              IN THE MISSOURI COURT OF APPEALS
                      WESTERN DISTRICT

AUNDRA WOODS,                                           )
                                                        )
                                      Respondent,       )
                                                        )    WD76297
v.                                                      )
                                                        )    OPINION FILED:
                                                        )    December 9, 2014
STATE OF MISSOURI,                                      )
                                                        )
                                        Appellant.      )


                   Appeal from the Circuit Court of Jackson County, Missouri
                           The Honorable Justine E. Del Muro, Judge

                       Before Division II: Victor C. Howard, Presiding Judge,
                        Alok Ahuja, Chief Judge, and Mark D. Pfeiffer, Judge

        The State appeals from the motion court’s grant of Aundra Woods’s (“Woods”)

Rule 29.151 motion based on ineffective assistance of counsel. We reverse.

                                   Factual and Procedural History2

        On February 22, 2009, female victim G.C.3 went to Woods’s house located at 4620

Kensington in Jackson County, Missouri. Woods and G.C. were friends who often smoked crack


        1
          All rule references are to Missouri Court Rules (2014).
        2
           On appeal from the motion court’s ruling on a Rule 29.15 motion, we view the facts in the light most
favorable to the verdict. Radmer v. State, 362 S.W.3d 52, 53 n.1 (Mo. App. W.D. 2012). Portions of the factual
section herein are adopted from Woods’s direct appeal without further reference. State v. Woods, 357 S.W.3d 249
(Mo. App. W.D. 2012).
together. On this evening, G.C. arrived around 6 p.m. and watched television with Woods while

Woods drank alcohol. They were both seated on Woods’s bed when Woods jumped up and

stabbed G.C. in the hip with a knife. Woods then attempted to stab G.C. in the chest, but she was

able to grab the knife out of his hand and throw it across the room, cutting her hand in the

process.

         Woods then wielded another knife and told G.C. that since he had already stabbed her, he

might as well finish her off. G.C. then made attempts to calm him down. Woods told G.C. to

take her clothes off. He then bandaged G.C.’s stab wound with duct tape and at her request took

her to use the restroom. While G.C. was using the restroom, Woods stood by the door, with the

knife, and told her she was not going anywhere.

         After using the restroom, Woods and G.C. returned to the bedroom where Woods held a

knife to G.C.’s throat and told her to perform oral sex on him. Fearing for her life, G.C.

complied. With the knife still pointed at G.C.’s neck, Woods then tried to insert his penis into

G.C.’s vagina but was unable to maintain an erection.

         After several hours, G.C. requested that she be fed, and at Woods’s direction, she went to

the kitchen to put a biscuit in the microwave. At this point, she escaped through the back door

and knocked on several of the neighbors’ doors seeking help. The Kansas City, Missouri, police

responded to a call and located G.C., only partially clothed (with no clothing from the waist

down other than socks), in the middle of the street at approximately 3:30 a.m. on February 23,

2009.

         G.C. was taken by ambulance to St. Luke’s Hospital where she required seven or eight

staples to close her stab wound and several stitches to treat the cut on her finger. She described


         3
           Because there was evidence of a sexual violation, we use the victim’s initials pursuant to section 566.226.
All statutory references are to RSMo 2000 as currently supplemented unless indicated otherwise.


                                                          2
the assault to police. She then had a Sexual Assault Nurse Examiner (“SANE”) perform a

Sexual Assault Forensic Examination (“SAFE Exam”). The results did not show any evidence

of Woods’s DNA or pubic hairs.

       Woods was arrested on the afternoon of February 23, 2009, at a local motel. Buccal and

penile swabs were collected from him. After a Rapid Stain Identification (“RSID”) test, the

penile swab presumptively indicated the presence of saliva, breast milk, or fecal matter. Later, a

DNA analysis was done on the penile swab, which did not show any DNA from G.C. Similar

presumptive testing was performed relating to blood and semen.

       After a jury trial, Woods was acquitted on the charge of forcible rape but convicted and

sentenced on the remaining two counts: forcible sodomy and assault in the second degree.

       We affirmed Woods’s conviction. State v. Woods, 357 S.W.3d 249 (Mo. App. W.D.

2012). One issue on direct appeal was whether the trial court plainly erred in admitting evidence

related to the RSID test for saliva.        Woods argued that because the RSID test is only

presumptive, the State’s argument implying the presence of G.C.’s saliva on the penile swab was

improper. But because Woods had affirmatively withdrawn any objection to the admission of

the RSID test results, he had waived appellate review. Id. at 255. A second issue on direct

appeal was whether the trial court plainly erred in excluding evidence, as a discovery sanction,

from an investigator working on Woods’s behalf. Id. at 252. But because Woods had not made

an offer of proof, Woods had not adequately preserved the matter. Id. at 254. Our ex gratia

review, however, yielded no error in the exclusion of the investigator’s testimony. Id.

       Woods then filed a Rule 29.15 motion, arguing, inter alia, that his trial counsel was

ineffective for failing to object to the admission of the RSID test results at trial and for failing to

take steps necessary for the admission of the investigator’s testimony. After an evidentiary




                                                  3
hearing, the motion court found that Woods’s trial counsel was ineffective on two grounds: (1)

for consenting to the introduction of the RSID test results and for failing to object to the State’s

improper characterization of the results of this test in closing argument; and (2) for failing to

comply with Rule 25.05 by not turning over notes from an investigator at the public defender’s

office resulting in the trial court’s refusal to allow the investigator to testify, and for failing to

make an offer of proof as to the investigator’s testimony so as not to preserve the issue on direct

appeal.

