Martin v. State

655 S.W.3d 195

George E. MARTIN, Appellant,

v.STATE of Missouri, Respondent.

WD 84781

Missouri Court of Appeals, Western District.

OPINION FILED: October 11, 2022

Samuel E. Buffaloe, Columbia, MO, for appellant.

Gregory L. Barnes, Jefferson City, MO, for respondent.

Before Division Four: Gary D. Witt, Chief Judge, Presiding, Anthony Rex Gabbert, Judge and W. Douglas Thomson, Judge

Gary D. Witt, Judge

George Martin ("Martin") appeals the judgment of the Circuit Court of Callaway County, Missouri ("motion court"), denying, after evidentiary hearing, his motion for post-conviction relief pursuant to Rule 29.15.¹ Martin argues that the motion court erred in (1) denying Martin's claim that his trial counsel ("Trial Counsel") was ineffective for failing to call a fact witness at trial; and (2) denying Martin's claim that Trial Counsel was ineffective for giving an incompetent closing argument. We affirm.

Factual and Procedural Background²

Martin sexually abused four boys during the summer of 2016: sixteen-year-old J.M., twelve-year-old D.Y., eleven-year-old N.Y., and eleven-year-old D.W.³ J.M., D.Y., N.Y., and D.W. spent time with Martin at his home on multiple occasions throughout the summer. At the time, Martin was fifty-six years old and lived in a trailer on his parents’ property.

One night when J.M. spent the night at Martin's trailer, J.M. took his prescribed sleeping medication and fell asleep. J.M. woke up the next morning to Martin's penis in his anus. He pushed Martin off, fled the property, and contacted a friend to pick him up and give him a ride home. J.M. informed his parents what happened, and his parents contacted law enforcement. J.M. was interviewed by a forensic interviewer. A search warrant was obtained and DNA consistent with J.M.’s DNA profile was identified on the swab from Martin's penis. Martin was arrested later that day after being interviewed by law enforcement. News of Martin's arrest prompted the parents of D.Y., N.Y., and D.W. to ask the boys if anything inappropriate had ever happened while they were at Martin's trailer. The parents decided to contact law enforcement based on the information provided by the boys. The boys reported that Martin frequently asked the boys to take their clothes off, sleep naked with Martin in his bed, watch pornographic movies and Martin would touch their penises and ask them to touch his penis. J.M. reported that Martin had taken naked photographs and videos of the boys including while masturbating to pornographic videos. A second search warrant was obtained and a photograph of D.W. naked, touching his penis, while Martin sat naked next to him was discovered on a laptop computer located in the residence.

A Second Amended Information in Lieu of Indictment charged Martin with twelve counts including: one count of first-degree sodomy in violation of Section 566.060⁴ ; one count of second-degree statutory sodomy in violation of Section 566.064; three counts of sexual misconduct involving a child by inducement in violation of Section 566.083; three counts of enticement of a child in violation of Section 566.151; three counts of first-degree child molestation in violation of Section 566.067; and one count of sexual exploitation of a minor in violation of Section 573.023.

The evidence set forth above was adduced at trial.

Trial Counsel ended her closing argument by telling the jury:

I say to you that Mr. Martin is -- is doing what he believes is correct, and we all know it isn't. The evidence showed that he was a very lonely man. The only way he could get these young men to come to his house was to let them do whatever they wanted to do, not necessarily what their parents would let them do, or if their parents knew would approve of.

They got to shoot guns. How many young boys get to shoot guns? Man. They got to cuss without reprimand. How many young boys get to cuss and carry on without reprimand? They got to run around naked. How many boys get to do that? Now, I'm not saying that's a good thing, I'm just saying that's how Mr. Martin saw it through his eyes.

Mr. Martin was under a lot of stress. His father was trying to remove him out of that property. Even to the point of turning off the water, so he did not have many friends, especially his father. And at some point, it accelerated, the behavior accelerated. Nobody stepped in and said this was wrong. Nobody. The adults. The adult in that household, it's a very sad situation. So you have the -- you now have the burden of determining the future of Mr. Martin.

