Martin v. State

• Citation: 526 S.W.3d 169
• Decision Date: 09 May 2017
• Docket Number: WD 79460.
• Parties: Adam R. MARTIN, Appellant, v. STATE of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

526 S.W.3d 169

Adam R. MARTIN, Appellant,

v.STATE of Missouri, Respondent.

WD 79460.

Missouri Court of Appeals, Western District.

OPINION FILED: May 9, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2017

Motion for Transfer to Supreme Court Denied October 5, 2017

Jonathan Sternberg, Kansas City, MO, for appellant.

Robert J. Bartholomew, Jr., Jefferson City, MO, for respondent.

Before Division Two: Cynthia L. Martin, Presiding Judge, Lisa White Hardwick, Judge and Alok Ahuja, Judge

Cynthia L. Martin, Judge

Adam R. Martin ("Martin") appeals from a judgment denying his Rule 29.15 motion after an evidentiary hearing. Martin alleges that it was error to deny his motion because he was sentenced in retaliation for the exercise of his right to testify and to deny his guilt, and because he received ineffective assistance of counsel when trial counsel failed to object to a "hammer" instruction, and failed to adequately investigate and call witnesses to present content found on a social media site. Martin also alleges that the motion court erred by denying two motions seeking a change of judge for cause. Finding no error, we affirm.

Factual and Procedural History

Martin was convicted following a jury trial of sexual assault. He was determined to be a prior and persistent offender, and was sentenced to fifteen years' imprisonment. On direct appeal, this Court affirmed Martin's conviction and sentence. State v. Martin , 425 S.W.3d 147 (Mo. App. W.D. 2014).

The circumstances giving rise to Martin's conviction

On June 28, 2010, seventeen year old T.H. went to Odessa, Missouri to spend time with a girlfriend, A.G. The girls decided to hang out with Martin (who was twenty-four) and Richard Fox. Martin purchased a case of beer. The group went to the Odessa reservoir and drank.

Later, the group went to Martin's house for a bonfire. T.H. had another beer and became "tipsy." Martin made margaritas for the girls. T.H. drank her margarita, then got up to go to the bathroom. She felt "really, really, wobbly." Martin helped T.H. into the house and upstairs to a bathroom. After using the bathroom, T.H. told Martin she felt dizzy. Martin invited her downstairs to sit on the couch.

Martin began to kiss T.H. and then took her hand and forced her to touch his penis through his clothing. T.H. tried to pull away, but Martin held on to her. Martin continued to kiss T.H., and then grabbed her and pulled her on top of him. T.H. felt dizzy, exhausted, and "just wanted to sleep." T.H. found herself lying on her back with Martin on top of her. Martin removed T.H.'s jean shorts and pulled her legs up "really high." T.H. felt a "sharp shooting pain in her vagina." T.H. told Martin to stop. Martin replied "Why?" and did not stop. T.H. unsuccessfully tried to push Martin off of her, then blacked out.

When T.H. awoke, she was crying and could hear A.G. calling her name. A.G. helped T.H. to the bathroom. The girls saw blood on T.H.'s underwear. T.H. noticed her bra was undone in the back.

A.G. asked Martin what had happened, and he said he did not know. Martin told the girls it was time for them to go home. Martin drove the girls back into town, and dropped them off a block from A.G.'s house. A.G.'s mother and the girls contacted the Odessa police.

Detective Nathan Tretter ("Det. Tretter") with the Lafayette County Sheriff's Department was contacted by the Odessa police department early on June 29, 2010. After being briefed about T.H.'s reported rape, he left for Centerpoint Hospital where T.H. had gone for an examination.

Nurse Carolyn Cordle ("Cordle") conducted a forensic examination. During the exam, T.H. was very upset. Cordle noted a laceration injury and redness to T.H.'s cervix. There was also a laceration on her labia along with redness and tenderness. These injuries were consistent with penile penetration from nonconsensual sex. In addition, Cordle noted a white discharge in T.H.'s vaginal opening consistent with the ejaculation of semen. Subsequent DNA testing confirmed that the substance contained Martin's DNA.

After the examination, Det. Tretter spoke with Cordle, and then proceeded to Martin's residence to collect evidence. Martin had already been arrested. On June 30, 2010, Det. Tretter interviewed Martin. Martin denied providing alcohol to the girls, and denied seeing them consume alcohol. Martin told Det. Tretter that he never touched T.H.'s bare vagina, and denied putting his penis in her vagina, even after being told that testing could result in his DNA being found in T.H.'s vagina.