          The State appeals. Further facts are set forth as necessary.

                                             Standard of Review

          As the movant, Woods4 had the burden of proving his claims for relief by a

preponderance of the evidence. Rule 29.15(i). The standard for proving ineffective assistance of

counsel is high. Middleton v. State, 80 S.W.3d 799, 808 (Mo. banc 2002). Appellate review of a

motion court’s denial of a Rule 29.15 motion for post-conviction relief is “limited to a

determination of whether the findings and conclusions of the trial court are clearly erroneous.”

Rule 29.15(k). “The motion court’s decision will be considered clearly erroneous if a full review

of the record leaves the appellate court with a full and definite impression that a mistake has

been made.” Franklin v. State, 24 S.W.3d 686, 689 (Mo. banc 2000).

          To establish ineffective assistance of counsel warranting post-conviction relief, the

movant must satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687 (1984).

First, the movant must show that counsel’s performance was deficient by falling below an

objective standard of reasonableness. Id. at 688. If counsel’s performance was deficient, the


          4
           As we explain in our ruling today, part of the clear error of the judgment is its failure to adhere to the
evidentiary dictates of Rule 29.15(i). As we explain more fully in the analysis of the two points on appeal, the
judgment erroneously convicted the State for its failure to produce evidence at the Rule 29.15 evidentiary hearing to
contradict Woods’s claims for relief, effectively reversing the burden of proof required by Rule 29.15(i).


                                                         4
movant must then prove that he was prejudiced by counsel’s deficiency. Id. at 687. Prejudice

occurs when there is “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. A “reasonable probability” is a

probability sufficient to undermine confidence in the outcome. Id.

        There is a strong presumption that counsel’s conduct was reasonable and effective. Id. at

689. To overcome this presumption, the movant must point to specific acts or omissions of

counsel that, in light of all the circumstances, fell outside the wide range of effective assistance.

Id. at 690. Strategic choices made after a thorough investigation of the law and the facts are

virtually unchallengeable. Id.

                                                      I.

        By way of background, the State’s first point on appeal concerns pre-trial and trial

proceedings surrounding the RSID test results, presumptively showing the presence of

alpha-amylase, a component of saliva.5 Woods’s trial counsel moved in limine to exclude

admission of the presumptive testing for saliva. Trial counsel’s motion in limine also sought to

exclude any evidence of similar presumptive test results for semen and blood. The trial court

preliminarily sustained the motion but noted to the State that “if you show me some case law that

says presumptive tests alone is [sic] sufficient evidence to bring that issue forward I’ll permit it.”

Before evidence was presented, the State argued that presumptive tests are admissible pursuant

to the guidelines established by the Missouri Supreme Court in State v. Taylor, 298 S.W.3d 482

(Mo. banc 2009). After being presented with this precedent, Woods’s trial counsel conceded the




        5
           See State v. Blair, 298 S.W.3d 38, 48 (Mo. App. W.D. 2009) (amylase test for the presence of saliva
admitted into evidence).


                                                      5
admissibility of the presumptive testing as to saliva and semen. The trial court ruled that “since

[defense counsel] is not opposed to that, I think the saliva will come in and the rest do not.”6

         At trial, Patrick Jones (“Jones”), a criminologist with the Kansas City Police

Department’s crime laboratory, testified that he performed a “presumptive test” on the penile

swab that indicated the possible presence of saliva. Jones stressed that the saliva test was

presumptive only:

         A.      That item was tested for the presence of saliva. I used a presumptive test
         to determine whether or not saliva could be present.

         Q.       What was the result of that test?

         A.     Saliva was indicated based upon the use of presumptive tests. And if I
         may clarify?

         Q.       Please do.

         A.      A presumptive test is not an identification test. It’s a test that merely
         indicates the presence of a substance.7 So once again in this case I used a
         presumptive test for the presence of saliva. It does not without a doubt specify
         and indicate or identify the presence of saliva. However, so far in the cases of


         6
            Notably, the trial court and motion court are one and the same judge. And, upon being presented with the
State v. Taylor precedent, the trial court did not simply admit all evidence consented to by Woods’s trial counsel;
instead, the trial court, after being presented with the Taylor precedent, permitted the saliva presumptive test results
but not other presumptive test results evidence to which Woods’s trial counsel had consented. However, as we note
in our recitation of the motion court’s judgment, the motion court found Woods’s trial counsel ineffective for relying
upon the Taylor precedent in precisely the same fashion that the trial court presumably did in admitting the saliva
evidence in the first place. Effectively, this results in the motion court interpreting the Taylor precedent differently
than the trial court did—where the judge in both instances was the same person—hardly the sort of procedural
circumstance that leads one to believe that this was an easy evidentiary call for any of the participants at trial.
Instead, Woods’s trial counsel was faced with “strategic choices made after a thorough investigation of the law and
the facts” which are “virtually unchallengeable.” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (quoting
Strickland v. Washington, 466 U.S. 668, 690 (1984)).
          7
            This testimony is consistent with the definition of “presumptive testing”:

         Once evidence items are selected for further processing, presumptive tests may be conducted to
         determine if biological fluids of interest are present. Several tests exist to screen for blood, semen,
         saliva, and fecal matter, as well as tests that determine if certain biological fluids are of human
         origin. Some of these tests are presumptive, meaning that a positive result reveals the presence of
         a substance found in the fluid of interest.

