Tate v. State
| Decision Date | 14 April 2015 |
| Docket Number | No. ED 101060,ED 101060 |
| Citation | 461 S.W.3d 15 |
| Parties | Donovan E. Tate, Appellant, v. State of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Matthew Huckeby, Assistant Public Defender, Office of the Missouri Public Defender, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101, for Appellant.
Chris Koster, Attorney General, Evan J. Buchheim, Assistant Attorney General, P.O. Box 899, Jefferson City, Missouri 65102, for Respondent.
Appellant Donovan Tate (“Tate”) appeals from the judgment of the motion court, following an evidentiary hearing, denying his Rule 29.151 motion seeking to set aside his convictions for first-degree robbery and armed criminal action. A jury found Tate guilty of one count of first-degree robbery and one count of armed criminal action stemming from the robbery of a Boost Mobile store. Tate's convictions were affirmed by this Court on direct appeal in State v. Tate, 390 S.W.3d 265 (Mo.App.E.D.2013). Tate subsequently filed a Rule 29.15 motion for post-conviction relief alleging that both trial counsel and appellate counsel provided ineffective assistance of counsel. Following an evidentiary hearing, the motion court denied Tate's Rule 29.15 motion. On appeal, Tate claims that the motion court clearly erred in denying his Rule 29.15 motion because Tate proved by a preponderance of the evidence that (1) appellate counsel was ineffective for failing to assert, on direct appeal, that the trial court erred in overruling Tate's Batson2 challenge to the prosecution's peremptory strike of Juror 558, and (2) trial counsel was ineffective for failing to share with Tate certain incriminating video surveillance evidence and audio recording evidence prior to trial. Because the motion court did not clearly err in concluding that appellate counsel's decision not to pursue a Batson claim on appeal was a reasonable strategic decision, we affirm the judgment of the motion court denying Tate's Rule 29.15 motion alleging ineffective assistance of appellate counsel. Because the motion court did not clearly err in accepting trial counsel's testimony that Tate was adequately informed of the video and audio evidence, we affirm the judgment of the motion court denying Tate's Rule 29.15 motion alleging ineffective assistance of trial counsel.3
Tate was charged as a persistent offender with one count of first-degree robbery and one count of armed criminal action stemming from the robbery of a Boost Mobile store. A jury trial was held before the trial court. At trial, the State introduced, among other evidence, surveillance video showing a suspect identified as Tate robbing the Boost Mobile store and entering a neighboring store prior to the robbery wearing the same clothes. The State also introduced an audio recording of an incriminating phone conversation between Tate and his girlfriend which took place while Tate was in jail awaiting trial.
During voir dire of the jury panel, the prosecutor had the following interaction with Juror 558, a black female:
The State subsequently exercised one of its peremptory strikes to exclude Juror 558 from the jury. Trial counsel made a timely Batson challenge. The prosecutor responded by articulating three reasons for the peremptory strike of Juror 558. The first reason was that Juror 558 wore a hat during voir dire, which differentiated her from the rest of the panel members. The second was that Juror 558 was the only person on the panel who stated that she worked in the child care field. The third reason, which the prosecutor stated was the “main reason” for striking Juror 558, was her demeanor. The prosecutor explained that “I tried to talk to her ... I feel like it upset her, she shut down, she mumbled a little bit, and I feel like I alienated her.” The prosecutor further explained that her attempt to engage Juror 558 had a negative effect: “I feel like it had a chilling effect on her ... I noticed several times she would nod along, or it seemed like she was contributing, but she never raised her hand, so that's why when I tried to single her out, I feel like it had a chilling effect on her.” The trial court denied trial counsel's Batson challenge, reasoning as follows:
Tate was found guilty of both counts and sentenced to concurrent 25–year prison terms. This Court affirmed Tate's convictions on direct appeal in State v. Tate, 390 S.W.3d 265 (Mo.App.E.D.2013). On direct appeal, appellate counsel chose not to raise a claim that the trial court erred in overruling Tate's Batson challenge to the State's peremptory strike of Juror 558.
Tate filed a pro se Rule 29.15 motion for post-conviction relief. Appointed counsel filed an amended motion alleging, inter alia, that appellate counsel was ineffective for failing to assert a Batson claim on direct appeal and that trial counsel was ineffective for failing to share the video surveillance and audio recording evidence with Tate prior to trial.
With regard to the claim relating to appellate counsel, Tate argued that raising the Batson issue with respect to the peremptory strike on Juror 558 on appeal should have been plain and obvious to a reasonably competent attorney. Tate further alleged that if appellate counsel had raised the Batson issue, there is a reasonable probability this Court would have found that the State's peremptory strike of Juror 558 was pretextual and reversed and remanded Tate's case for a new trial.
With regard to the claim relating to trial counsel, Tate argued that a reasonably competent attorney would have shared the surveillance video and audio evidence with Tate prior trial. Tate further alleged that if trial counsel had shared the evidence with him prior to trial, there is a reasonable likelihood that Tate would not have chosen to exercise his right to trial, but rather, would have pleaded guilty.
The motion court held an evidentiary hearing on Tate's amended motion. Appellate counsel testified that she fully considered the Batson issue and made a strategic decision not to raise such a claim on appeal. Appellate counsel testified that while the Batson issue was properly preserved for appeal, she chose not to raise the issue because she “didn't feel it was a good claim.” Appellate counsel explained that she arrived at this conclusion due to the lack of support in the record for raising a Batson claim. Appellate counsel further testified that she was experienced in raising Batson claims on appeal and was familiar with the Batson requirements. Appellate counsel testified that, based on her experience and her review of the record, there was insufficient evidence in the record to conclude that a Batson claim would have been successful on direct appeal. Appellate counsel also explained her strategy when deciding which claims to bring on appeal and which to omit:
The motion court also heard testimony from Trial counsel and Tate regarding the video and audio evidence. Trial counsel testified that she did not arrange for Tate to listen to the audiotape prior to trial, but that she made Tate aware that his conversations with his girlfriend had been recorded and identified the incriminating portion of the audiotape. Trial counsel also testified that she told Tate how the audiotape might negatively affect his case, and that she made it clear to Tate he would likely be found guilty at trial based upon the ample evidence against him.4 Trial counsel added that although Tate did not listen to the audiotape, she “expected that [Tate] knew exactly what he had been saying to [his girlfriend].” Trial counsel further testified that Tate had an opportunity to view the surveillance video in the courtroom prior to the beginning of the trial. Trial counsel also testified that she discussed with Tate the evidence against him, including the surveillance video and audiotape, and how damaging it would be to his case. Trial counsel testified that she explained to Tate why he should consider pleading guilty and that she did not feel Tate could escape conviction due to the amount of evidence against him. Trial counsel testified that Tate insisted upon proceeding to trial.
Tate testified that trial counsel did not give him an opportunity to view the surveillance video prior to trial, and that the first and only time he saw the video was when it was played at trial. Tate admitted that he was aware of the existence of the surveillance...
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