At trial, Martin testified in his own defense. Martin testified that he and T.H. had been involved in a consensual encounter, and were fully clothed while "grinding" their pelvic areas together on the couch. Martin claimed he ejaculated with his penis inside his boxers and shorts. Martin claimed T.H. continued to "grind" on him after he ejaculated.

The jury found Martin guilty of sexual assault.

Martin's sentencing

At sentencing, the State requested imposition of the maximum sentence of fifteen years' imprisonment based on the Sentencing Assessment Report, Martin's prior convictions,¹ and the fact that Martin was on parole when he sexually assaulted T.H. Martin's counsel argued for a five-year sentence.

In sentencing Martin, the trial court noted "a very wide variety of stories" presented at both the trial and at sentencing. The court characterized Martin's testimony suggesting the semen in T.H.'s vagina was the result of "grinding" while Martin was fully clothed as "just ridiculous. It's inconceivable." The trial court stated to Martin: "You lied to me in court. Okay. No doubt in my mind, you lied to me in court." The trial court further noted that the Sentencing Assessment Report contained information that Martin was distributing drugs in jail. The trial court concluded that "any chance of leniency went out the window when you lied to me and when you did what you did after court."

In imposing sentence, the trial court announced that it was taking into consideration the evidence presented, arguments of counsel, the evidence contained in the Sentencing Assessment Report, and Martin's "testimony and dishonesty to the court." The trial court, having previously found Martin to be a prior and persistent offender, imposed the maximum sentence of fifteen years' imprisonment.

Martin's post-conviction proceedings

In July 2014, Martin timely filed a Rule 29.15 motion for post-conviction relief ("Rule 29.15 Motion") with the assistance of counsel. Relevant to this appeal, the Rule 29.15 Motion urged three claims:² (i) that the trial court abused its discretion because it unlawfully based its decision to impose the maximum sentence of fifteen years on Martin's exercise of his right to testify and deny guilt; (ii) that Martin received ineffective assistance of counsel when trial counsel failed to object to the giving of a "hammer" instruction after only two hours and 27 minutes of jury deliberation; and (iii) that Martin received ineffective assistance of counsel when trial counsel failed to adequately investigate and call witnesses who would have presented evidence attacking T.H.'s credibility.

On September 11, 2014, Martin filed a motion for change of judge for cause ("Change of Judge Motion") which claimed that the motion court was a material witness to Martin's claim of retaliatory sentencing. The Change of Judge Motion was overruled, and an evidentiary hearing was scheduled for the Rule 29.15 Motion on August 21, 2015.

At the conclusion of the evidentiary hearing, Judge Rolf took the Rule 29.15 Motion under advisement, and directed the parties to submit proposed judgments "within thirty (30) days." An August 21, 2015 docket entry indicated that the Rule 29.15 Motion was scheduled for case review at 3:00 p.m. on September 21, 2015.

On September 21, 2015, a docket entry reflected Judge Rolf's denial of the Rule 29.15 Motion. Martin's counsel received notice of this docket entry by e-mail on September 28, 2015. The e-mail notification indicated that case review was conducted at 12:20 p.m. on September 21, 2015; that the State was present and Martin's counsel was not; and that no findings of fact or conclusions of law had been filed by Martin. The e-mail notification also indicated that the Rule 29.15 Motion was denied at 1:46 p.m. by a docket entry that directed the State to prepare a judgment. Martin did not file his proposed findings of fact and conclusions of law until around 4:00 p.m. on September 21, 2015, thirty-one days after the August 31, 2015 hearing.³

On September 29, 2015, Martin filed a second motion seeking a change of judge ("Second Change of Judge Motion"). Martin alleged that the September 21, 2015 docket entry indicated that Judge Rolf had an ex parte communication with the State regarding the merits of the Rule 29.15 Motion, requiring disqualification. The Second Change of Judge Motion was argued on October 5, 2015 and November 2, 2015, and was denied on November 2, 2015. The motion court entered findings of fact and conclusions of law denying the Rule 29.15 Motion on November 2, 2015 ("Judgment"). After Martin's motion to amend the Judgment was not ruled within ninety days, the Judgment became final for purposes of appeal.

Martin filed this timely appeal. Additional facts will be discussed where relevant to Martin's points on appeal.

Standard of Review

Appellate review of the denial of an application for change of judge is for abuse of discretion. Burgess v. State , 342 S.W.3d 325, 328 (Mo. banc 2011) (citing Smulls v. State , 10 S.W.3d 497, 504 (Mo. banc 2000) (" Smulls II ")). A court " ‘abuses its discretion when its ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.’ " Dieser v. St. Anthony's Medical Center , 498 S.W.3d 419, 434 (Mo. banc 2016) (quoting Nelson v. Waxman , ...