JUSTICE MING W. CHIN ET AL., FORENSIC DNA EVIDENCE: SCIENCE AND THE LAW, § 3:3 (2014), available at
Westlaw TRG-DNA.


                                                           6
         blood the test I’ve talked about have been confirmatory tests. Those tests have
         identified blood without a doubt on those items.

         Jones explained that substances other than saliva, such as breast milk and fecal matter,

may react to this test. On cross-examination, Woods’s attorney elicited again from Jones the

presumptive nature of the test and that it is not used for conclusive identification of saliva.

         Jarrah Myers (“Myers”), a DNA analyst with the Kansas City police crime laboratory,

testified about her examination of the swab and other evidence. Myers testified that she found

Woods’s DNA on the penile swab but not G.C.’s. Defense counsel elicited from Myers that she

“was not able to detect any foreign information from Aundra Woods[’s] penile swab” and that

the only DNA found on that swab belonged to Woods. However, Myers also testified that

contact DNA, such as saliva, can be removed rather easily “on any type of surface that would be

regularly handled or rubbing off on clothing or washing[;] any of those circumstances would

remove any type of foreign DNA that is present.” Myers indicated that this can take place within

a matter of hours “unless [the tested surface has] been perfectly undisturbed.”8

         The saliva issue arose again during closing argument. The State argued that Woods

forced G.C. “to put her mouth on his penis.” The State also argued that the test “presumptively

showed saliva on the penile swab of the defendant” and “[t]hat backs [G.C.] up.”

         Conversely, Woods’s trial counsel argued that G.C.’s “DNA is nowhere to be found on

Aundra Woods’s penile swab.” She further argued the following:

         [W]e all shed DNA all the time, whatever we touch we can shed DNA on it. . . .
         Common sense tells you that the longer that you have contact with something, the
         greater the friction, the more likely you are to shed DNA and the more likely that
         DNA is transferred to another object or another thing. There is no DNA evidence
         to support that a sexual assault took place. It doesn’t add up.


         8
          Of relevance here, Woods’s permanent residence was his house; but he was found and arrested at a local
motel room hours after the incident, leading the State to argue, without objection at trial or in the present Rule 29.15
motion, that Woods had “cleaned up in that hotel room.”


                                                           7
         Defense counsel also argued that “Even Jarrah Myers and Patrick Jones, the analysts at

the crime lab, same thing, they don’t know, they can’t tell you what happened or who did it or

what actually happened that night.” And later: “There is no DNA evidence to back [G.C.’s

story] up. There is no physical evidence to back it up. All you are left with is [G.C.’s] word and

it doesn’t add up.”9

         The motion court’s judgment wherein Woods’s Rule 29.15 motion is granted on this

issue states, in pertinent part:

         Trial counsel had properly moved in limine, to exclude the admission of a
         presumptive test for saliva, the [RSID] test, to which the court granted, finding
         that the prejudicial effect of the evidence outweighed its probative value. Later
         and before evidence was presented, trial counsel withdrew her motion on behalf
         of the movant, having no objection to the admission of the presumptive test. Trial
         counsel relied on the case of State v. Taylor, 298 S.W.3d 482 (Mo. banc 2009),
         which upon close review, is distinguishable from the case before this court. In
         Taylor, the Missouri Supreme Court found no error in the admission of the
         presumptive phenolphthalein test because a Frye10 hearing had been conducted
         prior to its admission, the nature and limitations of the test had been accurately
         described to the jury and that a further DNA test was performed, the results of
         which were consistent with the presumptive test.

         In this case, no such measures were taken. This case is closer factually to the case
         in State v. Daniels, 179 S.W.3d 273 (Mo. App. W.D. 2005) where the Court of
         Appeals reversed the conviction based on the admission of [presumptive] testing
         without a Frye hearing and the state’s improper argument that the tests were
         proof11 of the presence of human blood. Id. at 285.

         ....



         9
            The effect of these arguments is to submit to the jury that the State presented not just one but multiple
crime scene investigators, and no witness could point to any physical evidence or any physical test results that put
Woods and G.C. together. As these comments suggest, Woods’s trial counsel seized upon the “presumptive” but not
“conclusive” saliva evidence of the State to point out that the State had at its disposal what it needed to make the
DNA link and it failed to do so. This is hardly ineffective closing argument, particularly when we are reminded that
Woods’s allegedly “ineffective” trial counsel was “effective” in obtaining an acquittal on one of the charges against
Woods.
         10
            Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
         11
             Conspicuously absent from the judgment is the word “conclusive.” As we explain later in our ruling
today, it was the State’s argument in Daniels that the presumptive testing constituted “conclusive proof” of the
presence of human blood that was significant to our ruling in State v. Daniels, 179 S.W.3d 273 (Mo. App. W.D.
2005).


                                                         8
         Not objecting to the admission of the presumptive test and not objecting to the use
         of presumptive test results in closing argument to corroborate the credibility of the
         victim where the defense was premised primarily on discrediting the victim’s
         version of events, rises to the level of ineffective assistance of counsel.

         In its first point on appeal, the State argues that the motion court clearly erred in its

interpretation of the law and has, accordingly, wrongfully convicted Woods’s trial counsel of

failing to make non-meritorious objections or objections contrary to the trial strategy that was

reasonably—and effectively—employed by trial counsel in closing argument. We agree.

