King v. State
| Decision Date | 06 December 2016 |
| Docket Number | No. ED 103672,ED 103672 |
| Citation | 505 S.W.3d 419 |
| Parties | John KING, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Kevin B. Gau, St. Louis, MO, for appellant.
Chris Koster, Karen L. Kramer, Jefferson City, MO, for respondent.
John King ("King") was convicted in the City of St. Louis on one count of deviate sexual assault and was sentenced to fifteen years in prison. We affirmed King's conviction and sentence on direct appeal. State v. King, 440 S.W.3d 517 (Mo. App. E.D. 2014). King now appeals from the motion court's denial of his amended Rule 29.151 motion following an evidentiary hearing. King alleges ineffective assistance of counsel because trial counsel failed to offer Victim's medical records and King's St. Louis Community Release Center ("SLCRC") records into evidence. Because King cannot establish that trial counsel used an unreasonable trial strategy, the motion court did not clearly err in denying King's amended Rule 29.15 motion. We affirm the judgment of the motion court.
The State charged King with two counts of deviate sexual assault in his original trial. The State alleged that between February 14, 2009, and September 4, 2011, King had deviate sexual intercourse with his stepson ("Victim"). The case proceeded to a jury trial.
At trial, Victim testified that King had anal intercourse with him twenty times after Victim's high school graduation but before his nineteenth birthday. Victim graduated from high school on May 18, 2009, and turned nineteen on February 14, 2010. The alleged abuse occurred in Victim's bedroom at his mother's residence on Saturdays, while his mother attended church and Victim was alone with King. Victim recalled that the sexual acts "felt pretty bad." The State also presented evidence that Victim was at the same developmental level as a seven-to-eight-year-old child.
The State introduced into evidence a video of Victim's interview with the Child Advocacy Center ("CAC") on September 13, 2011. In the CAC video, Victim stated that he was "made to remove" his clothing and was told to not tell anyone. Victim remembered that King would place his penis into Victim's butt and sometimes call out Victim's name during the sexual acts. Victim recalled feeling pain, discomfort, and burning during the sexual acts.
At trial, one of King's defenses centered on Victim's prior recantations of the allegations. King presented the testimony of the former prosecutor in this case, Colleen Lang ("Lang"), who testified that Victim recanted his allegations during a meeting that occurred after Victim's CAC interview. On cross-examination, Lang stated that Victim later reasserted that King sexually abused him and that his desire to forget about the experience caused his recantation at the meeting. King's brothers also testified that Victim informed them that King "didn't do it" in a five-way phone conversation with members of King's family. The State argued that this recantation occurred when King's family members "ganged-up" on Victim.
King also contended that Victim admitted to hospital personnel, during an emergency room visit on September 15, 2011, that he had not experienced any threats or abuse. Victim recalled at trial that he told hospital personnel that "[n]o, I was no threats or no abuse no nothing ... I wasn't hurt by anybody else." Medical records from this emergency room visit noted that Victim The medical records also stated that Victim's rectum was "unremarkable by inspection other than poor wiping technique." Trial counsel did not offer Victim's medical records into evidence.
The jury found King guilty of one count of deviate sexual assault and acquitted him of one count of deviate sexual assault. Finding King a prior and persistent offender, the trial court sentenced him to fifteen years in prison. After we affirmed his judgment and sentence on direct appeal, King filed an amended Rule 29.15 motion and alleged that he received ineffective assistance of counsel. King claimed that trial counsel was ineffective by failing to offer Victim's medical records into evidence because they confirmed Victim's denial of abuse to hospital personnel. King also claimed that trial counsel was ineffective for failing to offer the SLCRC records into evidence, which King believes would have established a partial alibi and contradicted Victim's testimony by narrowing the possible dates that he could have been alone with Victim while Victim's mother was at church.
