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DIVISION III
DONOVAN E. TATE, ) No. ED101060
)
Appellant, ) Appeal from the Circuit Court
) 0f the City of St. Louis
vs. )
) Honorable Rex Burlison
STATE OF MISSOURI, )
)
Respondent. ) FILED: April 14, 2015
Introduction

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 m
m, 390 S.W.3d 265 (M0. App. ED. 2013). Tate subsequently ﬁled a Rule 29.15 motion for
post-conviction relief alleging that both trial counsei 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

1 All rule references are to M0. R. Crim. P. (2013).

2915 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
m2 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 BM 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

Factuai and Procedural History

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:

2 Batson v. Kentucky, 476 U.S. 79 (1986).
3 Respondent raises procedural challenges with respect to both of Tate’s ineffective assistance claims regarding the
sufﬁciency of the pleadings to pursue an appeal. We will address the merits of each claim.

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whether the challenging party has established purposeful discrimination. To succeed, the
challenging party must show that the explanation offered for the strike was pretextual and that
the true reason for the strike was racial. El;

The record before us clearly reﬂects that appellate counsel made an intentional, strategic
decision not to raise a m claim on appeal, and that her decision was reasonable. Appellate
counsel’s testimony was unambiguous that she was familiar with ﬁg,ng claims and the three—
step approach involved, had raised m challenges in the past, and had a firm understanding
of the legal requirements for bringing a successful claim. Appellate counsel testiﬁed that she
carefully considered the issue before ultimately concluding that the record was insufﬁcient to
support a m challenge, such that the claim would not have been meritorious. Speciﬁcally,
appellate counsel noted that the race of Juror 558 was never identified in the trial transcript of the
Baﬂg challenge, that the race-neutral explanation for the strike that was given H Juror 558 ’s
demeanor h was reasonable, and that there was simply not enough information in the record to
make an argument for the third required step of a m challenge.

Rather than include a non—meritorious “Bwatsgn claim unsupported by the record, appellate
counsel made the strategic choice to focus Tate’s direct appeal on other, stronger claims with
greater chances for success. Appellate counsel’s decision was a reasonable strategy based upon
appellate counsel’s professional judgment, made after a careful analysis of the m issue and
the record. Appellate counsel’s conduct falls well within the wide range of reasonable
professional assistance. Tate has failed to prove that appellate counsel’s strategy was anything
but reasonable. Because Tate failed to prove the performance prong of Strickland, the motion
court did not clearly err in denying Tate’s Rule 29.15 motion alleging ineffective assistance of

appellate counsel. Point One is denied.

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II. The motion court did not clearly err in denying Tatc’s claim alleging ineffective
assistance of trial counsel.

The core of Tate’s claim alleging ineffective assistance of trial counsel is Tate’s
allegation that he had no opportunity to listen to the audiotape or view the surveillance video
prior to trial; was completely unaware of the existence of the audiotape prior to trial; and was
unaware of the incriminating nature of the surveillance video prior to trial. Tate maintains that
had he been made aware of the existence of the audiotape and the nature of the surveillance
video prior to trial, he would have chosen to plead guilty rather than proceed to trial.

During the evidentiary hearing, the motion court elicited testimony from both Tate and
trial counsel regarding these allegations. Trial counsel testiﬁed that although she did not arrange
for Tate to listen to the audiotape prior to trial, she made Tate aware that his conversations with
his girlfriend had been recorded, and identified for Tate the damaging portion of the audiotape to
his case. Trial counsel also testified that she explained to Tate how the audiotape might
negatively affect his case, and that 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 prior to the beginning of the trial. Trial counsel stated that she discussed the
video and audio evidence with Tate and explained how damaging such evidence would be to his
case. Finally, trial counsel testiﬁed that she encouraged Tate to plead guilty, but he insisted upon
proceeding to trial. Tate testiﬁed that although he was aware of the existence of the surveillance
video, he never had an opportunity to View it prior to trial. Tate maintained that had he been
aware of the nature of the surveillance video prior to trial, he would not have gone to trial but
would have instead entered a blind guilty plea. Tate also testiﬁed that he never listened to the

audiotape prior to trial, nor was he aware of its existence until trial. Tate testiﬁed that had he

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been aware of the audiotape prior to trial, he would not have gone to trial but would have instead
entered a blind guilty plea.

