Court of Appeals of Missouri, Southern District, Second Division
CHRISTOPHER G. YAEGER, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Calvin R.
Holden, Circuit Judge.
STEFFEN RAHMEYER, P.J.
G. Yaeger ("Movant") appeals the denial, after an
evidentiary hearing, of his Rule 29.15 motion for
post-conviction relief. In two points, Movant contends that the
motion court clearly erred in: (1) rejecting Movant's
claim that trial counsel was "ineffective for failing to
request a curative instruction when a State's witness
disclosed [Movant] had an outstanding probation warrant"
and "as a result thereof, [Movant] was prejudiced";
and (2) rejecting Movant's claim that trial counsel was
"ineffective for failing to request the lesser-included
instruction for the class B felony of robbery in the
second-degree instruction" because there was a
"reasonable probability the jury would have acquitted
[Movant] of the greater offenses [sic] of robbery in the
first-degree." There is no merit to either point; we
affirm the judgment.
demonstrate ineffective assistance of counsel, a movant must
show that counsel's performance (1) "did not conform
to the degree of skill, care, and diligence of a reasonably
competent attorney[, ]" and (2) "that movant was
thereby prejudiced." Skillicorn v. State, 22
S.W.3d 678, 681 (Mo. banc 2000) (internal quotations
omitted); see also Strickland v. Washington, 466
U.S. 668, 687 (1984). When assessing performance, "a
court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance[, ]" and to establish the
necessary prejudice, a movant must show "a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 689, 694.
review a denial of post-conviction relief to determine
"whether the motion court's findings and conclusions
are clearly erroneous." Eastburn v. State, 400
S.W.3d 770, 773 (Mo. banc 2013); see also Gehrke v.
State, 280 S.W.3d 54, 56 (Mo. banc 2009). "The
motion court's findings and conclusions are clearly
erroneous only if, after the review of the record, the
appellate court is left with the definite and firm impression
that a mistake has been made." Soto v. State,
226 S.W.3d 164, 166 (Mo. banc 2007). The motion court's
findings and conclusions are presumed to be correct.
Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016).
January 20, 2012, shortly after midnight, Victim heard a
knock on the door. Victim assumed it was a neighbor by the
name of Michael who usually checked on her at night to make
sure she was okay. When Victim opened the door, she saw the
person she identified later as Movant; she tried to shut the
door but Movant kicked it open. Movant then struck
Victim's arm with the dull backside of a machete blade.
Movant told Victim that he wanted "[m]oney and
dope[;]" however, Victim said she did not have any.
After assaulting Victim several times, Movant took a black
bag full of items belonging to Victim. Victim later
identified Movant in a photo lineup.
contends that the trial court clearly erred in finding that
trial counsel was not ineffective for failing to request a
curative instruction when a State's witness disclosed
Movant had an outstanding probation warrant. Movant is
mistaken that the State's witness disclosed Movant
actually had an outstanding probation warrant. What Officer
David Shanholtzer testified, when asked how Movant was
apprehended, was that Officer Shanholtzer went to an impound
lot to investigate "a possible DWI" by April
Alasbahi. He then testified that another detective had
contacted him and "advised that April Alasbahi is known
to associate with a subject named Christopher Yaeger who had
a possible probation warrant[.]" An objection was made
but the court did not rule on the objection. Although it is
well established that "proof of the commission of
separate and distinct crimes is not admissible, unless such
proof has some legitimate tendency to directly establish the
defendant's guilt of the charge for which he is on
trial[, ]" State v. Reese, 274 S.W.2d 304, 307
(Mo. banc 1954) (internal quotations omitted), here, there is
no such testimony to that effect. The worst that can be said
is that there was an inference that could have been made that
Movant may have been on probation.
Movant's trial counsel testified that while he objected
to the testimony regarding Movant's possible probation
warrant, he did not ask the trial court to make a specific
ruling on the objection or ask for a curative instruction
because he did not "want to point it out to a jury that
a defendant has prior convictions." Trial counsel
further testified that he did not want to call the jury's
attention to Movant's criminal history, nor did he want
to dwell on the issue of a curative instruction. In certain
circumstances, it is reasonable for trial counsel not to ask
for a limiting or curative instruction due to a fear of
highlighting evidence that is not beneficial to the
defendant. See Hill v. State, 532 S.W.3d 744, 748
(Mo.App. E.D. 2017) (trial counsel did not object and request
a curative instruction partly to avoid drawing attention to
the victim's statements about defendant's prior acts
of violence); see also Morris v. State, 763 S.W.2d
327, 332-33 (Mo.App. E.D. 1988) (trial counsel did not
request a curative instruction because trial counsel did not
want to emphasize improper evidence of a codefendant's
conviction); Williams v. State, 712 S.W.2d 404, 407
(Mo.App. W.D. 1986) (trial counsel did not submit an
instruction limiting the jury's consideration of evidence
of uncharged crimes because it would only highlight and
reinforce the evidence of other crimes in the minds of the
jury). Given the fleeting and non-specific nature of the
testimony, it was reasonable for counsel to conclude that it
was better, on balance, not to highlight the testimony by
drawing the jury's attention back to it. Point I is
contends that the trial court erred in finding that trial
counsel was not ineffective for failing to request the
lesser-included instruction for the class B felony of robbery
in the second-degree instruction. At the evidentiary hearing,
trial counsel testified that he did not seek a
lesser-included instruction because the defense was pursuing
an alibi defense. Trial counsel explained that it did not
make sense to request a lesser-included offense since they
were arguing that Movant did not commit the crime. In fact,
trial counsel announced at the very beginning that it was an
"alibi" case and that Victim was a liar.
claims that Supreme Court cases State v. Jackson,
433 S.W.3d 390 (Mo. banc 2014), State v. Pierce, 433
S.W.3d 424 (Mo. banc 2014), and McNeal v. State, 412
S.W.3d 886 (Mo. banc 2013), clearly indicate that a
lesser-included offense must be given. We agree that the
cases indicate that the lesser-included offense must be given
if requested; however, our Supreme Court has not indicated
that a lesser-included offense must be given in every case.
Particularly, McNeal v. State, 500 S.W.3d 841, 844
(Mo. banc 2016), supports a finding of the objectively
reasonable strategy not to request an instruction on a
lesser-included offense. In that case, trial counsel was not
ineffective in failing to request a lesser-included offense.
Id. at 845.
otherwise would undermine a defendant's right to an
"all-or-nothing" strategy. The decision not to
request a lesser-included offense instruction may be "a
tactical decision usually based on the belief - often a
reasonable one - that the jury may convict of the lesser
offense, if submitted, rather than render a not guilty
verdict on the higher offense if the lesser is not
submitted." Hendrix v. State, 369 S.W.3d 93,
100 (Mo.App. W.D. 2012) (internal quotations and citation
omitted). "Counsel has no duty to request an instruction
that would undermine the defense theory presented at
trial." Jones v. State, 514 S.W.3d 72, 81
(Mo.App. E.D. 2017). The decision to pursue an
"all-or-nothing" defense has been consistently
upheld as reasonable trial strategy. See,
e.g., Jones, 514 S.W.3d at 81; Love v.
State, 670 S.W.2d 499, 502 (Mo. banc 1984); Oplinger
v. State, 350 S.W.3d 474, 477-78 (Mo.App. S.D. 2011);
McCrady v.State, 461 S.W.3d 443, 450
(Mo.App. E.D. 2015). Counsel will not be deemed ...