                              What This Point Is Not About: A Frye Hearing

         Woods argued to the motion court that a significant aspect as to trial counsel’s

ineffectiveness was trial counsel’s failure to demand a Frye hearing as to the scientific reliability

of RSID testing for any purpose. Woods argued to the motion court that he is left only with the

unscientifically challenged testimony of crime lab criminologist Jones, and it is unknown

whether the nature and limitations of the RSID test were accurately described to the jury. 12

Clearly, the motion court agreed with Woods and found it significant to its judgment that the

“protective measure” of a Frye hearing was not conducted. However, the judgment neglects to

mention that, there was no evidence presented at the Rule 29.15 evidentiary hearing as to what

the scientific evidence would have demonstrated had there been a Frye hearing.

         The only witnesses that Woods presented at the Rule 29.15 evidentiary hearing were his

two trial attorneys, an investigator from the public defender’s office, and Woods. None of these

witnesses testified as to the scientific unreliability of the RSID test and no other evidence was

offered for that purpose at the hearing. Absent such evidence, which Woods bore the burden of

         12
             Any complaint regarding what evidence was actually presented about the usefulness and limitations of
the RSID test at Woods’s trial is an evidentiary claim that was apparent at trial. Hence, Woods was required to raise
that issue in his direct appeal and he cannot use Rule 29.15 to seek review of matters that should have been raised on
direct appeal. See Melillo v. State, 380 S.W.3d 617, 621 (Mo. App. S.D. 2012) (“If a claim was apparent at trial,
then it is an issue for direct appeal, not a Rule 29.15 proceeding. Rule 29.15 cannot be used to review matters which
were or should have been raised on direct appeal.”) (citations omitted) (internal quotation marks omitted).


                                                          9
presenting at the Rule 29.15 evidentiary hearing, Woods was not entitled to rely upon such claim

of trial counsel ineffectiveness, because he failed to come forward with any evidence of

prejudice. “Allegations in a post-conviction motion are not self-proving.” Stevens v. State, 353

S.W.3d 425, 431 (Mo. App. S.D. 2011) (internal quotation omitted). In response to failing to

present evidence of how the movant was prejudiced by his trial counsel’s alleged ineffectiveness,

the court in Weekley v. State, 265 S.W.3d 319, 323 (Mo. App. S.D. 2008), stated: “Mere

conclusory speculations of prejudice by Movant are not considered substantive evidence of

counsel’s ineffectiveness.” Finally, in Borst v. State, we reversed a motion court’s grant of a

Rule 29.15 motion claiming ineffective assistance of counsel, in part, because the conclusory

allegations by movant as to the contents of medical and school records that allegedly would have

led to a different result at trial were not presented as evidence at the Rule 29.15 evidentiary

hearing; as such, we concluded that the movant had failed to meet his burden of proving

prejudice required by the prejudice prong of the Strickland test. 337 S.W.3d 95, 102-03 (Mo.

App. W.D. 2011).

       Similarly, here, trial counsel’s failure to request a Frye hearing could not serve as a basis

to grant post-conviction relief where no evidence of what such a Frye hearing would have

produced was offered at the Rule 29.15 evidentiary hearing. Plainly, the lack of a Frye hearing

request at trial is a red herring unsupported by any evidence of prejudice sufficient to meet the

prejudice prong of the Strickland test.

                            What This Point Is About: State v. Taylor

       Understanding that the lack of a Frye hearing is irrelevant, we turn to the two key cases

concerning admissibility of presumptive testing on which Woods relies: State v. Taylor, 298

S.W.3d 482 (Mo. banc 2009), and State v. Daniels, 179 S.W.3d 273 (Mo. App. W.D. 2005).




                                                10
       In Missouri, our Supreme Court has announced the rule for the admissibility of

presumptive testing, even in the absence of confirmatory testing. In Taylor, a phenolphthalein

test, which is a presumptive test used to determine the possible presence of blood, was at issue,

and the Supreme Court concluded:

       Scientific tests do not have to be conclusive to be admissible. Although some
       states require that the test be conclusive, other states have held that presumptive
       blood tests are admissible as long as the test is accurately described so it is helpful
       to the jury. If the jury is fully informed, the fact that the test may react positively
       to substances other than blood affects the weight given to the evidence, not its
       admissibility.

Taylor, 298 S.W.3d at 500 (emphasis added) (citations omitted). The Taylor court held that the

presumptive test results were relevant and admissible because the scientific testimony at trial

accurately described the evidentiary limitations of presumptive testing, describing such test

results as reflecting the “possible” not “conclusive” presence of blood. Id. at 501.

       Conversely, in Daniels, we reversed a conviction after the State improperly argued to the

jury that luminol (i.e., presumptive) testing was conclusive proof of the presence of blood, where

(1) the defendant had requested a Frye hearing (as to the issue of the conclusiveness of luminol

testing) that was refused by the trial court; (2) the State failed to introduce scientific test results

to corroborate its argument that luminol tests constituted conclusive test results for the presence

of blood; (3) and the State failed to produce any other evidence that would have otherwise

corroborated the State’s argument that it had conclusively proven the presence of blood (in

defendant’s house and car). Daniels, 179 S.W.3d at 284-85. In Taylor, the Supreme Court

described the Daniels holding as follows: “Daniels found that the trial court erred in permitting

evidence of positive luminol test results as conclusive proof of the presence of blood in the

defendant’s car and house without conducting a Frye hearing to determine if such tests are

conclusive.” Taylor, 298 S.W.3d at 501 (emphasis added).