In denying Tate’s claim of ineffective assistance of trial counsel, the motion court made
credibility determinations based on the testimony at the evidentiary hearing. The motion court
concluded that trial counsel’s testimony that she discussed the surveillance video and audiotape
with Tate and encouraged Tate to plead guilty was “highly credible.” Conversely, the motion
court found that Tate’s testimony was “not credible with respect to his familiarity with the
evidence and his desire to plead guilty rather than go to trial,” and concluded that Tate was in
fact aware of the surveillance video and audiotape. For these reasons, the motion court denied
Tate’s Rule 29.15 motion with respect to trial counsel’s performance.

At a post-conviction relief evidentiary hearing, the motion court determines the
credibility of the witnesses and is free to believe or disbelieve the testimony of any witness,
including the movant. Hurst v. State, 30l S.W.3d 112, 117 (Mo. App. ED. 2010). On appeal,
We presume that the motion court's ﬁndings and conclusions are correct and defer to the motion
court's determinations of credibility, as the motion court has a “superior opportunity to judge the
credibility of the witnesses.” State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991). Here, the
motion court made clear that it found trial counsel’s testimony highly credible in all respects and
Tate’s testimony not credible with respect to both his familiarity with the audio and video
evidence as well as his desire to plead guilty rather than proceed to trial. The motion court was
free to accept trial counsel’s testimony that Tate was adequately informed of both the video and
audio evidence and that trial counsel advised Tate to plead guilty in light of the evidence, and to
reject Tate’s testimony to the contrary. In light of the motion court‘s credibility ﬁndings, we ﬁnd

that Tate’s claim of ineffective assistance of trial counsel is not supported by the record.

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Accordingly, the motion court did not clearly err in denying Tate’s Rule 29.15 motion alleging

ineffective assistance of trial counsel. Point Two is denied.

Conclusion

The motion court did not clearly err in denying Tate’s claims alleging ineffective
assistance of counsel. The judgment of the motion cou1t denying Tate’s Rule 29.15 motion for

post~conviction relief is afﬁrmed.

K1111 S. Odenwald, Presiding Judge

Robert G. Dowd, J12, J ., Concurs
Gary M. Gaertner, J12, J ., Concurs

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PROSECUTOR: Anyone else in the back row? I did see a lady in the middle row
nodding. [Juror 558], I saw you nodding your head, maybe you're just keeping up.
JUROR 558: Just keeping up, I don't have a problem.

PROSECUTOR: If that question's not resolved, you could still deliberate in this case?
JUROR 558: Yes.

PROSECUTOR: Thank you, ma'am, thank you for letting me pick on you.

PROSECUTOR: And [Juror 558], [just wanted to make sure there wasn't anything else

because you have a 10W voice.

J UROR 558: There wasn't anything else, and I reaily wasn't trying to get your attention.

PROSECUTOR: Fair warning. I will call on you if it looks like you're trying to get my

attention. I don't want to miss anybody. I hope I didn't embarrass you too much. Thank

you.

The State subsequently exercised one of its peremptory strikes to exclude Juror 558 from
the jury. Trial counsel made a timely Baggy; 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 1m
challenge, reasoning as follows:

“{T]he Court believes that the prosecutor has articulated a general, gender 01' race-neutral

explanation for her striking. I believe that the reason, the primary reason is that she,

counsel had a feeling that the potential juror shied away from her, and the Court did

notice that the juror did look down after she was asked a question. I believe that that is

sufﬁcient for a race-neutral explanation.”

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. ED. 2013). On direct appeal, appellate counsel chose not to raise a claim that the trial
court erred in overruling Tate’s mi; 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 m 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 @593
issue with respect to the peremptory strike 011 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 m 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 m issue and made a strategic decision not to
raise such a claim on appeal. Appellate counsel testiﬁed that while the Batstm 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 m claim. Appellate counsel further testified that she was
experienced in raising BM claims on appeal and was familiar with the M 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:

“Well, it's sort of my opinion that if you have several issues that are really strong issues

that have a lot of support in the record, a lot of legal support, where you throw in a[n]

issue where you don't have as much support, that isn‘t necessarily going to help the other

things. I don't really take the approach of kind of throwing everything at the wall to see
what sticks.”

