1 over trial counsel's objection that no
foundation had been laid that Child was its
testified at trial that she wrote Exhibit 1 to Movant; it was
addressed "'Hey, Darling'"; the second page
was Child "responding back to one of [Movant's]
notes"; and the last page included her question to
Movant, "'What do you mean, if I deny you, you will
deny me? Sorry for the bad spelling.'" Child
explained that Movant "had written [her] a letter
before, and it had said, 'I deny you. Will you deny
me?'" but [Child] didn't understand what it