                                                  11
       Here, perhaps because the State agreed that it was not permitted to argue that RSID

presumptive testing was conclusive proof of saliva on the relevant penile swab (nor did the State

ever argue that it was conclusive), Woods’s trial counsel—who was familiar with RSID

presumptive testing from other cases—did not request a Frye hearing. Thus, unlike Daniels:

(1) the State did not offer proof of presumptive testing for saliva as conclusive proof of the

presence of saliva; (2) the State presented voluminous evidence about presumptive RSID testing

and its limitation to only demonstrating the possible presence of saliva (as well as other possible

contributing substances) and expressly limited its argument to the jury accordingly; and (3) a

Frye hearing was never requested by Woods at trial to challenge the scientific reliability of RSID

test results for the limited nature in which those results were offered by the State. Plainly,

Daniels has limited applicability to the circumstances of this case.

       Nor would Taylor have provided the basis for a meritorious objection. Because no Frye

hearing was conducted—unlike Taylor—there was no way of knowing whether the State’s

witnesses at trial had accurately described the limitations of the RSID test and had not otherwise

produced evidence confirming the results of the presumptive RSID test. As we have previously

detailed in our ruling today, it is not the State’s burden to prove (at the Rule 29.15 evidentiary

hearing) that Frye hearing evidence would have corroborated its presentation of RSID

presumptive testing; rather, it is movant’s (i.e., Woods’s) burden of proving that the Frye hearing

evidence would not have corroborated the State’s RSID testing presentation of evidence. Woods

has not done so and cannot now complain of Frye hearing error.

       Instead, like Taylor, the RSID test in Woods’s trial was accurately described as a

presumptive test, indicating only the possible presence of saliva (as well as other contributing

substances). Thus, as in Taylor, since “the jury [was] fully informed, the fact that the test may




                                                12
react positively to substances other than [saliva] affects the weight given to the evidence, not its

admissibility.” Taylor, 298 S.W.3d at 500.

       Given Taylor’s applicability, Woods’s trial counsel cannot be convicted of incompetence

for failing to raise a non-meritorious objection.          “Counsel is not required to make

non-meritorious objections, and ‘counsel is not ineffective for failing to make non-meritorious

objections.’”    Williams v. State, 205 S.W.3d 300, 305 (Mo. App. W.D. 2006) (quoting

Worthington v. State, 166 S.W.3d 566, 581 (Mo. banc 2005) (internal citation omitted)). See

also Johnson v. State, 406 S.W.3d 892, 905 (Mo. banc 2013); Forrest v. State, 290 S.W.3d 704,

714 (Mo. banc 2009). Thus, this record leaves us with a full and definite impression that an error

has been made.

       Furthermore, as detailed above, Woods’s trial counsel ably cross-examined all of the

State’s witnesses and made a compelling argument that utilized the results of the RSID

presumptive testing in combination with the DNA test results (which were negative for G.C.’s

DNA being found on Woods and negative for Woods’s DNA being found on G.C.). Even were

we to assume that a continuing objection at trial to the RSID test results or any mention of those

results as corroborating G.C.’s testimony would have led the trial court to exclude such evidence

or argument and that such ruling would not have been an abuse of discretion, “[t]he selection of

witnesses and evidence are matters of trial strategy, virtually unchallengable in an ineffective

assistance claim.” Johnson, 406 S.W.3d at 900 (internal quotation omitted). “No matter how

ill-fated it may appear in hindsight, a reasonable choice of trial strategy cannot serve as a basis

for a claim of ineffective assistance of counsel.” Id. “In many instances seasoned trial counsel

do not object to otherwise improper questions or arguments for strategic purposes.” State v.

Tokar, 918 S.W.2d 753, 768 (Mo. banc 1996). “It is feared that frequent objections irritate the




                                                13
jury and highlight the statements complained of, resulting in more harm than good.”           Id.

Specifically, as to closing argument:

       Trial counsel is granted vast latitude and judgment about whether or when to
       make objections. Merely because a trial counsel failed to object to everything
       objectionable, does not equate to incompetence. In many instances seasoned trial
       counsel do not object to otherwise improper questions or arguments for strategic
       purposes. As such, the failure to object during closing argument only results in
       ineffective assistance of counsel if it prejudices the accused and deprives him of a
       fair trial.

Greer v. State, 406 S.W.3d 100, 105 (Mo. App. E.D. 2013) (citations omitted) (internal quotation

marks omitted).

       Ineffective assistance of counsel is rarely found in cases where trial counsel has
       failed to object [to closing argument]. The movant must prove that a failure to
       object was not strategic and that the failure to object was prejudicial. . . . The
       failure to object to closing argument constitutes ineffective assistance only when
       the comment was of such a character [that] it resulted in a substantial deprivation
       of defendant’s right to a fair trial.

Cornelious v. State, 351 S.W.3d 36, 44 (Mo. App. W.D. 2011) (citations omitted) (internal

quotation marks omitted).

       Here, though Woods’s trial counsel could not recall at a Rule 29.15 evidentiary hearing

some three years after Woods’s trial what the trial strategy was for not objecting to the RSID

presumptive testing evidence, trial counsel’s cross-examination of the State’s evidence and

closing argument at trial demonstrate a pattern of welcoming all of the State’s purported “junk

science” evidence so that it could be demonstrated to the jury time and time again that none of

the physical evidence or any testing thereof linked Woods’s DNA to G.C. This trial strategy was

not only reasonable, it was also effective in leading to Woods’s acquittal on the charge of

forcible rape. And, as to those charges that Woods was convicted of, there was ample evidence

of Woods’s guilt, including G.C.’s expansive, descriptive testimony of Woods’s actions with

regard to forced oral sex at knifepoint; G.C.’s half-naked and lacerated appearance when police



                                               14
picked her up in the middle of the night; and, G.C.’s “flat affect” to the nurse that performed the

SAFE exam, a characteristic that the nurse indicated was not an unusual response for rape

victims.

