                        In the Missouri Court of Appeals
                                Eastern District
                                          DIVISION FOUR

JERRY A. RUTLIN,                                      )        No. ED100126
                                                      )
         Movant/Appellant,                            )        Appeal from the Circuit Court of
                                                      )        St. Francois County
vs.                                                   )
                                                      )        Honorable Sandra Martinez Levy
STATE OF MISSOURI,                                    )
                                                      )
         Respondent.                                  )        Filed: June 30, 2014

                                              Introduction

       Jerry Rutlin (Movant) appeals the trial court’s judgment denying his Rule 29.15

motion for post-conviction relief without an evidentiary hearing. Movant claims the

motion court clearly erred in denying post-conviction relief based on his claims that: (1)

his trial counsel was ineffective for failing to call Movant’s former cellmate to testify at

trial; and (2) appellate counsel was ineffective for failing to raise a claim on appeal that

the trial court plainly erred in prohibiting the defense from implicating Movant’s cellmate

during closing arguments. We affirm.

                                        Factual Background

         In 2009, Movant was an inmate at the Eastern Reception Diagnostic and

Correctional Center.1 On June 1, 2009, Movant moved into a new cell that was also


1
  The record indicates that Movant has been incarcerated since 1998 for convictions of first-degree robbery,
tampering, and possession of a controlled substance. While incarcerated, Movant was convicted on

                                                          1
occupied by Reginald Parker. On that same day, corrections officers inspected Movant’s

cell in his presence.          The inspection revealed no contraband.                  Prior to Movant’s

occupancy, the cell was inspected on May 19, 2009 and on May 27, 2009, and no

contraband was found. On June 7, 2009, corrections officers David Wallace and Joshua

Browers conducted a random search of Movant’s cell.                       During the search, Wallace

discovered a prison-made weapon under the mattress assigned to Movant. The weapon

was hidden under clothing with Movant’s name and Department of Corrections number.

The weapon was a razor handle with a razor blade melted into the end of it. Wallace

secured the weapon and completed the search.

         Movant was charged with the class B felony of concealing a weapon on the

premises of a correctional facility, in violation of § 217.360, RSMo (Supp. 2003).2 The

case was tried to a jury. At a pre-trial hearing on a motion in limine filed by the State, the

State requested that the defense be prohibited from eliciting testimony aimed at

incriminating either Parker or Cedric Clerk, a fellow inmate who had previously occupied

the cell. Defense counsel indicated that Clerk would testify that when he was transferred

out of the cell into a segregated unit of the facility, that he left behind a weapon under his

bunk.      Counsel argued that Clerk’s testimony would be relevant to refute the

“knowledge” element of the charged offense to show that Movant did not “knowingly”

possess or conceal the weapon found in his cell. After hearing arguments, the trial court

agreed to allow Clerk to testify but sustained the motion with regard to prohibiting the


separate counts of possession of a controlled substance in 2001 and 2004, respectively. In 2003, Movant
was convicted of unlawful use of a weapon at a correctional facility.
2
  Pursuant to § 217.360.1(4), “[i]t shall be an offense for any person to knowingly . . . have in his
possession, deposit or conceal in or about the premises of any correctional center . . . (4) Any gun, knife,
weapon, or other article or item of personal property that may be used in such manner as to endanger the
safety or security of the correctional center or as to endanger the life or limb of any offender or employee
of such a center.”

                                                           2
defense from attempting to implicate Parker absent any evidence directly connecting him

to the weapon.

         At trial, Clerk testified that he was serving two life sentences without the

possibility of parole and that he had previously occupied Movant’s cell. Clerk said that

he and Movant had been friends for several years while incarcerated and that Movant had

asked him to testify on his behalf. Clerk indicated that when he moved out of the cell on

or around May 29, 2009, he left behind a weapon beneath some clothes under his bunk.

He described the weapon he left as a razor blade attached to the handle of a black comb.

