DERWINN LADELL COLE,                         )
                                             )
       Movant-Appellant,                     )
                                             )
vs.                                          )               No. SD34163
                                             )
STATE OF MISSOURI,                           )               Filed: July 28, 2016
                                             )
       Respondent-Respondent.                )

               APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                            Honorable David C. Jones, Circuit Judge

AFFIRMED

       Derwinn Ladell Cole (“Movant”) brings a claim that his trial counsel was ineffective for

failing to request a mistrial during voir dire when a venireperson claimed to have already

formulated a guilty verdict because of his familiarity with the incident. The motion court found:

              A review of the transcript in this matter does not reveal that such a motion
       was made. However, at the hearing, [trial counsel] testified that he believes that he
       did make such a motion for mistrial after the prospective juror made the comment
       in question. He further went on to testify that he could think of no reason why he
       would not have made such a motion and noted that his trial notes shows [sic] such
       a motion being made. However, [trial counsel] was at a loss to explain why the
       record is devoid of such a request other than to note that the trial judge [in] this
       matter oftentimes did things “differently” and that this conversation might have
       been held with the Court when the Court Reporter was not recording the
       proceedings. This result is a likely possibility since conversations outside of the
       presence of the jury were oftentimes held by that trial judge in an outer hallway due
       to space limitations in the Courtroom and that the Court Reporter might not have
       been present during those conversations.
               [Trial counsel] also testified that he renewed that motion following trial but
       that the motion was denied summarily by the Court. On appeal, the issue of the
       juror’s comments was not raised.
               [Movant] did not rebut counsel’s recollection of events and this Court finds
       that it [was] highly likely, given the totality of the circumstances including
       counsel’s trial notes, that counsel did make such a motion during trial and that it
       was denied by the trial court.
               The Court would note that the prospective juror was stricken from the panel
       after the comment was made. As such, that juror never served on the panel that
       eventually convicted [Movant].
               Moreover, the comments were not of such a nature as to require dismissal
       of the entire panel. Thus, even if counsel did not move for a mistrial, the comments
       made by the prospective juror were not of such a nature to require a mistrial and
       dismissal of the entire panel. Rather, the action taken in striking the juror for cause
       was a sufficient remedy. See, Riley v. State, 2014 WL 5839845 (Mo. App. E.D.
       2014).

       We review the denial of Movant’s postconviction motion to determine whether the

findings of fact and conclusions of law are clearly erroneous, that is, only if, after a review of the

entire record, we are left with the definite and firm impression that a mistake has been made.

Woods v. State, 176 S.W.3d 711, 712 (Mo. banc 2005). We are not left with a firm conviction

that a mistake has been made. Each of the grounds as stated by the motion court is supported by

the record. First, trial counsel testified that he did request a mistrial and was at a loss to explain

why it was not in the record. Second, the motion court confirmed that it was highly likely that

because of crowded conditions, some motions were taken up outside the presence of the court

reporter. Third, even if the motion had not been made, a potential juror stating that he could not

be fair because of his personal relationship with potential witnesses is exactly the reason that

there is voir dire questioning. It is necessary to weed out people who have declared an inability

to be fair and impartial. No extraneous information was imparted to the panel that tainted the

entire panel. This venireperson, after this remark, was struck for cause from the panel. For all of

these reasons, we are not left with a firm conviction that a mistake was made.
       The judgment is affirmed.


Nancy Steffen Rahmeyer, J. - Opinion Author

Daniel E. Scott, J. - Concurs

William F. Francis, Jr., J. - Concurs
