Roberts v. State

• Decision Date: 19 December 2017
• Docket Number: No. ED 104750,ED 104750
• Citation: 535 S.W.3d 789
• Parties: Kenneth L. ROBERTS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

535 S.W.3d 789

Kenneth L. ROBERTS, Appellant,
v.
STATE of Missouri, Respondent.

No. ED 104750

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: December 19, 2017

FOR APPELLANT: Maleaner R. Harvey, Missouri Public Defender's Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: Shaun J. Mackelprang, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.

Philip M. Hess, Judge

Introduction

Kenneth R. Roberts appeals the denial of his Rule 29.15¹ motion for post-conviction relief. Roberts raises four points on appeal. In point I, Roberts alleges the motion court clearly erred in denying his amended motion because he was deprived of due process and a public trial when the

535 S.W.3d 793

bailiff closed the courtroom and removed members of his family to make room for the venire panel before voir dire. In points II, III, and IV, Roberts contends his trial counsel was ineffective for failing to: 1) sufficiently advise him about testifying at trial; 2) cross-examine the victims about the size of his penis; and 3) present mitigating evidence and argue for a more favorable sentence during the penalty phase of his trial. Finding no clear error, we affirm.

Factual and Procedural Background²

On July 15, 2009, Roberts invited his twenty-year-old friend, W.A., over to his house. Roberts touched and kissed W.A. and she asked him to stop. Roberts stopped but approximately ten minutes later he hit W.A. in the face with a liquor bottle, pushed her onto the floor, and told her he would have sex with her. W.A. told Roberts no and that she was menstruating. Roberts ordered W.A. to perform oral sex on him and forced his penis in her mouth. Eventually W.A. convinced Roberts to allow her to leave.

On August 13, 2009, Roberts invited nineteen-year-old N.S. over to his grandmother's home. Roberts offered N.S. some liquor. When N.S. declined, Roberts held a knife to her throat, cut her, and told her to be quiet. N.S. tried to leave and Roberts hit her in the back of her head with a liquor bottle, knocking her unconscious. When N.S. awoke, Roberts was on top of her, forcing his penis in her mouth. N.S. screamed, and Roberts threatened to kill her. Roberts rubbed his penis against N.S. and stabbed her in the back of her leg with a knife. N.S. escaped when Roberts' grandmother appeared and asked what was going on.

Roberts was charged with two counts of forcible sodomy with a deadly weapon, two counts of assault in the first degree, two counts of armed criminal action, and one count of felonious restraint arising out of the incidents involving W.A. and N.S. (collectively "Victims").

Trial began February 25, 2013. Prior to the start of voir dire, the bailiff removed all persons in the courtroom so there would be space for all members of the sixty-person venire panel. Voir dire was then conducted and the jury panel was selected with no objection or mention made on the record about anyone being excluded from the courtroom during voir dire.

At trial, the State presented the testimony of nine witnesses, including Victims. The defense presented testimony from two witnesses but Roberts did not testify. The jury found Roberts guilty on all counts.

During the penalty phase of the trial the State presented evidence that Roberts had previously pled guilty to two counts of second-degree robbery and one count of attempted first-degree robbery and was currently serving a ten-year sentence in the Missouri Department of Corrections. The State argued the jury should recommend the maximum sentence on each count. Defense counsel presented no evidence but argued that a maximum sentence would not be appropriate and asked the jury to recommend a sentence somewhere in the middle of the sentence range for each count. The range for each count

535 S.W.3d 794

was: 1) forcible sodomy with a deadly weapon—10 years to life; 2) assault in the first degree—5 to 15 years; 3) armed criminal action—3 years to life; and 4) felonious restraint—2 to 7 years. The jury returned these verdicts for each respective count: 1) forcible sodomy with a deadly weapon—15 years; 2) assault in the first degree—15 years; 3) armed criminal action—15 years; 4) felonious restraint—5 years; 5) forcible sodomy with a deadly weapon—25 years; 6) assault in the first degree—15 years; and 7) armed criminal action—20 years.³ The court set the matter for sentencing.

