Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis, Cause No.
1622-CC00011, Honorable Rex M. Burlison Judge.
Colleen Dolan, Judge.
Marshall ("Movant") appeals the motion court's
judgment denying his Rule 29.15 motion for post-conviction
relief ("PCR") claiming that his trial counsel
rendered ineffective assistance of counsel. Movant raises
four points on appeal. Specifically, Movant alleges that the
motion court clearly erred in denying his PCR motion after an
evidentiary hearing because he proved by a preponderance of
the evidence that his trial counsel was ineffective for
failing to: object during the prosecutor's
cross-examination of Movant's only witness (Point I);
object during the prosecutor's opening statement (Point
II); present Movant's medical records and evidence of his
physical disability (Point III); and impeach Movant's
wife ("Victim") with her prior inconsistent
testimony (Point IV). Finding that the motion court did not
clearly err in denying Movant's Rule 29.15 motion, we
affirm the judgment of the motion court.
Factual and Procedural Background
was charged with kidnapping, domestic assault in the second
degree, and tampering with a witness. Trial was held before
the Circuit Court of the City of St. Louis on August 4, 2014.
her opening statement, the prosecutor outlined to the jury
what the State's evidence would show to support the
charged offenses. Specifically, the prosecutor made
statements about Movant's drug use. The prosecutor stated
that Movant and Victim's "marriage had been having
problems for some time. The two of them off and on used drugs
and [Victim] knew that it was time for her to get out."
She also mentioned that, on the evening of February 18, 2011,
Movant came to Victim's apartment and that:
[A]s the night progressed [Movant] began smoking crack, and
as he got higher[, ] he got angry.… Finally, [Movant]
grabbed [Victim] by the neck, slammed her into the wall, and
began choking her.… [Movant] had been sitting at the
kitchen table smoking crack while [Victim] and her daughters
were in the living room.
counsel did not object to the prosecutor's statements.
testified as a witness for the State and described the events
that led up to the charged crimes. Victim testified that she
and Movant were married, but their marriage began to
deteriorate after Victim became a witness in a case against
Movant in October of 2010. Consequently, Victim and her
daughters moved to a separate apartment unit in the same
apartment building as Movant. On the evening of February 18,
2011, Movant came to Victim's apartment to inquire about
a letter he believed Victim was hiding from him. Victim
explained that she had no knowledge of the letter and an
argument between the parties ensued. As the evening
progressed, Movant became angry and began yelling at Victim.
In an attempt to stop the argument, Victim raised her voice
back at Movant in response and Movant grabbed Victim by her
hair, causing her to fall from the couch onto the floor. He
then grabbed Victim by the neck, held her up against the
patio door, and choked her. At one point, Movant grabbed a
pair of pliers and hit Victim on the top of her head. Victim
attempted to leave the apartment several times, but Movant
would block the door, stating "you're not going
nowhere." Victim stopped attempting to escape the
apartment due to her fear that Movant would hit her again.
Victim could not call for help since Movant had taken her
cellphone away and removed the battery. Movant eventually
fell asleep and Victim was able to retrieve her cellphone and
its battery. In order to avoid waking up Movant, Victim
texted her sister to call the police. Victim further
testified that when police arrived to her apartment the
following morning, Movant ran out the back
Victim's cross-examination, Victim was questioned about
whether she knew if Movant was disabled. Victim stated,
"I know he gets a check for disability…. In my
opinion I wouldn't say he was disabled.…" On
redirect examination, Victim testified that she was not aware
of any physical condition that would have prevented Movant
from grabbing her and choking her. During
recross-examination, trial counsel attacked Victim's
credibility. Victim admitted to defrauding the government and
the health care agency to which she applied to become
Movant's health care aide by accepting payment for
nursing services she never provided. Victim also admitted
that she had lied under oath at trial.
Williams of the City of St. Louis police department's
Domestic Abuse Response team responded to the call to
Victim's apartment. Detective Williams testified that
Victim was crying and visibly shaken as she described the
events that had taken place. She added that she did not
observe any injuries on Victim, but in her experience that
was not unusual in instances of domestic assault. She
explained that there are several factors that may contribute
to the lack of marks on a victim, such as the amount of
pressure applied, the use or non-use of fingernails, and the
victim's skin tone. Detective Williams also testified
that Victim had declined medical attention, but that this was
not unusual with victims of domestic assault because of the
cost associated with medical care.
mother, Bettye Marshall ("Ms. Marshall"), testified
in Movant's defense. Ms. Marshall testified that Movant
was at her home the evening of February 18th and the
following morning; she affirmed that she did not see Movant
leave the house during that time frame. During Ms.