         Movant testified in his own defense. While admitting that correctional officers

found a weapon in his cell, Movant testified that he was “set-up,” that the weapon did not

belong to him, and that he did not know to whom the weapon belonged.3 Movant

indicated that if he had hidden a weapon, it would not have been found. Movant said that

he asked Clerk if he had left “something in that cell” when he moved out and that Clerk

indicated that he had left a weapon in the cell. Movant admitted that his cell had been

inspected on June 1, 2009 and no weapon was found. The jury found Movant guilty of

the charged offense and he was sentenced, as a prior and persistent offender, to life

imprisonment. Movant filed a motion for new trial, which was denied. At the sentencing

hearing, Movant indicated that while he had some issues to raise on appeal, he was

otherwise satisfied with counsel’s services. On direct appeal, this Court affirmed his

conviction and sentence in a per curiam order and memorandum in State v. Rutlin, 383

S.W.3d 63 (Mo. App. E.D. 2012).




3
 After initially claiming the prison guards planted the weapon in his cell, Movant later admitted this was
untrue.

                                                          3
         Movant subsequently filed a Rule 29.15 pro se motion for post-conviction relief.

An amended motion was filed by appointed counsel alleging ineffective assistance of

both trial counsel and appellate counsel.4 In June 2013, the motion court issued its

judgment denying post-conviction relief without an evidentiary hearing. Movant appeals.

                                         Standard of Review

         Appellate review of the denial of a motion for post-conviction relief is limited to a

determination as to whether the motion court’s findings of fact and conclusions of law are

clearly erroneous. Rule 29.15(k). A judgment is clearly erroneous when there is a

definite and firm impression that a mistake has been made after reviewing the entire

record. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009). The trial court’s ruling

on a post-conviction motion is presumed correct. Id.

         “There is a strong presumption that counsel made all significant decisions in the

exercise of reasonable professional judgment.” White v. State, 939 S.W.2d 887, 895 (Mo.

banc 1997). To prove ineffective assistance of counsel, the movant must show that

counsel’s performance did not conform to the degree of skill, care, and diligence of a

reasonably competent attorney and that he was thereby prejudiced. Glass v. State, 227

S.W.3d 463, 468 (Mo. banc 2007). To demonstrate prejudice, the movant show that

absent the claimed errors, there is a reasonable probability that the outcome of the trial

would have been different. Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009). Movant

must overcome the strong presumption that counsel’s performance was reasonable and

effective. Bradley v. State, 292 S.W.3d 561, 564 (Mo. App. E.D. 2009).


4
  Although the record indicates that Movant’s amended motion was untimely filed by one day, a remand to
the motion court on this basis would serve no purpose beyond delay in light of the fact that the record does
not indicate that Movant caused the delay and the motion court ruled on the claims raised in the amended
motion. See State v. Kelley, 901 S.W.2d 193, 204 (Mo. App. W.D. 1995).

                                                          4
                                        Discussion

                            Point I: Failure to Call a Witness

       In his first point, Movant contends that the motion court erred in denying his post-

conviction motion without an evidentiary hearing because he alleged unrefuted facts that

would have entitled him to post-conviction relief. Specifically, Movant argues that his

trial counsel was ineffective for failing to investigate and call his former cellmate,

Reginald Parker, to testify at trial. Movant claims that Parker’s testimony would have

revealed “his strong motive and opportunity to plant a weapon” under Movant’s bunk.

Movant asserts that Parker would have testified that he resided in the cell with Movant,

that he was an eyewitness to the search, and that he did not believe the search was

random. Movant maintains that without Parker’s testimony, he was unable to present a

complete defense by establishing all of the relevant circumstances, and as a result, the

jury was left with an “incomplete context” for his case.       Movant claims that defense

counsel’s failure to call Parker to testify was unreasonable because he was the “only other

person assigned to the cell where the weapon was found.”

       The motion court is not required to grant an evidentiary hearing unless: (1) the

movant alleges facts, not conclusions, which if true, would entitle movant to relief; (2)

the facts alleged are not refuted by record; and (3) the matters complained of prejudiced

movant. State v. Ferguson, 20 S.W.3d 485, 503 (Mo. banc 2000). To warrant a hearing

on a claim that defense counsel was ineffective for failing to call a witness to testify, the

movant must allege: (1) the identity of the witness; (2) what the witness’s testimony

would have been; (3) that counsel was informed of the witness’s existence; and (4) the

witness was available and would have testified. State v. Simmons, 875 S.W.2d 919, 923



                                                 5
(Mo. App. W.D. 1994). Movant must also show that the witness’s testimony would have

provided a viable defense. Glass, 227 S.W.3d at 468. “Failure to interview a witness is

rarely sufficient to support a claim of ineffective assistance of counsel.” Teaster v. State,

29 S.W.3d 858, 860 (Mo. App. S.D. 2000). Trial counsel’s decision not to call a witness

to testify is presumptively a matter of trial strategy and will not support a claim of

ineffectiveness unless the movant clearly establishes otherwise. Whited v. State, 196

S.W.3d 79, 82 (Mo. App. E.D. 2006).