Roberts filed a motion for new trial. On April 18, 2013, Roberts' sentencing hearing was held. After defense counsel argued the motion for new trial which was denied, the State read N.S.'s victim impact statement to the court. The court then sentenced Roberts according to the jury's verdicts, which resulted in consecutive terms of imprisonment totaling 110 years. The court questioned Roberts regarding the assistance of counsel he received, but Roberts declined to answer the court's questions. The court found no probable cause to believe Roberts had received ineffective assistance of counsel.

Roberts appealed and his convictions were affirmed on direct appeal. State v. Roberts , 437 S.W.3d 828 (Mo. App. E.D. 2014). Roberts did not raise his claim he was deprived of due process and a public trial when the bailiff closed the courtroom and removed members of his family before voir dire.

On October 24, 2014, Roberts filed his pro se Rule 29.15 motion. On December 4, 2014, counsel entered his appearance on Roberts' behalf and requested an additional thirty days to file an amended motion which the court granted that day. On March 4, 2014, Roberts filed an amended Rule 29.15 motion, alleging he was deprived of his right to a public trial when the courtroom was closed and his family was excluded during voir dire. Roberts also alleged numerous claims of ineffective assistance of trial counsel, including as is relevant to here, that counsel misadvised him about the significance of not testifying, failed to cross-examine Victims about Roberts' penis, and presented no evidence or argument for a favorable sentence during the penalty phase of Roberts' trial.

On October 30, 2015, Roberts' post-conviction counsel deposed Roberts' trial counsel. The motion court found the deposition was admitted into evidence by Roberts' counsel without objection. In his deposition, Roberts' trial counsel denied advising Roberts to not testify at trial and testified that Roberts was adamant he did not want to testify because had a prior criminal record. With regard to Roberts' claim about his penis, counsel explained that Roberts' mother told him she thought Roberts had a small penis but Roberts said nothing about it and he could not recall if he and Roberts ever discussed it. Counsel explained that he did not cross-examine Victims about Roberts' penis because he did not believe he "was going to get a lot of traction in pursuing that line" of questioning, that he thought the jury might find the questioning offensive, and because he had no evidence to impeach Victims with other than Roberts' mom's statement.

As for Roberts' argument about counsel's performance during the sentencing phase of Roberts' trial, counsel testified that he argued for the jury to sentence Roberts somewhere in the middle of the range available because he wanted the jury to give Roberts a reasonable sentence.

535 S.W.3d 795

He explained that he presented no evidence before the court because they had discussed what the judge was going to do in chambers and the judge had already made up his mind. He said "[a]nything that happens after that is theater," and was "not going to affect the judge's decision." He testified that he argued to the court in chambers that "this was a 20- to 25-year offense at best," and he pointed out several other similar cases and examples to support his argument. When asked if there was any mitigating evidence he could have presented, counsel stated that "the judge was well aware that [Roberts] had psychological issues, schizophrenic," that the time to mitigate the situation is before trial, and that the judge would do whatever he wanted to do.

On March 22, 2016, the court entered an order denying all of Roberts' ineffective assistance claims without an evidentiary hearing, but set Roberts' claim alleging the denial of a public trial for an evidentiary hearing. At the hearing, Roberts' mother testified that she met her mother, sister, Roberts' father, Roberts' grandmother, and a family friend at the courthouse on the first day of Roberts' trial. She testified that they were all sitting in the courtroom when the judge came in and indicated they would call for the jury panel. She testified that the bailiff motioned for them to leave, that she told him no and indicated that they wanted to stay, but the bailiff told them they had to go.

Roberts' trial counsel testified that he recalled seeing Roberts' family in the courtroom the morning before voir dire and knew that they were not in the courtroom during voir dire because every seat was filled with potential juror members. He testified that he never consented to closure of the courtroom and the topic never came up. He testified that he never waived Roberts' right to a public trial and would not...