Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E.
Mountjoy, Circuit Judge
WILLIAM W. FRANCIS, JR., J.
Green ("Green") appeals from the judgment of the
motion court, following an evidentiary hearing denying his
amended Rule 29.15 motion to set aside his convictions for
attempted forcible rape, two counts of forcible sodomy, and
three counts of first-degree robbery. In one point on appeal,
Green asserts the motion court clearly erred in denying his
post-conviction motion when it found Green's testimony
regarding prejudice not credible. Because the motion
court's denial of Green's Rule 29.15 motion was not
clearly erroneous, we affirm.
and Procedural Background
reciting the facts of this matter, we view the evidence in
the light most favorable to the motion court's judgment.
Day v. State, 495 S.W.3d 773, 774 (Mo.App. S.D.
2016). We include only those facts necessary to our
disposition, and as necessary for context.
December 22, 1995, Green broke into an apartment occupied by
two sisters, R.E. and S.E., who were staying with their
brother, N.E., who was asleep in another room. Green robbed
the sisters, threatened to kill them with a gun, and sexually
assaulted them. Green also stole money from N.E. A pair of
shorts, a pair of underwear, and a bed sheet were collected
at the scene and tested positive for the presence of semen.
Even though police had DNA, they were unable to identify the
perpetrator until July 2006.
2006, Springfield police received a "hit" from a
national DNA indexing system, indicating that the DNA profile
developed from evidence seized at the scene was associated
with Green's DNA profile recently entered into the system
early August 2006, a Springfield detective traveled to
Illinois and served a search warrant on Green to obtain a
buccal swab for further DNA analysis. Green was not arrested
at that time. At the end of August 2006, the DNA analysis
revealed that Green could not be eliminated as a match when
his DNA profile was compared to the DNA profile from the
shorts and a bed sheet obtained from the crime scene.
December 27, 2006, a felony complaint was issued in Greene
County against Green, but Green was already incarcerated in
Illinois as a result of separate pending charges there. On
September 27, 2007, while still incarcerated in Illinois,
Green filed a "Speedy Trial Demand and Motion for Writ
of Habeas Corpus" in his Greene County case.
was located and arrested on March 9, 2009, and charged by
amended information with one count of attempted forcible
rape, two counts of forcible sodomy, and three counts of
August 25, 2010, Green filed a "Motion to Dismiss for
Violation of Defendant's Right to Speedy Trial"
asserting violations of "the Fifth, Sixth, Eighth, and
Fourteenth Amendments of the United States Constitution, as
well as Article One, Sections 10, 18(a), and 21 of the
Missouri State Constitution and [section]
evidentiary hearing on October 12, 2010, Green testified as
to how the length of his pre-trial incarceration had
personally affected him, including the possibility of
termination of his parental rights to his children in
Illinois, the damage to his relationship with his children,
his loss of 60 pounds due to stress, the loss of a business,
and the loss of all of his possessions. Green stated his goal
in filing his demand for speedy trial was to get the Illinois
and Missouri cases "going at the same time[, ]" so
he could get concurrent time or credit for the time he had
spent in jail. The trial court denied Green's motion.
a bench trial commencing on October 19, 2010, Green was
convicted of one count of forcible rape, two counts of
statutory sodomy, and three counts of first degree robbery.
The trial court sentenced Green to consecutive life sentences
on each count. Following the motion court's denial of
Green's post-trial motion, this Court affirmed
Green's convictions and sentences on direct
October 26, 2012, Green timely filed his pro se
"Motion to Vacate, Set Aside, or Correct the Judgment
and Sentence, " and appointed counsel timely filed an
amended motion thereafter. The amended motion asserted, in
relevant part, that trial counsel failed to "adduce
evidence supporting [Green]'s motion to dismiss as to why
he was prejudiced by the delay in his case going to
trial." Green asserted trial counsel would not allow him
to assist in trial preparations, and that there were three
missing pieces of evidence that "could have been used as
a valuable source of impeachment, "-the initial 911 tape
of a call made at 4:30 a.m. on December 22, 1995, and two
medical reports of the physical examinations of S.E. and R.E.
Green "believe[d] the absence of this evidence
prejudiced his defense because it could have been used as a
valuable source of impeachment[, ]" and that had this
"evidence been adduced at the hearing, . . . there [was]