       The burden is on the movant to plead unrefuted facts establishing not only who

the witness is, but also what the witness would testify to, if called, and that the witness’s

testimony would provide a viable defense. White, 939 S.W.2d at 896.              Where the

proposed testimony would merely have impeached the State’s witnesses, relief on a claim

of ineffective assistance of counsel is not warranted. McClendon v. State, 247 S.W.3d

549, 556 (Mo. App. E.D. 2007). Further, “neither the failure to call a witness nor the

failure to impeach a witness will constitute ineffective assistance of counsel unless such

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

v. Ferguson, 20 S.W.3d 485, 506 (Mo. banc 2000).

       “An evidentiary hearing is not a means by which to provide movant with an

opportunity to produce facts not alleged in the motion.” Brooks, 960 S.W.2d at 497.

Here, the amended motion does not allege that Parker was available to testify or that he

would have testified.    Nor does the motion allege that Parker’s testimony would have

established that Movant did not commit the crime. Rather, Movant merely alleged that

Parker’s testimony would have “added context to Movant’s defense” by establishing the

relevant circumstances. Specifically, Movant asserts that it is “expected” that Parker



                                                 6
would testify that he shared a cell with Movant, that he had informed on other inmates in

the past, that he had been convicted of child molestation, that he knew how to hide and

plant a weapon, that the weapon belonged to someone else, that the cell search was not

random, and that he knew the guards were going to search the cell prior to doing so.

Movant also alleged that he informed his attorney that he did not know who placed the

weapon under his bunk, that he did not get along with Parker, that Parker had complete

access to all areas of his cell, and that Parker could testify about the “numerous times that

their shared cell was open and accessible to other inmates and guards.”

       It is clear from the record of the pre-trial hearing on the State’s motion in limine

that defense counsel did not intend to call Parker as a witness. Instead, defense counsel

asserted that he planned to call Clerk as a witness to testify that he left the weapon in

Movant’s cell when he transferred into a segregated unit of the facility. Counsel argued

that Clerk’s testimony would be relevant to “refute” the knowledge element of the

charged offense in order to show that Movant did not “knowingly” possess or conceal a

weapon. Although counsel indicated that he wanted to show that Parker had access to the

area where the weapon was found, he did not indicate that he planned to call Parker as a

witness.   This was apparent when asked by the trial court whether Parker would be

testifying that he knew about or planted the weapon, and defense counsel replied, “No.”

       The trial court’s ruling specifically prohibited the defense from implicating Parker

at trial in the absence of sufficient evidence directly connecting him to the weapon.

Counsel acknowledged that the defense did not have such evidence. Given the lack of

evidence connecting Parker to the crime as well as the trial court’s ruling prohibiting the




                                                 7
defense from otherwise implicating Parker, we are unable to conclude that counsel’s

decision not to call Parker to testify was unreasonable.

       In any event, Movant fails to show that he was prejudiced. In the absence of

allegations that a witness’s testimony would have provided a viable defense, the movant

fails to demonstrate prejudice. See State v. Gollaher, 905 S.W.2d 542, 548 (Mo. App.

E.D. 1995).    Where a witness’s testimony would not unqualifiedly support the defense,

counsel’s decision not to call the witness does not constitute ineffective assistance. State

v. Johnson, 901 S.W.2d 60, 63 (Mo. banc 1995).

       Although Movant maintains that Parker’s testimony would have “reasonably

changed the outcome” of the trial, he fails to explain how the proffered testimony would

have provided a viable defense. Movant did not allege that the testimony would have

established that Movant did not commit the crime, nor does Movant claim that Parker

would have testified that he planted the weapon under Movant’s bunk. To the contrary,

in his brief, Movant asserts that Parker would probably testify that he did not plant the

weapon.

       Moreover, much of the information that Movant contends that Parker would have

provided was either already in evidence or refuted by the record. For instance, the jury

was well aware that Movant had a cellmate named Parker. During his opening statement,

defense counsel specifically stated that the cell was occupied by both Movant and Parker.

