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Mason v. State

Court of Appeals of Missouri, Eastern District, Third Division

July 24, 2018

KEITH MASON, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of the City of St. Louis Honorable Elizabeth B. Hogan

          OPINION

          Angela T. Quigless, J.

         Keith Mason ("Movant") appeals from a judgment denying his Rule 29.15[1] amended motion for post-conviction relief following an evidentiary hearing. Movant asserts two points on appeal, arguing the motion court clearly erred in denying his motion because trial counsel was ineffective for failing to impeach the victim with a prior inconsistent statement, and trial counsel was ineffective for convincing Movant he did not have the right to testify at trial. We affirm the judgment.

         Factual and Procedural Background

         Movant was charged with one count of first-degree statutory rape, one count of second-degree statutory rape, three counts of first-degree statutory sodomy, and two counts of second-degree statutory sodomy. The charges all related to allegations that Movant engaged in multiple acts of sexual conduct at his home with a child under the age of fourteen between August and October of 2011. Following a jury trial, Movant was found not guilty of first-degree statutory rape, and guilty of all other charges. The court sentenced Movant to a total of twenty-five years in prison.

         This Court affirmed Movant's convictions on direct appeal. State v. Mason, 428 S.W.3d 746 (Mo. App. E.D. 2014). The mandate was issued on May 23, 2014. Movant timely filed a pro se motion for post-conviction relief pursuant to Rule 29.15. Post-conviction counsel entered his appearance on behalf of Movant and was granted an additional thirty days to file an amended motion, which was timely filed. Movant's amended motion asserted trial counsel was ineffective for (1) failing to impeach the victim on cross-examination based on a "change in [her] story" between her initial interview and her deposition, and (2) making Movant believe he did not have the right to testify at trial.

         The court granted Movant's request for an evidentiary hearing on the amended motion, and the parties agreed to submit the case on depositions in lieu of live testimony. Depositions were filed on April 20, 2016. On January 3, 2017, the motion court issued its Findings of Fact, Conclusions of Law and Order denying Movant's amended motion. This appeal follows.

         Additional facts will be set forth in the Discussion section of this Memorandum as necessary to address the issues raised.

         Standard of Review

         Appellate review of the denial of a Rule 29.15 motion for post-conviction relief is limited to determining whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Bolden v. State, 423 S.W.3d 803, 810 (Mo. App. E.D. 2013). The motion court's findings and conclusions are clearly erroneous when we are left with the definite and firm impression that a mistake has been made after reviewing the entire record. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009).

         Discussion

         Both of Movant's points on appeal are based on his constitutional right to effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a movant must prove "by a preponderance of the evidence that (1) defense counsel failed to exercise the level of skill and diligence that reasonably competent counsel would exercise in a similar situation and (2) the movant was prejudiced by that failure." Hoeber v. State, 488 S.W.3d 648, 655 (Mo. banc 2016) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). If a movant fails to satisfy either prong of the Strickland test, he or she is not entitled to post-conviction relief. Hoeber, 488 S.W.3d at 655. To satisfy the performance prong, a movant must overcome the strong presumption that counsel's conduct was reasonable and effective by "pointing to specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Id. To satisfy the prejudice prong, a movant must show a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Id. A reasonable probability exists where there is a probability sufficient to undermine confidence in the outcome. Id.

         I. Point One - Impeachment of the Victim

         In Point I, Movant argues the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief because trial counsel was ineffective for failing to impeach the victim on cross-examination based on a "change in [her] story" ...


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