       Woods failed to satisfy either the performance prong or the prejudice prong of the

Strickland test, and he failed to establish his right to post-conviction relief based on trial

counsel’s failure to object to the admission of the RSID testing. The motion court clearly erred

in concluding otherwise. Accordingly, the State’s first point on appeal is granted.

                                                II.

       In its second point, the State contests the motion court’s ruling that defense counsel was

ineffective concerning the excluded testimony of Winnie Jamison (“Jamison”), a criminal

investigator with the public defender’s office. The facts giving rise to the State’s second point

begin with defense counsel’s opening statement, in which she discussed G.C.’s various and

inconsistent statements with Officer David Roberts (“Officer Roberts”) and Detective Miller

(“Detective Miller”) and statements during G.C.’s deposition:

              What she doesn’t give are details about being raped. It’s only after Officer
       Roberts reminds [G.C.] that she told him she had been raped that she fits her story
       of being raped in the time line of events that she has already described for Officer
       Roberts. [G.C.] gives three more statements regarding the events of February
       22nd, February 23rd, 2009. She talks with Detective Miller, gives a formal
       statement. She talks with Winnie Jamison on the phone. And she comes in for a
       deposition in which a court reporter, the prosecutors and I are present.

             You will hear about each of these statements and the inconsistencies
       between them.

       After defense counsel’s opening statement but prior to calling the first witness, the State

approached the bench and stated that although Jamison was an endorsed witness, her testimony

was to involve photographs and “then also the fact that she was present for interviews of

witnesses and those sorts of things. I have received no information about a statement that my



                                                15
victim made to Winnie [Jamison] over the phone.” The State argued, inter alia, that the defense

had not complied with Rule 25.05(a)(2) because the defense had not turned over notes or other

documentation from the telephone conversation. The trial court ruled in favor of the State, and

Jamison did not testify.

       At trial, defense counsel cross-examined G.C. extensively about statements she made to

Officer Roberts and Detective Miller, and also about G.C.’s deposition statements. Defense

counsel pointed out that G.C. gave a lot more detail during the deposition about the specific

conversation she had with Woods than she did during her interviews with police. Defense

counsel also pointed out that the details were different in the various statements that G.C. gave.

       During closing argument, one of defense counsel’s themes centered around G.C.’s story,

which counsel argued “doesn’t add up.” She argued that when Officer Roberts arrived on the

scene, G.C. made no mention of the vaginal and oral sex. Woods’s counsel pointed out that G.C.

did not initially mention the rape: “I submit to you that any woman who has been raped for

hours, that is going to be the first thing you are thinking about, that is going to be the first thing

that someone says. It’s not going to be an after thought.” Defense counsel pointed out that G.C.

forgot to mention the rape “not once but twice.” Defense counsel argued:

               [G.C.] wants you to believe that she actually remembers more now about
       what happened that night than she did about a year ago when it happened. Her
       story changes with different tellings. One time he pulls down her pants, the next
       time he’s standing in the doorway of the bathroom with his hand on the doorjamb.
       One time he walks toward the kitchen when she’s in there getting that Egg
       McMuffin, other times he’s still in the bedroom, never came out. One time she
       tells you he threatens her with kerosene, the other time she doesn’t say anything
       about the kerosene. And there are other inconsistencies as well.

               But her stories actually become more detailed as far as the dialogue goes,
       it becomes more fantastic as time has gone on. She wants you to believe that
       when she thinks she is going to die what she does is says hey, if you are going to
       kill me, you’ve got to feed me first. That he stabs her out of nowhere, rapes her,
       threatens to kill her, and tells her so in many various different phrases that you



                                                 16
       heard, and then he’s like oh, you are hungry, yeah, sure, there is an Egg
       McMuffin in the microwave, go heat it up. He knows where his back door is.
       Her story defies logic and it doesn’t add up.

       During the evidentiary hearing on Woods’s Rule 29.15 motion, roughly three years after

the trial, defense counsel testified that she was going to use Jamison as a rebuttal witness

depending on G.C.’s testimony. Defense counsel remembered deposing G.C. She remembered

that Jamison “had spoken with [G.C.], and that some of her statements were different than other

statements that we had in discovery.” She testified that it was “possibly [her] intention to

impeach [G.C.] from statements she had made to Miss Jamison.” Defense counsel also testified

that she had not believed she needed to turn over Jamison’s notes to the State if she were calling

Jamison as a rebuttal witness and that it was not trial strategy not to disclose the notes.

       Defense counsel also stated, however, that she cross-examined G.C. at trial and that she

“was able to elicit essentially the same information from her.” Defense counsel further testified:

             Q.     Do you believe that there was information that Miss Jamison
       would have been able to represent that would have been different or helpful to the
       case?

              A.      I don’t believe that there was anything that was different because
       as I recall [G.C.], when she testified, admitted that she had made inconsistent
       statements. She didn’t fight me on that, so I mean, I believe that the information
       that was elicited through [G.C.] wasn’t different necessarily than what would
       have been elicited through Miss Jamison.

       Defense counsel additionally testified that she did not attempt to make an offer of proof

concerning what Jamison’s testimony would have been and that there was no trial strategy in not

making an offer of proof.