Marshall's cross-examination, the prosecutor questioned
her about whether she had informed the authorities or
prosecutor regarding her knowledge of Movant's
whereabouts on the dates in question. Ms. Marshall testified
that she had told the officers who arrested Movant at her
home that Movant had been there on February 18th and 19th.
When asked if she talked with a prosecutor about Movant's
case, she stated that "[n]o one asked [her] to
come" talk with a prosecutor, but she did speak to
Movant's public defender. Movant's trial counsel did
not object to this line of questioning.
jury found Movant guilty of kidnapping and domestic assault
in the second degree, but acquitted him on the witness
tampering charge. Movant was sentenced to terms of ten
years' imprisonment for kidnapping and seven years'
imprisonment for second-degree domestic assault; the
sentences were to run concurrently with each other. Our Court
affirmed the conviction and sentences on direct appeal in
State v. Marshall, 476 S.W.3d 307 (Mo. App. E.D.
2015), issuing our mandate on December 18, 2015.
timely filed his pro se Rule 29.15 motion on January
4, 2016. Counsel from the Public Defender's Office
entered an appearance on January 25, 2016. Counsel was
granted an additional thirty days to file an amended Rule
29.15 motion. On March 17, 2016, Movant's post-conviction
counsel timely filed an amended motion and a request for an
evidentiary hearing. The amended motion alleged that trial
counsel was ineffective for failing to: (1) object and
request a mistrial when the State asked Ms. Marshall on
cross-examination about why she did not call the police or
volunteer exculpatory evidence to the prosecutor's
office; (2) object to the prosecutor's references to
uncharged crimes during opening statement; (3) request
records regarding Movant's disability; and (4) impeach
Victim with her previous trial testimony concerning
motion court granted Movant's request for an evidentiary
hearing on his amended motion. A partial hearing was held on
December 15, 2016, and was completed on March 30, 2017. At
the evidentiary hearing, trial counsel acknowledged that,
although she did not remember specifics about the trial, she
knew the facts and circumstances very well at the time of the
trial and felt fully prepared to try the case and defend
questioned regarding her failure to make objections during
the prosecutor's opening statement and cross-examination
of Ms. Marshall, trial counsel testified that she did not
recall her specific trial strategy for not
objecting. Regarding the opening statement, trial
counsel testified it was possible she did not object because
she did not want to call the jury's attention to the
specific statement and believed that the reference of the
uncharged crime was to the actual facts of the incident as
alleged by the Victim. As to the cross-examination of Ms.
Marshall, trial counsel testified that it was possible that
she did not object because Ms. Marshall was not a suspect or
party to the case, therefore she did not have the same right
to remain silent (about Movant's whereabouts).
Movant's medical records, trial counsel testified that
Movant had agreed to proceed with an alibi defense, therefore
she did not believe his medical records would be necessary or
relevant to that defense. At trial, Ms. Marshall was called
as an alibi witness to support the defense that Movant was at
her house at the time of the charged offenses. Because of the
chosen defense theory, trial counsel affirmed that any focus
on collateral matters could have detracted from the alibi
defense. Movant did not produce his medical records at the
regarding the impeachment of Victim, trial counsel stated
that, even though she did not impeach Victim on the basis of
how long she worked as Movant's health care aide and her
knowledge of Movant's medical disability, she
"attacked [Victim's] credibility in other
ways." Trial counsel stated that she believed the points
by which she attacked Victim's credibility were stronger
since Victim ultimately admitted that she had committed fraud
and lied under oath. Additionally, trial counsel testified
that presenting evidence of Movant's medical disability
could have detracted from the alibi defense.
August 16, 2017, the motion court issued its findings of
fact, conclusions of law, and judgment denying Movant's
amended motion. The motion court held that trial counsel was
not ineffective for failing to: (1) object to the
prosecutor's questioning of Ms. Marshall because there
was no legal basis for an objection, and even if there was,
there was no prejudice; (2) obtain and present Movant's
medical records showing he had a medical disability because
Movant "did not produce these records at the evidentiary
hearing and conceded that he had not met his burden of proof
with respect to this allegation"; (3) object to the
prosecutor's reference during opening statement to
Movant's uncharged crime because the objection would have
been unmeritorious and there was overwhelming evidence of
Movant's guilt so that there was no prejudice; and (4)
impeach Victim because trial counsel "extensively
cross-examined Victim and impeached her with regard to other
matters reflecting on her credibility."