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 piayed at
trial. Tate admitted that he was aware of the existence of the surveillance video, but maintained
that he never viewed the video prior to the trial. Tate testiﬁed that had he been aware of the
nature of the surveillance video prior to trial, he would not have gone to trial but would have
instead entered a blind guilty plea. Tate also testiﬁed that he never listened to the audiotape prior
to trial and was not even aware of its existence until trial. Tate testiﬁed that had he been aware
of the audiotape prior to trial, he would not have gone to trial but would have instead entered a
blind guilty plea.

The motion court subsequently entered its Findings of Fact, Conclusions of Law and
Order denying Tate’s Rule 29.15 motion for post-conviction relief. The motion court found
Tate’s ineffective assistance of counsel claim against appellate counsel to be without merit. The
motion court concluded that the trial court reasonably found that the prosecutor’s reason for

striking Juror 558 was race-neutral and proper based on Juror 558’s demeanor and body

4 In addition to the surveillance video and audiotape, trial counsel was aware that the State planned to introduce
evidence that "Fate’s ﬁngerprints were found on a note used in the robbery, as well as testimony from a handwriting
expert that Tate’s handwriting matched the writing on the note.

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language. The motion court further concluded that appellate counsel did not, as Tate alleged,
overlook the _B_at_s_o__n issue but rather chose not to raise the m issue on appeal for strategic
reasons. The motion court noted that appellate counsel had no duty to raise every issue on
appeal, particularly where she decided to strategically winnow out some issues in favor of others.
The motion court similarly found Tate’s ineffective assistance of counsel claim against
trial counsel to be without merit. The motion court concluded that Tate’s testimony at the
evidentiary hearing was “not credible with respect to his familiarity with the evidence and his
desire to plead guilty rather than go to trial.” The motion court further concluded that Tate was
aware of the surveillance video and the audio tape, and that trial counsel’s testimony that she
discussed both pieces of evidence with Tate was “highly credible.” Finally, the motion court
found that trial counsel’s testimony that she “tried to get [Tate] to plead guilty was also highly

credible.” This appeal follows.

Points on Appeal

Tate presents two points on appeal. In his ﬁrst point on appeal, Tate contends that the
motion court clearly erred in denying his Rule 29.15 motion after an evidentiary hearing because
Tate proved by a preponderance of the evidence that he was denied effective assistance of
appellate counsel. Speciﬁcally, Tate claims that appellate counsel was ineffective for failing to
assert, on direct appeal, that the trial court erred in overruling Tate’s my challenge to the
prosecution's peremptory strike of Juror 558. Tate maintains that had trial counsel raised the
_B_at§g_n claim on direct appeal, there is a reasonable probability that the outcome of his direct
appeal would have been different. In his second point on appeal, Tate contends that the motion
court clearly erred in denying Tate’s Rule 29.15 motion after an evidentiary hearing because
Tate proved by a preponderance of the evidence that he was denied effective assistance of trial

counsel. Speciﬁcally, Tate claims that trial counsel was ineffective for failing to share with Tate

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the incriminating video surveillance evidence and audiotape evidence prior to trial. Tate
maintains that had trial counsel done so, Tate would not have exercised his right to trial but
instead would have pieaded guilty.
Standard of Review

Appellate review of a motion court's denial of a Rule 29.15 motion is limited to a
determination of whether the ﬁndings and conclusions of the motion court are clearly erroneous.
Rule 29.15; Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). The motion court's findings
and conclusions are presumptiveiy correct and will be overturned only when this Court, after
reviewing the entire record, is leﬁ with a “deﬁnite and ﬁrm impression that a mistake has been
made.” Vaca v. State, 314 S.W.3d 331, 334 (Mo. banc 2010).

Discussion

In order to prevail on a claim of ineffective assistance of counsel, a movant must show by
a preponderance of the evidence that (1) his attorney failed to exercise the customary skill and
diligence that a reasonably competent attorney would perform under similar circumstances, and
(2) he was prejudiced thereby. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987) (citing
Strickland v. Washington, 466 US. 668, 687 (1984)). To satisfy the performance prong of the
Strickland test, a movant must overcome the strong presumption that any challenged action was
sound legal strategy. To overcome this presumption, a movant must point to “speciﬁc acts or
omissions of counsel that, in light of all the circumstances, fell outside the wide range of
professional competent assistance.” Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009). To
satisfy the prejudice prong, the movant must demonstrate that, absent the claimed errors, there is

a reasonable probability that the outcome of the proceeding would have been different. I_d.