       At the Rule 29.15 evidentiary hearing, Woods called Jamison as a witness. Jamison

testified that she remembered reviewing G.C.’s statements before speaking with her. Jamison




                                                  17
took notes about that conversation.            Consistent with defense counsel’s testimony, Jamison

testified in part:

               Q.      Do you recall in your conversation with [G.C.] whether she would
        have provided perhaps conflicting information than you had received from other
        statements that you had been given?

                 A.       Yes.

                 Q.       Were you prepared to testify as to that conflicting information?

                 A.       Yes, I was.

        Woods, however, never elicited from Jamison what the conflicting information would

have been.13

        The judgment on this point states:

        Although trial counsel states at the evidentiary hearing that her intent was to call
        Ms. Jamison as a rebuttal witness, no such representation was made to the court at
        the trial, as shown [in the excerpts from defense counsel’s testimony at the
        evidentiary hearing]. Her opening statements certainly suggested calling
        Ms. Jamison in Movant’s case in chief. Further[,] trial counsel admitted at the
        evidentiary hearing that there was no trial strategy for failing to make an offer of
        proof. The court determined that trial counsel did not provide the statement to the
        state and violated Rule 25.05(A)(1) [sic].

        When the defense is prohibited from calling a witness who would contrdict [sic]
        the testimony of the State’s key witness, it is incumbent upon the defense to make
        an offer of proof. An offer of proof allows trial counsel one last opportunity to
        convince the trial court to reverse the ruling and if the ruling is not reversed, to
        properly preserve the issue for direct appeal. Making an offer of proof was
        critical in this case, especially when the testimony being excluded would directly
        contradict the complaining witness’s testimony. The only method for reversing
        the court’s ruling is for trial counsel to make an offer of proof to demonstrate to
        the court that the probative value of the evidence outweighs any prejudicial effect

        13
            Instead, Woods appears to believe he is entitled to a presumption of prejudice. Woods improperly relies
upon a direct appeal case relating to the erroneous exclusion of evidence and a corresponding presumption of
prejudice. State v. Bashe, 657 S.W.2d 321, 325 (Mo. App. S.D. 1983). Here, first, we previously have ruled that the
evidence that was excluded at trial was not erroneously excluded. State v. Woods, 357 S.W.3d 249, 254 (Mo. App.
W.D. 2012). Further, the current appeal is not a direct appeal from a conviction in which the State bore the burden
of proof. Instead, we are reviewing a post-conviction claim of ineffective assistance of counsel in which the burden
of proof has been shifted to the movant. And, that burden of proving prejudice is satisfied by the movant
demonstrating prejudice by a preponderance of the evidence, not a presumption of the evidence. See Rule 29.15(i);
Neal v. State, 379 S.W.3d 209, 215-16 (Mo. App. W.D. 2012).


                                                        18
        to the state. Trial counsel failed to take this very fundamental and crucial step.
        Further, no attempt was made by trial counsel to allow the state to review the
        contents of the statement, or to offer the state the opportunity to interview
        Ms. Jamison in advance of her testimony, as was encouraged by the court.

        At the evidentiary hearing, trial counsel claimed, despite her inability to recall
        facts in this case, that she cross-examined the witness on her statements that were
        made to Ms. Jamison, but provided no detailed factual information. Without
        factual details from trial counsel at the evidentiary hearing and without the benefit
        of an offer of proof[,] the court cannot determine that what Ms. Jamison would
        have testified to, was in fact addressed on cross-examination. A review of the
        cross-examination of the complaining witness, [sic] does not aid the court in
        determining the content of Ms. Jamison’s report.

        Further, at the evidentiary hearing, although Ms. Jamison was called to testify, she
        was only asked if she obtained a statement from the complaining witness and
        asked whether it contained conflicting information. At no time, during these
        proceedings was Ms. Jamison provided with a copy of the statement and she gave
        no factual testimony about its contents. Ms. Jamison did testify that she believed
        she was at the courthouse during trial and available to be called to make the offer
        of proof during the trial.

        In order to, “determine whether the exclusion resulted in prejudice to the
        [movant], the facts and circumstances of the particular case must be examined
        including the nature of the charge, the evidence presented and the role the
        excluded evidence would have played in the defense’s theory.” State v. Martin,
        103 S.W.3d 255, 261 (Mo. App. W.D. 2003). No one disputes that Ms. Jamison’s
        testimony and the statements she had taken, would contradict the State’s key
        witness.

        Movant was charged with Rape, Second Degree Assault and Forcible Sodomy.
        Movant was acquitted on the Rape, the complaining witness was cross-examined
        regarding her numerous and varied statements to police and in her deposition.
        The excluded testimony would have added yet another witness before the jury to
        hear about additional contradictory statements made by the complaining witness,
        further discrediting her testimony. The offer of proof may have provided the
        court additional information to determine whether the probative value of the
        testimony outweighed the prejudicial effect on the state and the failure to make an
        offer of proof, [sic] denied Movant the opportunity to preserve the error for direct
        appeal.14 Given the facts of this case, resulting in an acquittal as to the rape
        charge along with the undisputed fact that Ms. Jamison’s testimony would further
        discredit the state’s key witness, the Court finds the outcome both at trial and on
        direct appeal may have been different and therefore Movant was prejudiced.

        14
           Though it is not necessary to our ruling today, we also note that, “[a]s a general rule, post-conviction
claims based on counsel’s failure to adequately preserve issues for appeal are not cognizable under Rule 29.15.”
McCoy v. State, 431 S.W.3d 517, 522-23 (Mo. App. E.D. 2014).