Standard of Review
review of a motion court's Rule 29.15 judgment "is
limited to a determination of whether the motion court's
findings of fact and conclusions of law are clearly
erroneous." Price v. State, 422 S.W.3d
292, 294 (Mo. banc 2014); Rule 29.15(k). "Findings and
conclusions are clearly erroneous only if a full review of
the record definitely and firmly reveals that a mistake was
made." Morrow v. State, 21 S.W.3d 819, 822 (Mo.
banc 2000). If a motion court's judgment on a Rule 29.15
motion is sustainable on any ground, then a reviewing court
must uphold it. McGuire v. State, 523 S.W.3d 556,
563 (Mo. App. E.D. 2017).
offers four points on appeal, arguing in each that the motion
court clearly erred in denying his amended Rule 29.15 motion
because he proved by a preponderance of the evidence that his
trial counsel was ineffective in multiple ways. Because all
four points rest on whether counsel provided ineffective
assistance of counsel, we apply the test from Strickland
v. Washington, 466 U.S. 668 (1984) to each point. To
establish ineffective assistance of counsel under
Strickland, a movant must prove "by a
preponderance of the evidence that (1) trial 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."
Hopkins v. State, 519 S.W.3d 433, 436 (Mo.
banc 2017); Strickland, 466 U.S. at 687. If a movant
fails to establish either the performance or the prejudice
prong, "then we need not consider the other and the
claim of ineffective assistance must fail." Roberts
v. State, 535 S.W.3d 789, 797 (Mo. App. E.D. 2017).
satisfy the first prong, a movant must overcome the strong
presumption that trial counsel's conduct was reasonable
and effective by showing "specific acts or omissions of
counsel that, in light of all the circumstances, fell outside
the wide range of professional competent assistance."
McGuire, 523 S.W.3d at 563 (quoting Zink v.
State, 278 S.W.3d 170, 176 (Mo. banc 2009)).
satisfy the prejudice prong of the Strickland test,
a movant must show that there is a "reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Anderson v. State, 196 S.W.3d 28,
33 (Mo. banc 2006); Strickland, 466 U.S. at 694.
"A reasonable probability is a probability sufficient to
undermine confidence in the outcome."
Strickland, 466 U.S. at 694.
Movant's first point, he argues that the motion court
clearly erred in denying his PCR motion because he showed by
a preponderance of the evidence that his trial counsel was
ineffective for failing to object during the prosecutor's
cross-examination of Ms. Marshall when the prosecutor asked
why she did not volunteer exculpatory evidence to the
prosecutor's office or police.
prevail on a claim of ineffective assistance of counsel for
failure to object, a movant must show that counsel's
objection would have been meritorious and the failure to
object resulted in a substantial deprivation of his right to
a fair trial. Shelton v. State, 440 S.W.3d 464, 470
(Mo. App. E.D. 2014). In a claim of ineffective assistance, a
trial counsel's failure to object is ordinarily
considered trial strategy, and is therefore afforded
considerable deference. Nigro v. State, 467
S.W.3d 881, 886 (Mo. App. W.D. 2015).
present case, Movant has failed to show by a preponderance of
the evidence that trial counsel was ineffective for failing
to object to prosecutor's cross-examination of Ms.
Marshall. At trial, Movant's alibi defense was
established by Ms. Marshall's testimony. During Ms.
Marshall's cross-examination, the following questioning
[Prosecutor]: Let me ask you this. Shortly after February 19,
2011, you were aware that your son had been charged with this
case, is that correct?
[Ms. Marshall]: Yes.
[Prosecutor]: Did you ever talk to the police?
[Ms. Marshall]: No.
[Prosecutor]: Never told any police officers that your son
was with you?
[Ms. Marshall]: Oh, yes, I did. I'm sorry. The night that
they came to arrest him.
[Prosecutor]: Who was that?
[Ms. Marshall]: They arrested him at my home.
[Prosecutor]: Who was that that you ...