                     In the Missouri Court of Appeals
                             Eastern District
                                         DIVISION ONE
CORNELL MANLEY,                             )     No. ED102454
                                            )
       Appellant,                           )     Appeal from the Circuit Court
                                            )     of the City of St. Louis
vs.                                         )
                                            )     Hon. Robin R. Vannoy
STATE OF MISSOURI,                          )
                                            )     Filed:
       Respondent.                          )     February 23, 2016


       Cornell Manley appeals from the judgment denying his claim for post-conviction relief

under Rule 29.15 after an evidentiary hearing. We affirm.

       Manley was convicted after a jury trial on one count of murder in the first degree, two

counts of assault in the first degree and three counts of armed criminal action. He was sentenced

to life without parole for the murder, fifteen years for each assault and life imprisonment for each

armed criminal action, all to run concurrently. The judgment on his convictions was affirmed on

appeal in State v. Manley, 414 S.W.2d 561 (Mo. App. E.D. 2011). Manley filed a pro se motion

under Rule 29.15 alleging that trial counsel was ineffective for failing to call his alibi witnesses

and for not objecting and seeking a mistrial when the court temporarily closed the courtroom

during his co-defendant’s testimony. Counsel was appointed and filed a timely amended motion.

The motion court held an evidentiary hearing, after which it entered findings of fact and

conclusions of law denying Manley relief on both claims. This appeal follows.
       Our review is limited to a determination of clear error in the motion court’s findings of

fact and conclusions of law. Taylor v. State, 382 S.W.3d 78, 80 (Mo. banc 2012). The findings

are presumed correct, and we must defer to the motion court’s credibility determinations. Tate v.

State, 461 S.W.3d 15, 24 (Mo. App. E.D. 2015). The judgment will be deemed clearly erroneous

only if the entire record leaves us with the definite and firm impression that a mistake has been

made. Taylor, 382 S.W.3d at 80.

       To succeed on a claim for ineffective assistance of counsel, a movant must demonstrate

by a preponderance of the evidence that (1) counsel failed to exercise the customary skill and

diligence of a reasonably competent attorney under similar circumstances and (2) counsel’s

deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984);

Smith v. State, 370 S.W.3d 883, 885 (Mo. banc 2012). To satisfy the first prong of the

Strickland test, a movant “must overcome a strong presumption that counsel’s conduct was

reasonable and effective” by pointing to “specific acts or omissions of counsel that, in light of all

the circumstances, fell outside the wide range of professional competent assistance.” Smith, 370

S.W.3d at 886.     To satisfy the second prong, a movant must show that, absent the claimed

errors, there is a reasonable probability the outcome would have been different. Id. Since both

ineffective performance and prejudice are required, the absence of either element is fatal to an

ineffective assistance claim. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

       In his first point, Manley claims that trial counsel was ineffective for failing to call three

alibi witnesses: the mother of Manley’s children, his brother and his brother’s girlfriend. All of

them were interviewed by trial counsel and were available at trial. They were each willing to

testify that Manley was at a party with them at the time of the crimes. The decision by counsel

to not call these witnesses is presumptively a matter of trial strategy and, as such, is virtually



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unchallengeable. Leisure v. State, 828 S.W.2d 872, 875 (Mo. banc 1992). Manley has not

overcome that presumption in any way, especially given trial counsel’s reasonable explanation

for his decision at the evidentiary hearing.

       Trial counsel explained that if the witnesses testified that Manley was with them at a

party, but Manley did not testify as to the same alibi, then the jury may have drawn a negative

inference. If, on the other hand, Manley did also testify to the alibi, then he would have been

subject to impeachment on cross-examination because he gave the police a statement when he

was arrested in which he said nothing about an alibi. Rather than create this catch-22, counsel

chose not to present the alibi defense at all. Moreover, counsel did not believe this alibi

defense—presented by Manley’s family and friends—was a good strategy in this case:

       The saying we always tell people in jail is that if mama/friend alibis worked the
       jails would be empty. The jury tends to discount those alibis because of the
       familial or friendship relationships.

