Court of Appeals of Missouri, Eastern District, Second Division
KENNETH L. ROBERTS, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of St. Louis County Honorable John D.
L Hess, Judge
R. Roberts appeals the denial of his Rule 29.15 motion for
post-conviction relief. Roberts raises four points on appeal.
In point I, Roberts alleges the motion court clearly erred in
denying his amended motion because he was deprived of due
process and a public trial when the bailiff closed the
courtroom and removed members of his family to make room for
the venire panel before voir dire. In points II, III, and IV,
Roberts contends his trial counsel was ineffective for
failing to: 1) sufficiently advise him about testifying at
trial; 2) cross-examine the victims about the size of his
penis; and 3) present mitigating evidence and argue for a
more favorable sentence during the penalty phase of his
trial. Finding no clear error, we affirm.
and Procedural Background
15, 2009, Roberts invited his twenty-year-old friend, W.A.,
over to his house. Roberts touched and kissed W.A. and she
asked him to stop. Roberts stopped but approximately ten
minutes later he hit W.A. in the face with a liquor bottle,
pushed her onto the floor, and told her he would have sex
with her. W.A. told Roberts no and that she was menstruating.
Roberts ordered W.A. to perform oral sex on him and forced
his penis in her mouth. Eventually W.A. convinced Roberts to
allow her to leave.
August 13, 2009, Roberts invited nineteen-year-old N.S. over
to his grandmother's home. Roberts offered N.S. some
liquor. When N.S. declined, Roberts held a knife to her
throat, cut her, and told her to be quiet. N.S. tried to
leave and Roberts hit her in the back of her head with a
liquor bottle, knocking her unconscious. When N.S. awoke,
Roberts was on top of her, forcing his penis in her mouth.
N.S. screamed, and Roberts threatened to kill her. Roberts
rubbed his penis against N.S. and stabbed her in the back of
her leg with a knife. N.S. escaped when Roberts'
grandmother appeared and asked what was going on.
was charged with two counts of forcible sodomy with a deadly
weapon, two counts of assault in the first degree, two counts
of armed criminal action, and one count of felonious
restraint arising out of the incidents involving W.A. and
N.S. (collectively "Victims").
began February 25, 2013. Prior to the start of voir dire, the
bailiff removed all persons in the courtroom so there would
be space for all members of the sixty-person venire panel.
Voir dire was then conducted and the jury panel was selected
with no objection or mention made on the record about anyone
being excluded from the courtroom during voir dire.
trial, the State presented the testimony of nine witnesses,
including Victims. The defense presented testimony from two
witnesses but Roberts did not testify. The jury found Roberts
guilty on all counts.
the penalty phase of the trial the State presented evidence
that Roberts had previously pled guilty to two counts of
second-degree robbery and one count of attempted first-degree
robbery and was currently serving a ten-year sentence in the
Missouri Department of Corrections. The State argued the jury
should recommend the maximum sentence on each count. Defense
counsel presented no evidence but argued that a maximum
sentence would not be appropriate and asked the jury to
recommend a sentence somewhere in the middle of the sentence
range for each count. The range for each count was: 1)
forcible sodomy with a deadly weapon - 10 years to life; 2)
assault in the first degree - 5 to 15 years; 3) armed
criminal action - 3 years to life; and 4) felonious restraint
- 2 to 7 years. The jury returned these verdicts for each
respective count: 1) forcible sodomy with a deadly weapon -
15 years; 2) assault in the first degree - 15 years; 3) armed
criminal action - 15 years; 4) felonious restraint - 5 years;
5) forcible sodomy with a deadly weapon - 25 years; 6)
assault in the first degree - 15 years; and 7) armed criminal
action - 20 years. The court set the matter for sentencing.
filed a motion for new trial. On April 18, 2013, Roberts'
sentencing hearing was held. After defense counsel argued the
motion for new trial which was denied, the State read
N.S.'s victim impact statement to the court. The court
then sentenced Roberts according to the jury's verdicts,
which resulted in consecutive terms of imprisonment totaling
110 years. The court questioned Roberts regarding the
assistance of counsel he received, but Roberts declined to
answer the court's questions. The court found no probable
cause to believe Roberts had received ineffective assistance
appealed and his convictions were affirmed on direct appeal.
