Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County 14SL-CC04340
Honorable Thea A. Sherry
M. GAERTNER, JR., PRESIDING JUDGE.
Ray Jackson (Movant) appeals from the motion court's
judgment denying his Rule 29.15 motion for post-conviction relief
after an evidentiary hearing. We affirm.
trial, a jury convicted Movant of two counts of statutory
sodomy in the first degree. The trial court sentenced Movant
to concurrent terms of fifteen years in the Missouri
Department of Corrections on one count and ten years on the
other. This Court affirmed the convictions and sentences on
appeal in State v. Jackson, 439 S.W.3d 276 (Mo.
timely filed a pro se Rule 29.15 motion. Through
appointed counsel, Movant filed a timely amended motion,
which asserted, as relevant to the issues raised on appeal,
trial counsel was ineffective for failing to impeach Victim
with a birthday card she had sent Movant after the
molestation had begun that suggested they had a good
relationship, for failing to move for a mistrial after
witnessing a juror sleeping during trial, and for failing to
adequately advise Movant of the risks of proceeding to trial.
The motion court granted an evidentiary hearing at which
Movant and his trial attorneys, Anthony Muhienkamp
(Muhlenkamp) and Matthew Radefeld (Radefeld), testified.
testified to the following. His trial strategy had been to
stress the inconsistencies in Victim's statements and
behaviors to show she was fabricating the allegations against
Movant. Muhlenkamp discussed the strength of the case with
Movant, stating that they had a good defense with
Victim's inconsistencies. Muhlenkamp warned Movant,
however, the best defense in a sex-offense case is a motive
for the victim to fabricate the allegations, of which there
was none here. Muhlenkamp advised Movant that going to trial
is high reward but high risk, with mandatory jail time if
plea negotiations, Muhlenkamp testified Movant was concerned
about having to register as a sex offender if he pleaded
guilty, and once the State made it clear it would not offer a
plea deal to a non-registerable offense, Movant "dug in
his heels" and insisted on going to trial. On the
morning of trial, the State offered a plea deal to a
reduction of the charges to one count of child molestation
with probation, but Movant denied it after about 20-30
minutes of discussion with counsel because of the requirement
that he register as a sex offender. Muhlenkamp stated he
discussed with Movant the potential penalty if he was
convicted, and Movant "seemed to understand" and
wanted, instead, to proceed to trial because of the
Movant's claim of a sleeping juror, Muhlenkamp remembered
Radefeld informing him that Movant had seen a juror sleeping.
Although Muhlenkamp and Radefeld both watched the juror,
Muhlenkamp did not see the juror sleeping. Because he did not
see it, he decided not to make a record of it.
Muhlenkamp agreed Movant had provided him with a birthday
card Victim had given Movant to use for impeachment purposes.
The card had a hand-drawn heart on it and included the
signature: "Love your nieces, [A] & [Victim]."
Muhlenkamp testified that he planned to cross-examine Victim
about the birthday card because it fit with their trial
strategy of pointing out that her behavior towards Movant was
inconsistent with a victim of sexual abuse, but at trial
Muhlenkamp forgot. He cross-examined Victim on other
inconsistencies that were similar in theme but more
persuasive, including that she had requested to move in with
Movant and his wife around the same time as the alleged
molestation. Muhlenkamp testified he did not believe that if
he had cross-examined Victim on the birthday card it would
have made a difference, stating: "if [the jury
wasn't] buying our defense with all the other stuff that
we'd already told them, I don't think a birthday card
would have put them over the top. ... Unfortunately, I just
-- they weren't believing our defense." Moreover,
Muhlenkamp agreed Victim testified on the stand that she did
love Movant, who was her uncle, and thus the birthday card in
which she signed "love, your nieces" would have
been cumulative to evidence already admitted.
testified to the following. He and Muhlenkamp had many
discussions with Movant about trial strategy, whether or not
to go to trial, and the statutory range of punishment. His
practice is to warn clients that every time they go before a
jury there is only about a 50/50 chance of acquittal.
Radefeld did not recall seeing a juror who was sleeping.
Radefeld stated that compared to other much stronger evidence
of Victim's inconsistencies, he did not believe the
birthday card to be strongly discrediting to Victim's
testimony. Moreover, in his experience with sex-offense
cases, the victim will frequently continue to show affection
towards the perpetrator while the abuse is ongoing.
testified he told Radefeld about the sleeping juror and that
together they watched the juror sleep for about ten minutes,
but Radefeld stated he did not want to tell the judge because
he did not want the judge to declare a mistrial. Movant
agreed he did not want to register as a sex offender, but he
testified Muhlenkamp and Radefeld misled him about the
strength of his case, saying it was a good case with a 50/50
chance of acquittal. Movant believed that cross-examining