At the evidentiary hearing, King testified that he was a resident at the SLCRC from September 20, 2008, until July 7, 2010. The SLCRC documented King's absences from its premises. King stated that he was not permitted to visit family members, such as Victim, except for a four-hour period on weekends. King testified that he often scheduled his family visits during the evening. Victim's mother attended church on Saturdays from ten in the morning until four or five in the evening. The SLCRC records only showed seven Saturdays between May 18, 2009, and February 14, 2010, on which King checked out during the morning or early afternoon for potential family visits. King contended that these seven Saturdays were the only possible times he could have been at Victim's residence while Victim's mother was at church.
Trial counsel also testified at the evidentiary hearing. Regarding Victim's medical records, King's trial counsel testified that he had reviewed and considered the records prior to trial. Trial counsel explained his purpose in wanting to establish a rapport with the jury and believed that presenting Victim's medical records, which were created a year and half after the alleged abuse occurred, would have hampered this effort. Additionally, trial counsel determined that Victim's medical records were cumulative, as witnesses' testimony "more or less" introduced the contents of the medical records into evidence. Trial counsel asserted that he "did not want it to come across at trial that I was hanging my hat on one statement in a medical record that on recross or rebuttal from the State a witness could have gotten up and said this is a question that is asked very quickly." Trial counsel wanted to rely on witnesses' testimony over "a few words pulled from a medical record that didn't have context."
Regarding the SLCRC records, trial counsel recalled that he also had received and considered these records before trial. Trial counsel remembered "debating" whether or not to use the SLCRC records in King's defense before deciding not to introduce the records into evidence at trial. Trial counsel considered as a "factor" in his decision the fact that the SLCRC records were records of the Missouri Department of Corrections. Trial counsel also testified that he had been informed by State that a rebuttal witness was available to testify that the SLCRC records were unreliable and inaccurate. Finally, trial counsel reasoned that the vague timeline as to when the charged crimes occurred decreased the effectiveness of a partial alibi defense.
The motion court denied King's amended Rule 29.15 motion after the evidentiary hearing. The motion court found, as to both claims, that trial counsel made a reasonable, strategic decision not to use the respective records. The motion court also found that trial counsel's decision not to use Victim's medical records did not prejudice King because this information came into evidence through other testimony. This appeal follows.
King raises two point on appeal. King contends that the motion court erred in denying his amended Rule 29.15 motion alleging ineffective assistance of counsel because reasonably competent trial counsel would have introduced both records into evidence. King first argues that competent trial counsel would have offered Victim's medical records into evidence to show that Victim denied any claims of abuse only two days after his CAC interview and that Victim showed no signs of permanent injury or anal scarring during the medical examination. King next asserts that competent trial counsel would have offered the SLCRC records into evidence to establish a partial alibi defense and to impeach Victim's claim that King abused him twenty times.
We review the judgment on a Rule 29.15 motion for post-conviction relief to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Moore v. State, 328 S.W.3d 700, 702 (Mo. banc 2010). A motion court's findings of fact and conclusions of law are clearly erroneous only if our review of the full record leaves us with "a definite and firm impression that a mistake has been made." Moore, 328 S.W.3d at 702. The motion court's ruling is presumptively correct, and we will defer to the motion court's determinations of credibility. Forrest v. State, 290 S.W.3d 704, 708, 715 (Mo. banc. 2009).
King's two points on appeal both argue that he received ineffective assistance of trial counsel. A defendant's right to counsel, as guaranteed by state and federal constitutions, includes the right to effective assistance of counsel. Ervin v. State, 80 S.W.3d 817, 821 (Mo. banc 2002). Failure to receive effective assistance of counsel can form the basis of a claim for post-conviction relief. Rule 29.15(a); Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005).
To succeed on a motion for post-conviction relief for ineffective assistance of counsel, a movant must satisfy the two-prong Strickland test by a preponderance of the evidence. Zink v. State, 278 S.W.3d 170, 175–76 (Mo. banc. 2009) (referencing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). The first prong requires a showing that the trial counsel "failed to exercise the level of skill and diligence that a reasonably competent counsel would...
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