Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E.
Manuel Southern ("Movant") appeals the motion
court's denial, after an evidentiary hearing, of his Rule
29.15 amended motion for post-conviction relief ("the
motion"). His two points on appeal claim the motion
court clearly erred in denying the motion because trial
counsel was ineffective in: (1) failing to immediately object
or move for a mistrial when a nurse practitioner testified
that freezing Movant's urine sample "changed"
the results of a chlamydia test; and (2) failing to
investigate and call a particular witness.
no clear error, we affirm.
of Review & Applicable Law
must prove his grounds for relief by a preponderance of the
evidence. Rule 29.15(i). We will reverse the motion
court's ruling only if its findings of fact or
conclusions of law are clearly erroneous. Rule 29.15(k).
To be entitled to post-conviction relief for ineffective
assistance of counsel, [Movant] must satisfy the two-prong
Strickland test. First, [Movant] must show that his
attorney failed to exercise the level of skill and diligence
that a reasonably competent attorney would exercise in a
similar situation. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second,
the trial counsel's failure must prejudice [Movant].
Id. [. . .]
To meet the performance prong of the Strickland
test, [Movant] must overcome a strong presumption that
counsel's conduct was reasonable and effective.
Id. To overcome this presumption, [Movant] must
point to "specific acts or omissions of counsel that, in
light of all circumstances, fell outside the wide range of
professional competent assistance." Id. A trial
strategy decision may only serve as a basis for ineffective
counsel if the decision is unreasonable. Zink
[v. State], 278 S.W.3d [170, ] 176 [(Mo. banc
2009)]. The choice of one reasonable trial strategy over
another is not ineffective assistance. Id.
"[S]trategic choices made after a thorough investigation
of the law and the facts relevant to plausible opinions are
virtually unchallengeable[.]" Anderson [v.
State], 196 S.W.3d [28, ] 33 [(Mo. banc 2006)] (quoting
Strickland, 466 U.S. at 690, 104 S.Ct. 2052).
To satisfy the prejudice prong of the Strickland
test, [Movant] must demonstrate that, absent the claimed
errors, there is a reasonable probability that the outcome
would be different. Id. A reasonable probability
exists when there is "'a probability sufficient to
undermine confidence in the outcome.'" Id.
at 33-34 (quoting Strickland, 466 U.S. at 694, 104
McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc
Victim and Movant were at a birthday party for Victim's
cousin when Movant forced Victim to have sex with him. Movant
was charged with forcible rape and, in the alternative,
first-degree statutory rape. A jury found Movant guilty of
the lesser-included charge of first-degree statutory rape,
and the trial court sentenced Movant to thirty years in the
Department of Corrections. We affirmed Movant's
conviction and sentence on direct appeal in an unpublished
order and statement. State v. Southern, No. SD32513
(Mar. 27, 2014).
motion alleged, inter alia, that trial counsel was
ineffective for failing "to timely and adequately
object, move to strike, request a continuance and request a
mistrial in response to Nurse [Practitioner] Cindy Tull's
[("Nurse Tull")] undisclosed, unfounded and
prejudicial testimony[, ]" and in failing "to
interview M[.]W[.] and call her as a defense witness at
motion court held an evidentiary hearing on the motion in
August 2015, and both Movant and his trial counsel testified.
Trial counsel testified that the Sexual Assault Forensic
Examination ("SAFE") exam performed on Victim after
the assault showed that Victim had tested positive for
chlamydia -- an important issue in the case. Trial counsel
had also received a lab test that a urine sample taken from
Movant tested negative for chlamydia. Trial counsel thought
this was "the most crucial evidence[, ...