Court of Appeals of Missouri, Southern District, First Division
PATRICK L. BAKER, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF PHELPS COUNTY Honorable William E.
L. Baker ("Movant") appeals the denial, after an
evidentiary hearing, of his amended Rule 29.15 motion seeking
post-conviction relief. Movant's single claim on appeal
is that the motion court clearly erred in finding trial
counsel not ineffective in "request[ing] relief in
addition to the mistrial request, thus resulting in the
alternative relief - not the mistrial - being
considered." Finding no merit in this claim, we affirm.
March 29, 2009, Officer Harry Eckman observed Movant make a
left-hand turn against a red light. Officer Eckman stopped
the vehicle and noted a strong odor of alcohol on
Movant's breath. After having Movant perform numerous
field sobriety tests, Officer Eckman arrested Movant for
operating a motor vehicle while impaired. The officer
searched Movant's vehicle and found a bottle of Bacardi
Rum, a large bottle of Coca-Cola, a cooler filled with ice,
and a cup.
Movant's trial, the prosecutor told the jury in opening
statement that Officer Eckman "found a cup on the
floorboard that had spilled that had some residue left in it
that he sniffed and it smelled like rum and Coke." Trial
counsel objected to the statement, claiming that it was the
first time he had heard that the cup smelled of rum and Coke.
The trial court instructed the prosecutor not to mention the
cup any further in opening statements and instructed the jury
to disregard what the prosecutor had said.
the attorneys had finished their opening statements, the
trial court ordered a recess to further address the cup
located in Movant's vehicle. Trial counsel stated,
"I would actually ask for a mistrial since it was
already brought to the jury's attention, but if that is
not granted, then I'll ask that it be excluded." The
trial court denied counsel's request for a mistrial, but
it excluded the presentation of any evidence that the cup
smelled of rum and Coke. Further, the trial court instructed
both parties not to mention anything about the contents of
the cup or what the cup smelled like.
Eckman was the State's only witness. After testifying
that he found a bottle of rum in Movant's vehicle, the
prosecutor asked, "And what else did you find in the
vehicle at that point?" The officer responded,
"Okay. Found a -- there was a cup that had -- it was
partially filled with some substance." Trial counsel
objected and stated, "I'd ask that that be stricken,
that there be a mistrial at this point or that he [sic] be
stricken." The trial court denied a mistrial but ordered
the jury to disregard Officer Eckman's answer and struck
the testimony from the record.
Principles of Review and Governing Law
presume that the motion court's findings and conclusions
are correct, Davis v. State, 486 S.W.3d 898, 905
(Mo. banc 2016), and we will reverse only if we determine
that they are clearly erroneous. Skillicorn v.
State, 22 S.W.3d 678, 681 (Mo. banc 2000). To prove
ineffective assistance of counsel, a movant must show that
counsel's performance did not conform to the degree of
skill, care, and diligence of a reasonably competent
attorney, and that the movant was thereby prejudiced.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
In doing so, the movant must overcome a strong presumption
that trial counsel's conduct was reasonable and
effective. Davis, 486 S.W.3d at 906. To establish
the necessary prejudice, the movant "must show that
there is a reasonable probability that, but for the
counsel's unprofessional errors, the result of the
proceeding would have been different."
Strickland, 466 U.S. at 694.
mistrial is a drastic remedy reserved only for the most
extraordinary circumstances, State v. Barnett, 980
S.W.2d 297, 305 (Mo. banc 1998), and should only be granted
when the prejudice to the defendant cannot otherwise be
removed. State v. Ward, 242 S.W.3d 698, 704 (Mo.
banc 2008). "Reversal is necessary only where denying a
mistrial prevents a fair trial." State v.
Gilbert, 103 S.W.3d 743, 751 (Mo. banc 2003).
Ineffective Assistance in Requesting Alternative Relief
claims the motion court clearly erred in finding that trial
counsel was not ineffective for requesting alternative relief
in addition to the mistrial request because "the trial
court would have granted a solely mistrial request, since the
second mention at trial of the recovered cup partially filled
with some substance created a prejudice ...