State v. Roberts, 437 S.W.3d 828 (Mo. App. E.D.
2014). Roberts did not raise his claim he was deprived of due
process and a public trial when the bailiff closed the
courtroom and removed members of his family before voir dire.
October 24, 2014, Roberts filed his pro se Rule 29.15 motion.
On December 4, 2014, counsel entered his appearance on
Roberts' behalf and requested an additional thirty days
to file an amended motion which the court granted that day.
On March 4, 2014, Roberts filed an amended Rule 29.15 motion,
alleging he was deprived of his right to a public trial when
the courtroom was closed and his family was excluded during
voir dire. Roberts also alleged numerous claims of
ineffective assistance of trial counsel, including as is
relevant to here, that counsel misadvised him about the
significance of not testifying, failed to cross-examine
Victims about Roberts' penis, and presented no evidence
or argument for a favorable sentence during the penalty phase
of Roberts' trial.
October 30, 2015, Roberts' post-conviction counsel
deposed Roberts' trial counsel. The motion court found
the deposition was admitted into evidence by Roberts'
counsel without objection. In his deposition, Roberts'
trial counsel denied advising Roberts to not testify at trial
and testified that Roberts was adamant he did not want to
testify because had a prior criminal record. With regard to
Roberts' claim about his penis, counsel explained that
Roberts' mother told him she thought Roberts had a small
penis but Roberts said nothing about it and he could not
recall if he and Roberts ever discussed it. Counsel explained
that he did not cross-examine Victims about Roberts'
penis because he did not believe he "was going to get a
lot of traction in pursuing that line" of questioning,
that he thought the jury might find the questioning
offensive, and because he had no evidence to impeach Victims
with other than Roberts' mom's statement.
Roberts' argument about counsel's performance during
the sentencing phase of Roberts' trial, counsel testified
that he argued for the jury to sentence Roberts somewhere in
the middle of the range available because he wanted the jury
to give Roberts a reasonable sentence. He explained that he
presented no evidence before the court because they had
discussed what the judge was going to do in chambers and the
judge had already made up his mind. He said "[a]nything
that happens after that is theater, " and was "not
going to affect the judge's decision." He testified
that he argued to the court in chambers that "this was a
20- to 25-year offense at best, " and he pointed out
several other similar cases and examples to support his
argument. When asked if there was any mitigating evidence he
could have presented, counsel stated that "the judge was
well aware that [Roberts] had psychological issues,
schizophrenic, " that the time to mitigate the situation
is before trial, and that the judge would do whatever he
wanted to do.
March 22, 2016, the court entered an order denying all of
Roberts' ineffective assistance claims without an
evidentiary hearing, but set Roberts' claim alleging the
denial of a public trial for an evidentiary hearing. At the
hearing, Roberts' mother testified that she met her
mother, sister, Roberts' father, Roberts'
grandmother, and a family friend at the courthouse on the
first day of Roberts' trial. She testified that they were
all sitting in the courtroom when the judge came in and
indicated they would call for the jury panel. She testified
that the bailiff motioned for them to leave, that she told
him no and indicated that they wanted to stay, but the
bailiff told them they had to go.
trial counsel testified that he recalled seeing Roberts'
family in the courtroom the morning before voir dire and knew
that they were not in the courtroom during voir dire because
every seat was filled with potential juror members. He
testified that he never consented to closure of the courtroom
and the topic never came up. He testified that he never
waived Roberts' right to a public trial and would not
have if the issue had been raised. He testified that he did
not object to Roberts' family members being removed from
the courtroom because he was not aware it had happened
because he was focused on voir dire.
testified that on the morning of trial his mother,
grandmother, aunt, father, and a family friend were sitting
in the courtroom before the jury panel was brought in and he
saw the bailiff tell them to leave. He testified that his
mother stood up and tried to get his lawyer's attention
but she was unsuccessful. He said he and his attorney were
working on voir dire at the time. He testified that he was
informed he had a right to a public trial after the trial and
he would have raised that ...