Tucker v. State

• Citation: 633 S.W.3d 539
• Decision Date: 22 September 2021
• Docket Number: No. SD 36845,SD 36845
• Parties: Allen TUCKER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

633 S.W.3d 539

Allen TUCKER, Appellant,

v.STATE of Missouri, Respondent.

No. SD 36845

Missouri Court of Appeals, Southern District, Division One.

Filed: September 22, 2021

Appellant's attorney: Mark A. Grothoff of Columbia, MO.

Respondent's attorneys: Eric S. Schmitt, Attorney General, and Richard A. Starnes, Assistant Attorney General, of Jefferson City, MO.

JACK A. L. GOODMAN, J.

A jury found Allen Tucker guilty of first-degree sexual abuse and attempted enticement of a child. We affirmed those convictions on direct appeal. State v. Tucker , 564 S.W.3d 376 (Mo. App. 2018). Tucker moved for post-conviction relief ("PCR") under Rule 29.15 (2018),¹ alleging ineffective assistance of counsel among other claims. The motion court denied relief after an evidentiary hearing.

On appeal, Tucker persists in three of his claims that he received ineffective assistance of counsel: (1) trial counsel's ("Counsel") failure to object to a deputy's comment about Tucker's invocation of his right to remain silent: "I asked him a few basic questions and he just kept denying anything and at that time he said his lawyer told him not to speak anymore," (2) Counsel's failure to object to testimony from a forensic interviewer purportedly vouching for the credibility of the victim, and (3) Counsel's failure to object to the prosecutor asking Tucker during cross-examination to comment on the veracity of other witnesses: "So you want everyone to believe that everyone is lying except for you?"

Legal Principles

We review the denial of a PCR motion for clear error. Staten v. State , 624 S.W.3d 748, 750 (Mo. banc 2021). We presume the ruling is correct and the movant bears the burden to prove otherwise. Id. We view the facts in the light most favorable to the judgment. Id.

To prevail on a claim that he received ineffective assistance of counsel, Tucker must satisfy both the performance and prejudice prongs of the Strickland² test. Staten , slip op. at *4. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland , 466 U.S. at 690, 104 S.Ct. 2052. "Trial strategy decisions may be a basis for ineffective counsel only if that decision was unreasonable." Johnson v. State , 406 S.W.3d 892, 899 (Mo. banc 2013). " ‘Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable.’ " Id. (quoting Anderson v. State , 196 S.W.3d 28, 33 (Mo. banc 2006) ).

" ‘Failure to object to evidence is not sufficient, in and of itself, to constitute ineffective assistance of counsel.’ " Hood v. State , 611 S.W.3d 865, 868 (Mo. App. 2020) (quoting Hays v. State , 360 S.W.3d 304, 312 (Mo. App. 2012) ). In order to prevail on a claim of ineffective assistance of counsel for failure to object to evidence, Tucker bears the burden of proving, among other things, that the failure to object was not strategic and was prejudicial. Id.

Discussion

The motion court found Counsel chose not to object as a matter of trial strategy. The evidence presented at the motion hearing supports this finding. Counsel generally sought to avoid excessive objections so as not to create the perception Tucker was afraid of the jury hearing from witnesses. Counsel also testified to deliberate, strategic reasons for not objecting to the specific testimony at issue in this appeal:

1. Counsel believed the portion of the deputy's statement that, "[Tucker] just kept denying anything" was advantageous to the defense, and he did not want to draw attention to invocation of the right to remain silent. A strategic decision to bolster a defendant's credibility by permitting the jury to hear about the defendant's interview, including the portion in which he invoked his right to remain silent, "is subject to a ‘strong presumption that trial counsel's conduct was reasonable and effective.’ ". State v. Seaton , No. WD83787, 628 S.W.3d 424, 432 (Mo. App. June 29, 2021) (quoting Davis v. State , 486 S.W.3d 898, 906 (Mo. banc 2016) ).

2. Counsel believed the nature of the forensic interview was something that could be better explored on cross-examination than through an objection.

3. Counsel was reluctant to object during Tucker's cross-examination because he testified very well, and Counsel wanted the jury to come away with the impression Tucker was unafraid to answer the state's questions directly. Even though the question about witness veracity may not have been admissible, Counsel knew the jury may want an answer and he was confident Tucker could provide a good one.

Counsel's rationales for not objecting are within the range of professional judgment. "There are countless ways to provide effective...