A movant must satisfy both the performance prong and the prejudice prong to prevail on
an ineffective assistance of counsel claim. m, 738 S.W.2d at 857. In reviewing such a
claim, we are not required to consider both prongs; if the movant fails to satisfy one prong, we
need not consider the other. Li.

I. The motion court (lid not clearly err in denying Tate’s claim alleging ineffective
assistance of appellate counsel.

The standard for reviewing a claim of ineffective assistance of appellate counsel is
essentially the same as that used in a claim against trial counsei. Mallett v. State, 769 S.W.2d 77,
83 (Mo. banc 1989). To satisfy the performance prong of the Strickland test, a movant must
overcome the strong presumption that appellate counsei provided adequate assistance and made
all signiﬁcant decisions in the exercise of reasonable professional judgment. McCain v. State,
317 S.W.3d 657, 660 (M0. App. SD. 2010). To overcome this presumption, a movant must
show that appellate counsel “failed to assert a claim of error which would have required reversal
had it been asserted and which was so obvious from the record that a competent and effective
attorney would have recognized and asserted it.” Reuscher v. State, 887 S.W.2d 588, 591 (Mo.
banc 1994). To be entitled to relief, the movant must show that the error not raised by appellate
counsel was “so substantial as to amount to a manifest injustice or a miscarriage of justice.”
Storey V. State, 175 S.W.3d 116, 148 (Mo. banc 2005). To satisfy the prejudice prong, the
movant must demonstrate that the claimed error was sufﬁciently serious that, if it had been
raised, there is a reasonable probability the outcome of the appeal would have been different.
Tisius v. State, 183 S.W.3d 207, 2i5 (Mo. banc 2006).

There is a strong presumption that appellate counsel’s conduct fell within the “wide range
of reasonable professional assistance.” Strickland, 466 U.S. at 689. Tate bears the burden of

overcoming that presumption by showing that, in light of the circumstances, trial counsel’s

 

decision not to raise a m claim on appeal was not a reasonable legal strategy. Q A
decision made by counsel based on reasonable legal strategy is virtually unchallengeable; rarely
will a strategic decision of counsel be declared so unsound as to constitute ineffective assistance
of counsel. State v. Sanders, 903 S.W.2d 234, 240 (Mo. App. ED. 1995); Malady v. State, 748
S.W.2d 69, 72 (Mo. App. SD. 1988). The reasonableness of appellate counsel’s strategic
decision must be viewed as of the time the decision occurred, taking into consideration the
circumstances of the case. Strickland, 466 U.S. at 689. In addition, appellate counsel has no
duty to raise every non-frivolous claim on appeal. See Jones v. Barnes, 463 U.S. 745 (1983).
This is particularly the case where, as here, appellate counsel makes a strategic decision to omit
weaker arguments in favor of raising stronger claims on appeal: “[A]ppellate counsel has no
duty to raise every possible issue asserted in the motion for new trial on appeal, and no duty to
present non—frivolous issues where appellate counsel strategically decides to winnow out
arguments in favor of other arguments.” Baumruk v. State, 364 S.W.3d 518, 539 (Mo. banc

2012).

The Equal Protection Clause of the United States Constitution prohibits a party from
using a peremptory challenge to remove a potential jury member solely on the basis of gender,
ethnic origin, 01' race. United States v. Martinez-Salazar, 528 U.S. 304, 315 (2000). A claim that
a peremptory strike was based on any impermissible ground is commonly referred to as a Bitsgn,
challenge and requires three steps. First, the challenging party must establish a prima facie
showing of purposeful discrimination by identifying one or more stricken venire panel members
and the cognizable group to which they belong. State v. Parker, 836 S.W.2d 930, 933 (Mo. banc
1992). Second, the burden shifts to the party that made the peremptory strike to offer a race- or

gender-neutral explanation for the strike. lg, at 934. Third, the trial court must determine

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