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Berry v. State

Court of Appeals of Missouri, Southern District, Second Division

July 20, 2018

ROBERT W. BERRY, Appellant,

          APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY Honorable Jennifer Growcock, Circuit Judge

          WILLIAM W. FRANCIS, JR., P.J.

         Robert W. Berry ("Berry") appeals the motion court's denial of his Rule 24.035[1] motion for post-conviction relief after an evidentiary hearing. Finding no merit to his point relied on, we affirm the judgment of the motion court.

         Factual and Procedural Background

         In reviewing a motion court's judgment on a Rule 24.035 motion, we defer to the motion court's credibility determinations (explicit and implicit), viewing the evidence in the light most favorable to the motion court's judgment. Spicher v. State, 547 S.W.3d 579, 583 (Mo.App. S.D. 2018). We recite other evidence as necessary for context and comprehensibility.

         In November 2010, a young girl (with whom Berry had considerable interactions) reported that Berry had sexually abused her. The proper authorities were contacted, and investigations began into the allegations. When Berry's wife ("Wife') learned of the accusations, she took her children and left the couple's joint residence.

         Berry already had a tumultuous relationship with Wife's mother ("Victim"), and was convinced it was Victim who had reported the allegations of sexual abuse to the authorities-it was not.

         On January 9, 2011, Victim and her husband had just finished with church. Victim's husband dropped her off at their home, and then went to the hospital to attend to a medical ailment. Meanwhile, Berry had secretly entered their home.[2] He brought two guns and a crowbar. Berry took the couple's dog into a bathroom, shot it in the neck, and closed the door behind him. He turned off all the lights (including the light on the outside entry way), except for a small light in the kitchen.

         Victim came in the front door, and saw Berry emerge from the hallway. He immediately started shooting at Victim, hitting her several times in the head. Victim tried to get away to the living room, but Berry followed and kept shooting. Victim was hit again, this time in the arm. She tried to call for help, but discovered that her phone was disabled. In desperation, Victim rushed at Berry in the kitchen, and tried to physically fight him off. Berry beat Victim over the head with his rifle, continuing to do so as Victim retreated into the living room. There, Berry hit Victim's head so hard with the rifle that the rifle fell apart in pieces onto the floor.

         Berry ran out the front door. Victim tried to close and lock the front door, but Berry re-emerged and began forcing the door open. When Victim pushed back, Berry shot through the door at Victim. During the struggle, Berry resorted to bashing Victim over the head with a crowbar. Victim tried to barricade the door by pulling her couch in front of it but Berry forced the door open again. She reached to close it when Berry fired and shot her through the hand. Victim got the door closed, and succeeded in barricading it with the couch.

         Victim retreated out the back door and tried to reach a neighbor's home. She got half way across the yard, and was maneuvering through a barbed wire fence, when she suddenly felt Berry put the barrel of his gun to the side of her head. He shot her in the head twice, at point-blank range.

         Astonishingly, Victim got away again, and continued her retreat along the darkest areas of the barbed-wire fence. She looked and listened for Berry. When she thought she was at a sufficient distance from him, she desperately sprinted to her neighbor's house. She quickly explained the situation to the neighbor, who called the authorities. When police arrived, Victim identified Berry as her assailant and passed out. Officers found significant corroborating evidence of the events herein described at the scene.

         Berry fled in his car. He shaved his head and acquired a wig, women's clothing, and a road atlas. Berry made it to Arkansas by the time authorities caught up with him, and led the police on a high-speed car chase before he was apprehended. Police found blue jeans stained with Victim's blood in his car.

         Berry was charged by Information, in Case No. 11CT-CR00014-01, with the class A felony of assault in the first degree (Count I); armed criminal action (Count II), and the class B felony of burglary in the first degree (Count III), for offenses committed on or about January 9, 2011. Berry was subsequently charged in Case No. 13CT-CR00701-0l with the unclassified felony of attempted statutory sodomy of a child less than twelve or in the alternative the unclassified felony of attempted enticement of a child, and two counts of the class B felony of child molestation in the first degree for events occurring between August 1, 2010 and November 30, 2010. These matters were consolidated for trial under case number 11CT-CR00014-01.

         A public defender ("plea counsel") was subsequently appointed on Berry's behalf. The record indicates that plea counsel commenced with a vigorous ...

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