                                                        19
       For the reasons stated herein, the court finds that trial counsel was ineffective for
       failing to comply with Rule 25.05(A)(1) [sic], for failing to make an offer of proof
       and for failing to preserve this issue for appeal.

(Citations to the evidentiary hearing transcript omitted.)

       The State argues that the motion court erred in finding that defense counsel was

ineffective for failing to inform the trial court that she anticipated calling Jamison as a rebuttal

witness to impeach G.C. and for failing to make an offer of proof because the excluded evidence

was cumulative in nature and because the motion court placed the burdens of production and

persuasion on the State. We agree.

       “The failure to impeach a witness will not constitute ineffective assistance of counsel

unless such action would have provided a viable defense or changed the outcome of the trial.”

Thompson v. State, 437 S.W.3d 253, 263 (Mo. App. W.D. 2014) (citing State v. Ferguson, 20

S.W.3d 485, 506 (Mo. banc 2000)). Additionally, “counsel will not be found ineffective for

failing to present cumulative impeachment evidence.” Coday v. State, 179 S.W.3d 343, 352

(Mo. App. S.D. 2005).

       We fail to see from the record how Jamison’s testimony would have provided a viable

defense, changed the outcome of the trial, or resulted in reversal on direct appeal had there been

an offer of proof. At best, the record indicates that Jamison’s testimony would have been

cumulative impeachment evidence to G.C.’s testimony, which belied some inconsistencies in her

account of her encounter with Woods. Defense counsel testified that the information that she

elicited through G.C. “wasn’t different necessarily than what would have been elicited through

Miss Jamison.” Woods even called Jamison as a witness at his evidentiary hearing, providing

the opportunity to elucidate the details of any additional impeachment evidence. Jamison stated

only that she was prepared to testify as to “conflicting information.” Woods did not even ask



                                                 20
Jamison at the evidentiary hearing what her testimony would have been about G.C.’s statements

nor were Jamison’s notes proffered at the hearing. Even on appeal, Woods concedes that “it is

unknown what, specifically, Ms. Jamison would have testified to if called as a witness.”15

Accordingly, not only is the motion court’s finding that Jamison would have provided

“additional contradictory statements made by the complaining witness” unsupported by the

record, but also there is no indication that her testimony would have provided a viable defense or

changed the outcome of the trial. Thompson, 437 S.W.3d at 263.

         Irrespective, it was Woods’s burden, not the State’s burden, to prove by a preponderance

of the evidence that trial counsel was ineffective. The motion court’s judgment states that

“[w]ithout factual details from trial counsel at the evidentiary hearing and without the benefit of

an offer of proof[,] the court cannot determine that what Ms. Jamison would have testified to,

was in fact addressed on cross-examination”; and “[Jamison] was only asked if she obtained a

statement from the complaining witness and asked whether it contained conflicting

information. . . . At no time, [sic] during these proceedings was Ms. Jamison provided with a

copy of the statement and she gave no factual testimony about its contents”; and “[t]he offer of

proof may have provided the court additional information” that could have resulted in reversal.

As noted above, it was Woods’s burden to establish factual details from trial counsel and from

Jamison as to what Jamison’s testimony would have been. The lack of evidence concerning the

testimony Jamison could have offered at trial cuts against Woods, the party bearing the burden of


         15
            Woods additionally states in the argument portion of his brief that “[d]espite the fact that Ms. Jamison
testified in the evidentiary hearing that she took notes of her conversation with the complaining witness where
conflicting statements were made, no such notes were able to be located in the trial file.” Woods does not provide a
citation for this statement in violation of Rule 84.04(e), which requires a party to include “specific page references
to the relevant portion of the record on appeal” for all factual assertions in the argument portion of the brief. Our
reading of Jamison’s testimony at the evidentiary hearing does not indicate that the notes could not be located, only
that Jamison did not have them at the evidentiary hearing. Regardless, the concession that the impeachment
evidence was not presented to the motion court is another indication that Woods simply did not meet his burden of
establishing by a preponderance of the evidence that his trial counsel was ineffective.


                                                         21
proof, not against the State. The motion court’s finding that the content of Jamison’s potential

trial testimony is unknown establishes that Woods failed to meet his burden of establishing facts

that would warrant relief under Rule 29.15.

       Given the paucity of developed facts at the evidentiary hearing, we also fail to discern

how the proposed impeachment testimony creates a reasonable probability that the trial’s

outcome would have been different so as to establish prejudice or how an offer of proof could

have resulted in a reversal. “‘If a prior inconsistent statement by a [S]tate’s witness does not

give rise to a reasonable doubt as to Movant’s guilt, such impeachment evidence is not the basis

for a claim of ineffective assistance of counsel.’” Johnson, 406 S.W.3d at 904 (quoting State v.

Twenter, 818 S.W.2d 628, 640 (Mo. banc 1991)). In short, not only did Woods fail to identify or

allege any impeachable statement that would have offered him a viable defense to the two counts

on which he was convicted, his mere assertion of additional impeachment statements in no

fashion gives rise to reasonable doubt of his guilt. See id.

       Accordingly, Woods failed to satisfy either the performance prong or the prejudice prong

of the Strickland test on this point and, therefore, established no right to post-conviction relief.

The motion court clearly erred in concluding otherwise. The State’s second point on appeal is

granted.

                                            Conclusion

       The motion court’s judgment, which granted Woods’s motion for post-conviction relief,

is reversed.



                                              Mark D. Pfeiffer, Judge

Victor C. Howard, Presiding Judge, and
Alok Ahuja, Chief Judge, concur.



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