The jury found Martin guilty of all twelve counts and sentenced him to a total of sixty years in prison: thirty years for first-degree sodomy, seven years for second-degree statutory sodomy, four years for each count of sexual misconduct involving a child by inducement, thirty years for each count of enticement of a child, and fifteen years for each count of first-degree child molestation, all to run concurrently, with an additional thirty years for sexual exploitation of a minor to run consecutively.

On direct appeal, this court issued a per curiam order affirming Martin's convictions. State v. Martin , 584 S.W.3d 831 (Mo. App. W.D. 2019).⁵ Martin timely filed a pro se motion for post-conviction relief pursuant to Rule 29.15, and an amended motion was filed by appointed counsel. The Motion Court held an evidentiary hearing on the amended motion.

Martin was represented at trial by Trial Counsel. Martin's sister, Teresa Martin Wallace ("Wallace"), was not called as a witness at Martin's trial although she indicated she had spoken to Trial Counsel and was present each day of the trial. Wallace testified at the PCR hearing that she visited Martin every weekend while she was on their family property taking care of their mother and regularly visited her brother's residence. The door was never locked and she never knocked; she just walked in unannounced. She testified she had seen the boys at the residence but had never witnessed any inappropriate behavior or anyone naked. Wallace also testified at the motion hearing that she was at Martin's trailer the night that JM alleged he was sexually assaulted; she stopped by to visit with Martin, arriving at 11:00 p.m., and left to go to their parents’ house around 3:00 a.m. The Motion Court then issued Findings of Fact and Conclusions of Law, as well as a Judgment and Order denying relief. This appeal follows.

Standard of Review

Both points on appeal allege claims of ineffective assistance of counsel. Point I alleges counsel was ineffective for failing to call Wallace as a witness at trial, and Point II alleges counsel was ineffective in giving the above-quoted portion of the closing argument. "When reviewing a motion court's denial of a claim of ineffective assistance of counsel, the reviewing court is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Lindsey v. State , 633 S.W.3d 547, 551 (Mo. App. W.D. 2021) (quoting Hays v. State , 360 S.W.3d 304, 309 (Mo. App. W.D. 2012) ); Rule 29.15(k). "A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made." Beck v. State , 637 S.W.3d 545, 551-52 (Mo. App. W.D. 2021) (citing Watson v. State , 520 S.W.3d 423, 428 (Mo. banc 2017) ). "The motion court's findings of fact and conclusions of law are presumed to be correct." Beck , 637 S.W.3d at 551-52 (citing Hays , 360 S.W.3d at 309 ).

Analysis

Both points on appeal argue that the motion court erred in denying Martin's claims of ineffective assistance of counsel.

To establish ineffective assistance of counsel, a movant must prove "by a preponderance of the evidence that (1) trial counsel failed to exercise the level of skill and diligence that reasonably competent counsel would exercise in a similar situation and (2) the movant was prejudiced by that failure." Dorsey v. State , 448 S.W.3d 276, 286-87 (Mo. banc 2014) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). If a movant fails to satisfy either prong of the Strickland test, he or she is not entitled to post-conviction relief. State v. Simmons , 955 S.W.2d 729, 746 (Mo. banc 1997).

To satisfy the performance prong, movants "must overcome the strong presumption that counsel's conduct was reasonable and effective." Johnson v. State , 406 S.W.3d 892, 899 (Mo. banc 2013). This presumption is overcome when a movant identifies "specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Id. (internal quotation omitted).

To establish Strickland prejudice, "a movant must show a reasonable probability that, but for counsel's errors, the outcome would have been different." Dorsey , 448 S.W.3d at 287. "A reasonable probability exists when there is a probability sufficient to undermine confidence in the outcome." Id. (internal quotation omitted).

Beck , 637 S.W.3d at 551-52 (citing Hoeber v. State , 488 S.W.3d 648, 655 (Mo. banc 2016) ).

Point 1; Failure to Call a Fact Witness

Martin's first point on appeal argues that the motion court erred in denying Martin's claim that Trial Counsel was ineffective for failing to call Wallace as a witness at trial. Wallace is Martin's sister who frequently spent time with Martin at his trailer during the time leading up to Martin's arrest.

To succeed on a claim of ineffective assistance of counsel for failure to call a witness, the movant must establish: "(1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness's testimony would have produced a viable defense." Davis v. State , 486 S.W.3d 898, 909 (Mo. banc 2016). "The selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim."

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