Counsel also said that a “routine cell search” was done and that the weapon was found

under Movant’s bunk and that Parker’s property was not searched. Officer Wallace

testified that both Parker and Movant occupied the cell where the weapon was found.

Wallace also said the search was random and that he did not receive a tip. Movant



                                                 8
testified that Parker had access to the entire cell. Movant’s assertion that Parker would

have testified that the search was “not random” is purely conclusory and contrary to

testimony by the correctional officers who performed the cell search as well as defense

counsel’s opening remarks to the jury. Additionally, Movant’s assertion that Parker was

“present when the search was conducted” and that he would have testified that he was an

“eyewitness to the search” is directly refuted by the record. Officer Wallace testified that

prior to a cell search by correctional officials, the inmates are instructed to exit the cell,

then directed to wait in another area of the facility, so they are not present during the

search.

          In denying this claim, the motion court found that Movant presented no basis to

show that Parker would have incriminated himself or provided testimony to absolve

Movant. The court further found that trial counsel could not be deemed ineffective for

failing to call a witness “solely to impeach or rebut the State’s evidence” and that relief

was not warranted without facts to establish a defense. We agree. In the absence of

specific allegations that Parker’s testimony would have provided a viable defense,

Movant has failed to demonstrate that he was prejudiced. See Gollaher, 905 S.W.2d at

548. The motion court did not clearly err in denying this claim. Point I is denied.

                   Point II: Ineffective Assistance of Appellate Counsel

          In his second point, Movant contends that his appellate counsel was ineffective

for failing to raise a claim on direct appeal regarding the trial court’s pre-trial ruling on

the State’s motion in limine.     Specifically, Movant complains that appellate counsel

should have challenged the trial court’s ruling prohibiting the defense from arguing that

Parker “may have had something to do with the weapon.” Movant claims that had



                                                  9
appellate counsel raised this issue on direct appeal, there is a reasonable probability that

his conviction would have been reversed and remanded for a new trial. We disagree.

       “To support a Rule 29.15 motion due to ineffective assistance of appellate

counsel, strong grounds must exist showing that 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 lawyer would have recognized it and asserted

it.” Moss v. State, 10 S.W.3d 508, 514 (Mo. banc 2000). Movant must also show that

“the claimed error was sufficiently serious to create a reasonable probability that, if it was

raised, the outcome of the appeal would have been different.” Anderson v. State, 196

S.W.3d 28, 36 (Mo. banc 2006). Where the alleged error was not preserved, the right to

relief based on ineffective assistance of appellate counsel tracks the plain error rule. Id.

That is, the alleged error by appellate counsel must be so substantial as to amount to a

manifest injustice or a miscarriage of justice. Id.

       Movant must overcome the strong presumption that counsel’s conduct fell within

the wide range of reasonable professional assistance and that, under the circumstances,

the challenged action might be considered sound trial strategy. Holman v. State, 88

S.W.3d 105, 110 (Mo. App. E.D. 2002) (citing Strickland v. Washington, 466 U.S. 668,

689 (1984)). Appellate counsel has no duty to present every issue asserted in a motion

for new trial, nor is counsel required to raise claims based on unpreserved issues that

could only be considered for plain error. See, e.g., Holman, 88 S.W.3d at 110; see also

Helmig v. State, 42 S.W.3d 658, 682 (Mo. App. E.D. 2001).

       As the State correctly points out, a trial court’s ruling on a motion in limine

preserves nothing for review unless objections are made at the appropriate time during



                                                 10
the case. State v. Copeland, 928 S.W.2d 828, 848 (Mo. banc 1996); State v. Gray, 812

S.W.2d 935, 939 (Mo. App. S.D. 1991). To preserve such an issue for review, where an

objection has been sustained on a motion in limine, an offer of proof must be made at

trial. Wilkerson v. Prelutsky, 943 S.W.2d 643, 646 (Mo. banc 1997). This was not done

here. Nor was the claim included in Movant’s motion for new trial. Therefore, the

alleged error, which Movant now claims should have been raised on appeal, was not

preserved for appellate review.     Because the claim was not preserved for appellate

review, it would have been necessary for appellate counsel to argue the issue under the

plain error standard. As plain error review is discretionary, Movant fails to show that this

Court would have considered the claim. See State v. Tisius, 92 S.W.3d 751, 767 (Mo.

banc 2002). In any event, counsel cannot be deemed ineffective for failing to raise an

unpreserved claim of error on appeal. See Holman, 88 S.W.3d at 110.

