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Green v. State

Court of Appeals of Missouri, Southern District, Second Division

April 18, 2018

MELVIN GREEN, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E. Mountjoy, Circuit Judge

          WILLIAM W. FRANCIS, JR., J.

         Melvin Green ("Green") appeals from the judgment of the motion court, following an evidentiary hearing denying his amended Rule 29.15[1] 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.

         Facts and Procedural Background

         In 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.

         On 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.

         In July 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 in Illinois.

         In 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.

         On 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.

         Green 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 first-degree robbery.

         On 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] 545.780[.]"[2]

         At an 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.

         Following 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 appeal.[3]

         On 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.[4] 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] a ...


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