In any case, at the close of the State’s evidence, trial counsel felt the defense was in pretty good

shape and did not want to “put on the alibi to potentially mess anything up”:


       And the problem with alibis is that if you put them on and there’s even a scent to
       the jury that the alibis are not—they’re not good strong alibis, then the jury in my
       opinion shifts the burden to the defense to prove that he’s innocent. You’d like to
       think that juries wouldn’t do that, but they do that. . . . [I]f you put forth alibi
       evidence the jury has a tendency to look at it and say who do we believe, which
       side do we believe more, the alibi witnesses or the state’s witnesses, and if you
       lose that toss-up match, then you end up losing the trial.

       The motion court found and concluded that trial counsel provided a reasonable trial

strategy for his decision not to call these witnesses, and therefore Manley was entitled to no

relief. This conclusion is not clearly erroneous. See Haidul v. State, 425 S.W.3d 148, 150-151

(Mo. App. E.D. 2014) (strong presumption plus counsel’s explanation showed performance was




                                                 3
not deficient); see also Payne v. State, 21 S.W.3d 843, 845-846 (Mo. App. E.D. 1999) (informed

and rational decision to not put on alibi witness was not deficient performance).

         Point I is denied.

         In his second point, Manley claims that trial counsel was ineffective for failing to object

and request a mistrial when the trial court temporarily closed the courtroom during the testimony

of a co-defendant called on behalf of the State. He claims that had counsel argued that the

closure violated his constitutional right to a public trial, the objection or request for mistrial

would have been granted.1

         The co-defendant agreed to testify against Manley in exchange for a reduction in his

charge from first-degree to second-degree murder, thus a ten-year sentence instead of a life

sentence. Just before the co-defendant took the witness stand at trial, the trial judge told counsel

(outside the hearing of the jury) that she had “concerns about the witness and his testimony” and

therefore the courtroom would be cleared “on both sides”—meaning everyone in the gallery

would be told to leave, not just Manley’s friends and family. Trial counsel objected based on the

increased amount of security personnel during the trial so far, which he said painted a picture for

the jury that Manley’s family and friends were “gangbanging thugs.” He also stated that he was

glad the court was going to clear the entire room, instead of just Manley’s associates, but that he

still had concerns about the impression this left on the jury. At the evidentiary hearing on


1
  This right is derived from the Sixth Amendment to the United States Constitution (“the accused shall enjoy the
right to a speedy and public trial”) and Article I, Section 18(a) of the Missouri Constitution (“the accused shall have
the right to . . . a speedy public trial by an impartial jury”). We need not distinguish between these provisions in our
analysis because of their similarity. See State v. Salazar, 414 S.W.3d 606, 622 (Mo. App. S.D. 2013). Manley also
attempts to assert this right under the First Amendment to the United States Constitution, which extends this right to
the public and the press. See Press-Enterprise Company v. Superior Court of California, 464 U.S. 501, 509 n. 8
(1984). But it is not clear that Manley, or any other defendant, is entitled to assert the public’s or the press’s rights
under the First Amendment in addition to his own right under the Sixth Amendment. See State v. Williams, 328
S.W.3d 366, 371 (Mo. App. W.D. 2010) (noting United States Supreme Court has not yet reached issue). In any
event, we need not decide the issue because there has been no violation of the right to a public trial in this case. See
id.

                                                           4
Manley’s post-conviction motion, trial counsel said he did not have a firm idea of the law

regarding the right to a public trial, but knew that it existed and objected on the grounds that

closure would be prejudicial to Manley. He also explained that he did not ask for a mistrial

because he believed the case was going well for the defense at that point.

       The same judge that conducted the trial presided over the post-conviction proceedings.

In her findings of fact, the judge indicated that she ordered the courtroom cleared “because of

conduct observed by the Court of persons in the gallery prior to [co-defendant’s] testimony that

appeared to be intended to intimidate witnesses.” She “had information about gang signs and

threatening gestures being made by people in the gallery.” The judge admitted that the record

made at the trial was “perhaps” not as complete as it could have been, but indicated that she had

real security concerns during the trial, including specific concerns about threats and intimidation

as to this particular witness. The judge noted that she had specific recollections of her concerns.