       Even assuming arguendo, that appellate counsel had raised this claim on appeal,

Movant fails to demonstrate that the outcome would have been different. See Anderson,

196 S.W.3d at 36. It is well-settled that during closing arguments, “[a] party may argue

inferences justified by the evidence, but not inferences unsupported by the facts.” State

v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006) (quoting State v. Barton, 936 S.W.2d

781, 783 (Mo. banc 1996)). Movant’s assertion that the evidence was sufficient for the

defense to suggest during closing arguments that Parker may have played a role in

concealing the weapon is based primarily on Clerk’s testimony that he left a weapon in

the cell, and that during a brief period of time, Parker was the sole occupant with

exclusive control of the cell.   In sustaining the State’s motion in limine, it is clear from

the record that the trial court did not believe there was sufficient evidence connecting



                                                 11
Parker to the weapon found under Movant’s bunk, as reflected by the following exchange

at the pre-trial hearing:

        THE COURT: But with respect to Mr. Parker, what evidence other than
        speculation do you have that he found this weapon? Is there anyone who
        is going to testify that Parker knew the weapon was there, that Parker saw
        the weapon, that he had – or is it just pure and total speculation that
        because he was in the cell he must have been the one that found it and then
        put it under the defendant’s bed? I mean, is there something else? I think
        the State said we don’t know if you have other, and if you do, of course,
        that would change, but my question to you is what else do you have with
        respect to Mr. Parker other than Clerk saying he had a weapon, it was
        there when he left, Parker came in and we must speculate that he must
        have been the one that put it there?

        [DEFENSE COUNSEL]: We don’t have anything else right now, Judge.

                        *                     *                      *

        THE COURT: [T]he case law is very, very clear and states that you have
        to have some act that directly ties this person. . . . Even if we had
        something that says that Mr. Parker pulled out the knife or the weapon and
        looked at it, or he knew it was there, there’s got to be something that ties
        Mr. Parker to this hand-made weapon, or some awareness of it. It can’t
        just be speculation that I left a knife there and Parker was there so it must
        have been Parker[.]

        In denying this claim, the motion court found that Movant was properly precluded

from casting suspicion on Parker because there was no evidence connecting Parker to the

weapon found under Movant’s bunk. The motion court further found that Movant failed

to allege any “new or overlooked evidence” sufficient to connect Parker to the weapon.

        The trial court cannot be convicted of abusing its discretion in confining closing

arguments to inferences supported by the evidence. See State v. Dickson, 337 S.W.3d

733, 742 (Mo. App. S.D. 2011).        Here, the record reveals no conclusive evidence to

establish that Parker knew about the weapon, or that he held onto the weapon purportedly

left behind by Clerk, or that it was even the same weapon, much less that he concealed



                                                  12
the weapon from prison officials and then planted it under Movant’s bunk.            The

description of the weapon allegedly left behind by Clerk was not entirely consistent with

the weapon found under Movant’s bunk. Moreover, the record shows that no weapons

were found during the two previous cell searches, nor during the inspection of Movant’s

cell on the day he moved in.

       Without sufficient evidence, Movant’s bare assertions that Parker may have

“played a role” and “may have had something to do with the weapon” are purely

speculative.   Evidence that merely casts suspicion upon another person or raises a

conjectural inference that someone else may have committed the crime in question is

inadmissible. State v. Brown, 916 S.W.2d 420, 423 (Mo. App. E.D. 1996). Here, the

motion court’s ruling is supported by the lack of evidence connecting Parker to the

weapon. Counsel cannot be deemed ineffective for failing to challenge the trial court’s

decision to preclude the defense from implicating another person absent proof of some

act directly connecting the person to the crime. See State v. Davidson, 982 S.W.2d 238,

242 (Mo. banc 1998). Accordingly, the motion court did not clearly err in denying this

claim. Point II is denied.

                                      Conclusion

       For the foregoing reasons, the motion court’s judgment is affirmed.


                                                    _____________________________
                                                    Philip M. Hess, Judge


Lisa Van Amburg, P.J. and
Patricia L. Cohen., J. concur.




                                               13