She concluded that trial counsel was not ineffective for objecting in the way he did to the

closing, that the temporary closing was warranted and that the outcome of the trial would not

have been different had the courtroom not been temporarily closed.

       We find no clear error in the motion court’s findings and conclusions. First, the closure

was proper. The right to a public trial was created for the benefit of the defendant because

openness in criminal proceedings encourages witnesses to come forward, discourages perjury

and ensures that the judge and prosecutor carry out their duties responsibly. Waller v. Georgia,

467 U.S. 39, 45 (1984). But a defendant’s right to a public trial is not without limitation. Id.; see

also Williams, 328 S.W.3d at 370. The presumption favoring openness may be overcome by an

overriding interest, as long as the closure is based on findings that any limitations placed on the

right to public trial were essential to avoid prejudice to that interest. Williams, 328 S.W.3d at



                                                 5
370. Thus, it must be evident from the record that the court engaged in the following four-part

inquiry: (1) there must be an articulated overriding interest that is likely to be prejudiced without

closure, (2) the closure must be no broader than necessary to protect that interest, (3) the court

must consider reasonable alternatives to closure and (4) the court must make findings adequate to

support the closure. Id.; see also Waller, 467 U.S. at 48.

       Here, the judge observed people in the gallery making gang signs and threatening

gestures intended to intimidate the witness. The prevention of witness intimidation is a sufficient

interest worthy of protection. See Presley v. Georgia, 558 U.S. 209, 215-16 (2010) (there are

“no doubt circumstances” where “safety concerns” warrant closure); see also, e.g., United States

v. Laureano-Perez, 797 F.3d 45, 77-78 (1st Cir. 2015) (defendant’s family members, who were

making faces and mouthing words of disapproval at witness, were properly excluded from

courtroom). The closure in this case was no broader than necessary to protect that particular

interest because it was limited to only the time that Manley’s co-defendant was testifying.

Moreover, by excluding everyone—not just Manley’s associates—the court tailored the closing

in a balanced way that addressed both the need to protect that witness and the need to limit

prejudice to Manley. In this way, the court at least implicitly considered and rejected a narrower

alternative for good reason. See Laureano-Perez, 797 F.3d at 78 (implicit consideration of

alternatives sufficient). Finally, though the court admitted the findings at trial could have been

more specific, the record as a whole is sufficient for us to review the basis of the court’s closure.

See id.; see also Presley, 558 U.S. at 215-16 (particular interest to be protected by closure must

“be articulated along with findings specific enough that a reviewing court can determine whether

the closure order was properly entered”).




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         Second, because temporarily closing the courtroom in this case comported with Manley’s

constitutional right to a public trial, counsel cannot be found ineffective for failing to object to it

on that ground. Thus, we find no clear error in the motion court’s conclusion that counsel

properly objected based on his concern for the prejudicial impact the increased security in the

courtroom may have had on Manley—a concern at least partially alleviated by the removal of the

entire gallery audience instead of singling out Manley’s associates. There is also no clear error

in the conclusion that it was reasonable trial strategy for counsel not to seek a mistrial at this

time, both because closure was proper and because counsel articulated that he would not have

asked for a mistrial anyway given that he believed the case was going well for the defense.

Finally, having failed to demonstrate that counsel’s performance was deficient under the first

prong of the Strickland analysis, we need not reach the prejudice prong.2

         Point II is denied.

         The judgment is affirmed.




                                                       ROBERT G. DOWD, JR., Presiding Judge


Mary K. Hoff, J. and
Roy L. Richter, J., concur.




2
  Manley claims he does not need to prove prejudice in this case because the denial of a right to a public trial is a
structural error for which prejudice is presumed. There being no error in the first place, there is no basis for finding
prejudice under a Strickland analysis or for presuming prejudice under a structural error analysis. See Everage v.
State, 229 S.W.3d 99, 102 (Mo. App. W.D. 2007).

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